Commonwealth v. McDermott

NOTICE: All slip opinions and orders are subject to formal

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SJC-13394

COMMONWEALTH vs. WILLIAM F. McDERMOTT.

Norfolk. October 2, 2023. - January 25, 2024.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,

& Georges, JJ.1

Homicide. Evidence, Cross-examination. Practice, Criminal,

Postconviction relief, Conduct of prosecutor, Cross-

examination by prosecutor, Argument by prosecutor,

Instructions to jury, Sentence. Estoppel. Constitutional

Law, Sentence. Due Process of Law, Sentence.

Indictment found and returned in the Superior Court

Department on November 30, 1981.

Following review by this court, 393 Mass. 451 (1984), a

motion for a new trial, filed on October 27, 2020, was heard by

Brian A. Davis, J.

The Supreme Judicial Court granted an application for

direct appellate review.

K. Hayne Barnwell for the defendant.

Michael McGee, Assistant District Attorney, for the

Commonwealth.

The following submitted briefs for amici curiae:

1 Justice Cypher participated in the deliberation on this

case prior to her retirement.

2

Stephen Cook, of California, W. Lydell Benson, Jr., of New

York, Eileen Hren Citron, William A. Bejan, & Leslie Epstein

Wallace, of the District of Columbia, Radha Natarajan, &

Katharine Naples-Mitchell for New England Innocence Project &

another.

Jeremy M. McLaughlin & Andrew J. Wu, of California,

Nicholas N. Chan & Krishna Hedge, of Pennsylvania, & Peter W.

Shanley for Massachusetts LGBTQ Bar Association & others.

Stanley Donald, pro se.

GAZIANO, J. In 1982, a Superior Court jury convicted the

defendant, William F. McDermott, of murder in the first degree.

On direct review, we held that the trial judge had erred in

failing to instruct the jury that evidence of intoxication could

be considered in determining whether the defendant acted with

extreme atrocity or cruelty as to support a verdict of murder in

the first degree. See Commonwealth v. McDermott, 393 Mass. 451,

459, 461 (1984). Rather than ordering a new trial, the court

exercised its authority pursuant to G. L. c. 278, § 33E, and

reduced the verdict to murder in the second degree "given the

entire posture of the case." Id. Mitigating factors included

that the defendant was "just seventeen years old at the time of

the incident, academically deficient, with some drug and alcohol

problems . . . and [had] a poor relationship with his father."

Id. at 460-461. The court also noted the defendant's "sexual

confusion" and evidence that he killed the victim "following,

and in fear of repetition of, an anal rape." Id. at 461.

3

In 2020, the defendant filed a second motion for a new

trial, raising three issues:2 first, the prosecutor's cross-

examination and closing argument inserted homophobic invective

into the case and were otherwise highly inflammatory; second,

the judge failed to instruct the jury properly on self-defense,

excessive use of force in self-defense, sudden provocation, and

sudden combat; and third, a sentence of life with the

possibility of parole, imposed on an individual seventeen years

old at the time of the fatal shooting, is prohibited by the

Eighth Amendment to the United States Constitution and art. 26

of the Massachusetts Declaration of Rights. While finding that

the prosecutor engaged in misconduct, a Superior Court judge

(motion judge) nonetheless denied the motion for postconviction

relief without an evidentiary hearing.

We adopt the motion judge's finding of prosecutorial

misconduct. Although the prosecutor had a right to challenge

the defense, which focused on the victim's alleged undisclosed

sexual orientation and workplace sexual assault, portions of the

cross-examination and closing argument went beyond the bounds of

2 In his first motion for a new trial, filed in 2004, the

defendant argued that the trial judge's jury instructions on

malice aforethought and provocation erroneously shifted the

burden of proof. A Superior Court judge denied the defendant's

motion, and that decision was affirmed by the Appeals Court in

an unpublished opinion. See Commonwealth v. McDermott, 65 Mass.

App. Ct. 1112 (2006). This court denied further appellate

review. See 446 Mass. 1104 (2006).

4

a permissible response. Despite these transgressions, we

conclude that the errors arising from the prosecutor's

misconduct, considered in context of the overwhelming evidence

against the defendant and its likely influence on the verdict,

did not create a substantial risk of a miscarriage of justice.

Next, we hold that the defendant's challenges to the self-

defense jury instructions are estopped by prior postconviction

rulings, and any error in the provocation jury instructions did

not create a substantial risk of a miscarriage of justice.

Finally, we conclude that neither the Eighth Amendment nor art.

26 bars the defendant from serving a sentence of life with the

possibility of parole after fifteen years for the crime of

murder in the second degree. Accordingly, the denial of the

defendant's motion for a new trial is affirmed.3

Background. 1. Facts. a. Commonwealth's case. In the

fall of 1981, the seventeen year old defendant met Robert Kemp,

the manager of the Cohasset Golf Club (club). Kemp, sometime in

October 1981, hired the defendant as a maintenance worker. At

the time, Kemp owned a .22 caliber Sentinel revolver with a

capacity of nine rounds. He kept the firearm in a filing

3 We acknowledge amicus briefs submitted by the New England

Innocence Project and the Criminal Justice Institute at Harvard

Law School; the Massachusetts LGBTQ Bar Association, GLBTQ Legal

Advocates & Defenders, and the Massachusetts Association of

Criminal Defense Lawyers; and Stanley Donald.

5

cabinet in his office. The filing cabinet also held a box

containing petty cash in an amount ranging from one hundred

dollars to $500.

On November 20, 1981, at around 1 P.M., one of Kemp's

friends visited him at work. When the friend left, between 2:30

P.M. and 3 P.M., he observed Kemp's car parked in the parking

lot. An hour later, a club member arrived to pick up meat he

had purchased from the club. While Kemp and the club member

spoke in the kitchen, the defendant carried two boxes of meat to

the club member's car, placing the boxes behind the car. The

defendant then returned to work. The club member described the

defendant as a considerate and polite young man.

At approximately 4 P.M., Kemp called his wife, who expected

him home at around 5:30 P.M. When Kemp did not come home that

evening, his wife searched for him all night and into the early

morning hours without success. Meanwhile, at 8:30 P.M.,

Marshfield police observed Kemp's car parked near a burned-down

church in the Green Harbor section of town but had no reason at

the time to investigate. The car remained parked there

overnight.

The club's chef reported for work the next morning. He

observed blood droplets on the kitchen floor, a towel soaked in

blood under the sink, a bloody squeegee beside the sink, and

Kemp's eyeglasses on the floor behind a pan rack. The chef

6

alerted the police. Responding police officers noticed

additional blood spots near the stairs leading into the club and

bloody drag marks on a hallway carpet. They located Kemp's

revolver outside the kitchen atop a stone wall below a deck. It

contained three spent cartridge casings (one casing within the

chamber directly under the hammer and the other two side-by-

side) followed by six consecutive empty chambers. The officers

observed two bullet holes in the kitchen -- one projectile had

passed through a wooden door and the other impacted a concrete

block wall.

That afternoon, a neighbor discovered Kemp's body in a

ditch within a wooded area near the eighteenth hole of the golf

course. Kemp was fully clothed with the pockets of his pants

turned inside out. Missing were his wedding band, gold watch,

and wallet. Police found four spent .22 caliber cartridge

casings on the ground near Kemp's body. Kemp died from eleven

or twelve gunshot wounds: four to the right side of his head,

one to his right cheek, two to his chest, four to his back, and

one that exited his torso and lodged into his right elbow. A

State police ballistician opined that the eleven projectiles

removed from Kemp's body, as well as the spent cartridge casings

found in the revolver and near the body, were fired from Kemp's

revolver.

7

While searching Kemp's car, investigators found the club's

petty cash box and bloodstains on the back seat. Outside the

vehicle in a wooded area, police also located two sets of keys

to the car and Kemp's bloodstained jacket, which had six bullet

holes in the upper body area.

At the time of the shooting, the defendant lived with his

parents approximately two miles from the church parking lot. In

a search of the defendant's bedroom, various bloodstained

articles of clothing -- including jeans, underwear, shoes, and a

jacket -- were discovered. On November 23, 1981, the defendant

was arrested at his sister's house in Pennsylvania, where he had

fled the day after the fatal shooting.

b. Defendant's version. The defendant testified that he

met Kemp in September 1981 while he was hitchhiking to a party

in Marshfield. Later that day, Kemp offered the defendant a

"big money" maintenance job at the club. Within a few days, the

defendant called Kemp to follow up on the job offer. Kemp

picked up the defendant at a fast-food restaurant, bought him

alcohol, and offered the defendant thirty dollars if Kemp could

perform oral sex on him. The defendant agreed, and they drove

to a nearby cemetery. The defendant was unable to become

aroused during the sex act, but Kemp paid him anyway.

On October 2, 1981, the defendant, accompanied by his

girlfriend, filled out a job application at the club.

8

Afterward, the three of them went to a bar, where Kemp got the

defendant alone and begged to perform oral sex on him. After

dropping off the defendant's girlfriend, Kemp and the defendant

snorted cocaine purchased by Kemp and attempted to have oral

sex. Kemp, once again, paid the defendant thirty dollars.

The pattern continued over the next three weeks or so:

Kemp supplied the defendant with alcohol and narcotics, placed

his mouth on the defendant's penis, and gave him thirty dollars

each time. Kemp also pressured the defendant for anal sex,

asking the defendant to let Kemp "put it up [his] bum." One

time, Kemp bragged about knowing "people in Rhode Island" who

break legs, cut off "pricks," and stuff them in their victim's

mouths.

On November 20, 1981, the defendant telephoned Kemp to see

if he was needed at work. Kemp told the defendant to finish

painting the women's bathroom and that he would pay his taxicab

fare. The defendant arrived at around 1:30 P.M. Kemp was

inside his office talking to a friend. The defendant consumed a

mixed drink, served by Kemp, and went upstairs to the second

floor to paint the bathroom. While working, the defendant drank

a few more mixed drinks and smoked marijuana.

After completing the painting, the defendant was on a

ladder removing tape from the ceiling when Kemp entered the

bathroom. Kemp grabbed the defendant by the penis and told him

9

he needed to comply to keep both his job and his "prick." The

defendant testified:

"[H]e forced me down on the couch and took off my pants,

and he put his penis in my bum. He had his hands wrapped

around me -- around my waist. . . . He [then] got up and

left for some reason. He threw me a hundred-dollar bill

and told me I liked it."

The defendant was frightened, felt violated, and was in pain

from the sexual assault. He also felt disorientated from the

alcohol and drugs he had consumed earlier that day.

The defendant dressed and went downstairs to the kitchen,

where Kemp was speaking to a club member. The defendant carried

meat to the club member's car. He attempted to enter the car,

but the doors were locked. He then returned to the kitchen. As

soon as the club member left, Kemp grabbed the defendant by his

hair and jacket, and kicked him on the backside. Kemp insisted

that they "finish." They returned to the second-floor bathroom,

where Kemp ordered the defendant to remove his pants. The

defendant managed to break free from Kemp by telling him that he

needed to use the bathroom. Kemp removed his revolver from his

waistband, slamming it down on the vanity.

The defendant grabbed the firearm and ran downstairs to the

kitchen. Kemp chased after him. The defendant tripped, fell on

the ground, and fired the revolver in Kemp's direction as he got

up. He did not aim the firearm, nor did he see Kemp as he

fired. Kemp fell to the kitchen floor.

10

The defendant was confused and disoriented. In this

panicked state, he attempted to clean up the blood spilled from

Kemp's body. He then dragged Kemp outside and into the car.

The defendant dropped Kemp's body in a ditch by the side of the

road. He denied shooting Kemp while he was in the ditch or

reloading the nine-shot revolver. He also denied rummaging

through Kemp's pockets or stealing his money or jewelry. The

defendant drove to Marshfield, parked in a church parking lot,

tossed the keys into a wooded area, and walked home. The next

day, after purchasing a train ticket with the one hundred dollar

bill Kemp had thrown at him, he traveled to Pennsylvania.

The defendant called Peter Werner to testify that Kemp was

not open about his sexual orientation and used his position as

club manager to proposition young men. Werner, age twenty-two,

described a sexual encounter with Kemp at a highway rest area on

or around October 20, 1981. Werner stopped at the rest area to

meet other men. He met an individual, matching Kemp's

description, who introduced himself as "Robert Kemp" and wore a

windbreaker embroidered "Bob" and a "Cohasset Golf Club" cap.

Kemp asked Werner if he wanted to "fool around." They walked to

a remote area where Kemp paid Werner thirty dollars so that Kemp

could perform oral sex on him. Kemp "began to blow" Werner, but

Werner could not get an erection because Kemp "didn't turn [him]

on." Werner testified, "I then proceeded to masturbate myself,

11

and he did the same to himself." Prior to the sex act, Kemp

offered Werner a maintenance job. They met again, by chance, a

week later at another rest area. Werner explained that he did

not pursue the job opportunity because he knew that Kemp would

demand sex "all the time."

c. Rebuttal evidence. The Commonwealth called several

witnesses on rebuttal. Kemp's wife testified that they were

married for fourteen years and had three children, ages five,

nine, and twelve. She had no suspicions that her husband was

gay. A seventeen year old club employee testified that Kemp did

not proposition him and that he never observed Kemp supply the

defendant with alcohol. In addition, a State police trooper,

who interviewed Werner before trial, testified to Werner's prior

inconsistent statements. Werner told the officer that the

incident took place "sometime in September of 1981," and that

the man introduced himself as "Bob" (not "Robert Kemp").

Describing the encounter, Werner stated that Kemp offered to

fellate him in exchange for twenty dollars. Werner did not want

to have oral sex with Kemp, so they "struck a bargain" for Kemp

to masturbate in Werner's presence for the fee of twenty

dollars.

2. Prior proceedings. A grand jury returned indictments

charging the defendant with murder in the first degree, G. L.

c. 265, § 1, and armed robbery, G. L. c. 265, § 17. Following a

12

nine-day trial, a Superior Court jury convicted the defendant of

murder in the first degree and acquitted him of armed robbery.

On direct appeal, this court exercised its authority under G. L.

c. 278, § 33E, and ordered the verdict reduced to murder in the

second degree. See McDermott, 393 Mass. at 459, 461.

On August 3, 2004, the defendant filed his first motion for

a new trial, alleging that the trial judge's malice and

provocation instructions impermissibly shifted the burden of

proof. The motion judge denied the defendant's request for

postconviction relief, which was affirmed by the Appeals Court

in an unpublished decision in 2006. See Commonwealth v.

McDermott, 65 Mass. App. Ct. 1112 (2006). This court denied the

defendant's application for further appellate review. See 446

Mass. 1104 (2006).

The defendant, in October 2020, filed his second motion for

a new trial, and a motion to stay execution of his sentence.4 He

subsequently, in March 2021, filed a motion for alternative

relief, requesting a reduction to manslaughter under Mass. R.

Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). On May

4 A Superior Court judge denied the defendant's motion to

stay the execution of his sentence, in which the defendant

sought release due to the dangers of COVID-19. See Commonwealth

v. McDermott, 488 Mass. 169, 170 (2021). A single justice of

the Appeals Court affirmed the denial of that motion, based on

the defendant's serious flight risk, and we upheld that order.

Id. at 170, 172.

13

26, 2022, the motion judge denied the defendant's second motion

for a new trial and his motion to reduce the verdict. The

defendant filed a timely appeal from the decision, and we

allowed his petition for direct appellate review.

Discussion. 1. Standard of review. The defendant did not

object to the prosecutor's closing argument, the contested jury

instructions, or most of the disputed cross-examination at

trial. The defendant also did not raise any of these issues in

his direct appeal or in his first motion for a new trial. In

these circumstances, we review to determine whether any of the

alleged errors created a substantial risk of a miscarriage of

justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295

(2002); Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C.,

444 Mass. 72 (2005), citing Commonwealth v. LeFave, 430 Mass.

169, 174 (1999).

A substantial risk of a miscarriage of justice exists where

we have "a serious doubt whether the result of the trial might

have been different had the error not been made." Azar, 435

Mass. at 687, quoting LeFave, 430 Mass. at 174. This standard

of review considers "(1) the strength of the Commonwealth's

case, (2) the nature of the error, (3) the significance of the

error in the context of the trial, and (4) the possibility that

the absence of an objection was the result of a reasonable

tactical decision" (citation and alteration omitted).

14

Commonwealth v. Desiderio, 491 Mass. 809, 815-816 (2023). See

Randolph, 438 Mass. at 297 ("Errors of this magnitude are

extraordinary events and relief is seldom granted"); Azar, supra

(new trial based on unpreserved error is "extraordinary

situation").

The Commonwealth contends that the defendant's appeal is

"foreclosed" by this court's plenary review in 1984. That

argument only goes so far. "Section 33E, the mechanism by which

this court exercises plenary review of all convictions of murder

in the first degree, provides this court with extraordinary

powers to consider the whole case, both the law and the

evidence, to determine whether there has been any miscarriage of

justice" (quotations and citation omitted). Commonwealth v.

Watt, 493 Mass. 322, 326 (2024). Reversible error is unlikely

where "the defendant's conviction in a capital case has

undergone the exacting scrutiny of plenary review under § 33E."

Randolph, 438 Mass. at 297. See Commonwealth v. Watkins

(No. 1), 486 Mass. 801, 805, S.C., 486 Mass. 1021 (2021).

Notwithstanding the court's exacting level of review,

postconviction relief under the substantial risk of a

miscarriage of justice standard is not entirely foreclosed. Id.

"Although this court takes its § 33E review obligation seriously

and conducts a thorough review to the best of its ability, no

one is infallible. . . . [W]e must maintain a means of

15

addressing the possibility of error and of grave and lingering

injustice" (quotations and citations omitted). Id. See

Commonwealth v. Smith, 460 Mass. 318, 320 (2011).

2. Prosecutorial misconduct. We first consider whether

the prosecutor's cross-examination and closing argument crossed

the line that separates strong advocacy from prohibited

misconduct. Most pointedly, the defendant asserts that the

prosecutor convinced the jury to convict by "wield[ing]

homophobic invective." He claims also that the prosecutor

engaged in other prohibited tactics, including asking questions

designed to badger or harass the defendant and playing to the

jury's sympathy for the victim in the closing argument.

Although the Commonwealth concedes that some of the prosecutor's

tactics were improper, it contends that the defendant is unable

to demonstrate a substantial risk of a miscarriage of justice

because of the overwhelming evidence of his guilt.5

5 The Commonwealth introduced the defendant's statements

before the parole board to cast doubt on the truthfulness of his

defense. In these proceedings, the defendant disavowed his

trial testimony. He testified, in 2012 and 2019, that the self-

defense claim was a lie -- that is, that Kemp did not rape him,

and that the defendant's attorney procured Werner's testimony.

It would not be in the interest of justice, the Commonwealth

argues, to grant the defendant a new trial considering his

admission to fabricating a defense. The defendant objected to

the consideration of the parole board evidence, contending that

the statements are irrelevant or of dubious value considering

his incentive to mollify parole officials. See Commonwealth v.

Clark, 528 S.W.3d 342, 347-348 (Ky. 2017) (expressing doubt over

16

a. Cross-examination. A defendant who voluntarily takes

the witness stand to testify on his own behalf is subject to

"the ordinary rigors of proper cross-examination." Commonwealth

v. Rivera, 425 Mass. 633, 639 (1997). See Commonwealth v.

Santiago, 53 Mass. App. Ct. 567, 573 (2002). There are,

however, limits to cross-examination. See Commonwealth v.

Fahey, 99 Mass. App. Ct. 304, 309 (2021). Among those

limitations: (1) "a prosecutor may not ask the defendant a

question for which the prosecutor cannot reasonably expect the

witness to provide an affirmative answer in order to communicate

an impression . . . by innuendo"; (2) the defendant cannot be

asked to assess the credibility of another witness; and (3) a

prosecutor may not ask the defendant questions that only serve

"to harass, annoy or humiliate" (quotation and citations

omitted). Id. at 310.

reliability of admissions "induced solely by the yearning to be

free"). Here, the motion judge found that the defendant's

admissions "may be probative," and that such evidence "arguably

take[s] some of the sting" out of the prosecutor's misconduct.

We leave for another day the issue whether the Commonwealth may

introduce admissions before the parole board in a motion for a

new trial. Where, as here, the motion judge did not preside

over the trial or conduct an evidentiary hearing, we review his

decision de novo. Commonwealth v. Pope, 489 Mass. 790, 793-794

(2022). Thus, we rely on the trial transcripts and other

documentary evidence, absent the parole board admissions, to

determine whether the asserted error or errors created a

substantial risk of a miscarriage of justice.

17

We first address the prosecutor's questions concerning the

defendant's sexual orientation. To test the credibility of the

defendant's version of the facts, the prosecutor asked the

defendant, in essence, why he continued to work for Kemp if sex

was a condition of employment. The defendant answered that Kemp

continued to pay him thirty dollars for oral sex and "I guess I

told [Kemp] it was all right, because he did it." The

prosecutor then inquired into the defendant's sexual

orientation:

Q.: "Did you ever have homosexual sex with other

people -- "

A.: "No."

Q.: "-- before that?"

A.: "No."

Q.: "Any familiarity with homosexuals?"

A.: "No."

Q.: "Up to that point; are you sure?"

A.: "Yes."

Q.: "Did you ever hear of a place named 'Skippers'?"

A.: "No."

Q.: "Did you?"

A.: "No."

Following this exchange, defense counsel asked for a side

bar conference. He informed the judge that the Commonwealth had

18

not provided any pretrial discovery linking the defendant to

"Skippers." Counsel requested an offer of proof "to see if that

is fair cross-examination." The prosecutor explained that

Skippers is a "homosexual bar," and that he had "soft

information" that the defendant "may have been there." The

trial judge did not accept the Commonwealth's offer of proof.

He stated that "it certainly isn't appropriate to ask a question

of a witness if you know, or if you understand that in the event

that he answers in the negative, that you're not going to be

able to show some evidence of it." He promised, "[a]t some

point," to provide an appropriate jury instruction "with

reference to that." The judge did not do so.

The prosecutor, as the Commonwealth now concedes, made

inappropriate insinuations regarding the defendant's sexual

orientation without foundation. It is error, as we explained in

Commonwealth v. Fordham, 417 Mass. 10, 20-21 (1994), for a

prosecutor "to communicate impressions by innuendo through

questions which are answered in the negative . . . when the

questioner has no evidence to support the innuendo. A

prosecutor may not conduct cross-examination in bad faith or

without foundation" (quotations and citations omitted). See

Commonwealth v. Trotto, 487 Mass. 708, 734 (2021); Commonwealth

v. Christian, 430 Mass. 552, 559-561 (2000), overruled on other

grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002).

19

Moreover, this line of questioning was premised on

homophobic stereotyping. The Commonwealth suggested that

tolerance of workplace sexual harassment varied according to

sexual orientation. That is, according to the Commonwealth, a

heterosexual employee (as the defendant claimed to be through

his counsel) would have quit. See Commonwealth v. Cadet, 473

Mass. 173, 186 (2015), citing Mass. G. Evid. § 1113(b)(3)(C)

note (2015) (biased questions raising racial, ethnic, or gender

stereotypes inappropriate); Commonwealth v. Capone, 39 Mass.

App. Ct. 606, 611 (1996) ("error for a prosecutor to make

insinuations about a defendant's sexual orientation which are

likely to prejudice a defendant").

The prosecutor also badgered the defendant during cross-

examination by asking hostile and repetitive questions. See

Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). For

example, the defendant testified that he shot blindly at Kemp.

Expressing incredulity (given the number of well-placed gunshot

wounds), the prosecutor asked, "You didn't see him while you

were shooting him?" The defendant responded, "No, I wasn't

looking at him." The prosecutor countered, "You're a pretty

good shot." Later, the trial judge offered to "take the recess

now and cool the court room down a little."

While we therefore agree with the motion judge that the

prosecutor's insinuations and badgering were improper, not all

20

the motion judge's characterizations of the prosecutor's cross-

examination are accurate. Specifically, the motion judge found

that the prosecutor "tempt[ed]" the defendant into commenting on

the credibility of police officers. See Commonwealth v.

Triplett, 398 Mass. 561, 567 (1986) (prosecutor baited defendant

into calling his own mother, who offered different version of

facts, liar); Fahey, 99 Mass. App. Ct. at 310 (prosecutor asked

defendant, "So, you're telling the truth and no one else is?").

We disagree with this characterization of the testimony. The

prosecutor asked:

Q.: "Now, you heard Lieutenant McGuinness testify before

this jury, didn't you?"

A.: "Yes."

Q.: "And you heard Sergeant Rhodes of the Cohasset police

testify also, correct?"

A.: "Yes."

Q.: "Do you remember Sergeant Rhodes saying that there

were three empty casings in this weapon when he found it on

the wall?"

A.: "Yes."

Q.: "How did that happen?"

[objection overruled]

A.: "I don't know."

Q.: "Well, how many times did you shoot Robert Kemp?"

A.: "I don't know."

21

Q.: "You heard Sergeant McGuinness testify that there were

four casings in the vicinity of where the body was found.

Do you remember that testimony?"

A.: "Yes."

Q.: "And that those four casings were fired from that gun?

You heard that, didn't you?"

A.: "Yes."

Q.: "Didn't you shoot Robert Kemp when you had him in the

ditch?"

A.: "No."

The defendant testified that he did not know how many

rounds he fired. He also denied shooting Kemp in the wooded

area. The prosecutor confronted the defendant with undisputed

ballistics evidence, including the revolver's nine-shot capacity

and the number of gunshot wounds and expended shell casings.

The defendant was not asked whether the crime scene

investigators lied. Referencing the testimony of those police

officers, he was asked to explain how the nine-shot revolver was

emptied, and to square his version of the facts with the shell

casings recovered next to the body. "It is not improper for the

prosecutor to point out, through this line of questioning, that

there were inconsistencies between the defendant's testimony and

that of [other witnesses], so long as the defendant was not

asked to assess the credibility of the [witness's] testimony"

(quotation and citation omitted). Commonwealth v. Alphas, 430

Mass. 8, 18-19 (1999). See Commonwealth v. Wright, 411 Mass.

22

678, 687 (1992), S.C., 469 Mass. 447 (2014) (no error where

questions "do not involve any direct request of [the defendant]

to comment on the credibility of witnesses").

b. Closing argument. The prosecutor made two improper

remarks in his closing argument. First, he played to the jury's

potential bias against gay men by dismissing Werner as a "male

prostitute," and telling the jury that Werner was "very proud of

the fact he is gay. Fine. Great. That's not the issue here."

See Commonwealth v. Tate, 486 Mass. 663, 674 (2021) (arguments

that invoked racial biases "grossly improper"); Commonwealth v.

Rivera, 52 Mass. App. Ct. 321, 328 (2001) (argument "went too

far" by prejudicial name-calling). Second, the prosecutor

inappropriately appealed to the jury's sympathy for the victim.

He argued, "[The defendant] had to come up with something; he

had to. It's an overwhelming case. He murdered him, and he

robbed him. Unfortunately for the memory of Robert Kemp, think

of what this man has come up with." See Commonwealth v. Bois,

476 Mass. 15, 34 (2016) ("Prosecutorial appeals to sympathy

. . . obscure the clarity with which the jury would look at the

evidence and encourage the jury to find guilt even if the

evidence does not reach the level of proof beyond a reasonable

doubt" [quotation omitted]).

c. Substantial risk of miscarriage of justice. The

Commonwealth concedes prosecutorial misconduct. The motion

23

judge aptly observed, "If [the d]efendant's entitlement to a new

trial turned solely on whether the prosecutor engaged in

misconduct at his original trial, the [c]ourt would allow [the

d]efendant's [s]econd [m]otion. That, however, is not the

standard." Applying the standard of review for unpreserved

claims, we conclude that the defendant has not demonstrated a

substantial risk of a miscarriage of justice. On these facts,

notwithstanding improprieties in the prosecutor's cross-

examination and closing argument, this case does not warrant a

new trial. See Randolph, 438 Mass. at 297.

We first examine the strength of the Commonwealth's case.

See Desiderio, 491 Mass. at 815-816; Azar, 435 Mass. at 687.

The record supports the conclusion that there was overwhelming

evidence of guilt. The motion judge found, and we agree, that

"[n]otwithstanding anything that the prosecutor did or said

at [the d]efendant's trial, it remains undisputed that [the

d]efendant shot Kemp ten to eleven times -- including five

times to the face and head -- with a nine-shot [r]evolver.

Because [the d]efendant fired ten or eleven shots into

Kemp's body with a nine-shot weapon, it also is true that

[the d]efendant undeniably had the opportunity and the

presence of mind, in the midst of killing Kemp, to stop and

reload the [r]evolver at least once."

There was also strong evidence rebutting the defendant's

narrative of events. For example, he testified that he shot

Kemp while falling, and did not aim the revolver or even see

Kemp before pulling the trigger. Yet he fired multiple fatal

shots, striking Kemp in vital areas of his body. He also

24

testified that he did not rifle through Kemp's pockets, leading

to an unbelievable "grave robber" argument that teenagers

partying in the woods spotted Kemp's body in the ditch overnight

and stole his wallet and jewelry.6 Further, the defendant's

testimony that he did not shoot Kemp in the ditch was

contradicted by the presence of shell casings near the body.

We next examine the second and third Desiderio and Azar

factors. It goes without saying that cross-examination or a

closing argument that plays on a juror's potential homophobic

bias has no place in a criminal trial. Whether misconduct leads

to a new trial on collateral review, however, depends on the

nature of the errors and the significance of the errors in the

6 The jury acquitted the defendant of armed robbery and

felony-murder. See McDermott, 393 Mass. at 457 (jury "clearly"

rejected felony-murder). These verdicts, however, do not

foreclose a finding that the defendant rummaged through Kemp's

pockets and stole the petty cash box. It is a question of when

the defendant formed the intent to steal, not whether he stole

from Kemp. The judge instructed the jury that the Commonwealth

was required to prove the defendant formed an intent to steal

prior to the shooting, not afterward. He instructed:

"[S]peaking just hypothetically, depending upon how you might

view the evidence, certainly if he took property from Robert

Kemp or from his body after the fact of a killing and did not

have the specific intent at the time of the killing to rob from

him, then that crime would not be armed robbery." See

Commonwealth v. Roderick, 429 Mass. 271, 277 (1999) (felony-

murder applies where killing occurred during commission or

attempted commission of predicate felony).

25

context of the trial. See Desiderio, 491 Mass. at 816; Azar,

435 Mass. at 687.7

The defense alleged that Kemp hid his sexual orientation

and used his position as golf course manager to take advantage

of younger men. In so doing, the defense appealed to homophobic

tropes. What began as "homosexual seduction," as defense

counsel stated, "resulted in a degrading[] defilement, and on

November 20[], the homosexual rape of Billy McDermott." Defense

counsel emphasized that the defendant was a "real [heterosexual]

boy" attacked by a larger, older gay man. As evidence of the

defendant's heterosexuality, his girlfriend testified that he

"became aroused" in response to "heavy petting." Defense

counsel argued, "I'm glad I called [the defendant's girlfriend],

because I think it really rounds out what we are dealing with

here, a boy." Defense counsel further stated that Werner's

testimony, where Werner described consensual sex for a fee with

Kemp, "contextualizes the horror of Billy McDermott."

The prosecutor was entitled to challenge the defendant's

version of the facts and Werner's testimony concerning Kemp's

alleged undisclosed sexual orientation. This was a delicate

task given the danger of importing bias into the trial. He

7 This case does not raise the fourth factor, i.e., "the

possibility that the absence of an objection was the result of a

reasonable tactical decision." Desiderio, 491 Mass. at 816.

26

failed. We conclude, however, that the prosecutor's "Skippers"

question and reference to Werner's sexual orientation did not

create a substantial risk of a miscarriage of justice. The

"Skippers" question was part of the prosecutor's ham-handed

attempt to counter the defendant's narrative that an innocent

"real" heterosexual boy, cornered in the bathroom, justifiably

resorted to deadly force to repel an attack by an older, gay

man. In response to the prosecutor's question whether he was

familiar with "Skippers," the defendant answered "no," the

prosecutor moved on to another topic, and the judge effectively

curtailed further inquiry. See Christian, 430 Mass. at 560-562

(prosecutor questioned defendant "at some length" about

incriminating statements made to nontestifying jailhouse

informant drawing "consistent denials"). Similarly, in a

lengthy closing argument, the derisive comments about Werner's

sexual orientation were made in passing amid appropriate

argument challenging Werner's testimony.

We next consider the prosecutor's inappropriate appeal to

sympathy. A prosecutor is afforded leeway to humanize the

proceedings but not in a way that plays on the jury's sympathy

and emotions. Commonwealth v. Kolenovic, 478 Mass. 189, 201

(2017). The absence of an objection, although not dispositive,

is "some indication that the tone, manner, and substance of the

now challenged aspects of the prosecutor's argument were not

27

unfairly prejudicial" (citation omitted). Commonwealth v.

Duguay, 430 Mass. 397, 404 (1999). Here, the judge instructed

the jury that closing arguments are not evidence and that the

jurors were required to decide the case "without reference to

any ignoble motive" such as "fear, prejudice, pity, [or]

sympathy." See Commonwealth v. Kee, 449 Mass. 550, 560-561

(2007) (general jury instructions may mitigate prejudice). The

potential damage to Kemp's reputation as a "family man" was

front and center in the trial. He was either a rapist targeting

young male employees, who hid his sexual orientation from his

friends and family, or a murder victim unfairly sullied by the

defense. "[I]t is unlikely that the prosecutor's argument had

an inflammatory effect on the jury beyond that which naturally

would result from the evidence presented" (quotation and

citation omitted). Commonwealth v. Moore, 489 Mass. 735, 754

(2022). Finally, the prosecutor's aggressive questioning, in

context, did not create a substantial risk of a miscarriage of

justice. Having carefully reviewed the transcripts, we agree

with the Commonwealth's contention that the length of the cross-

examination was in many ways attributable to the prosecutor's

legitimate goal of rebutting the defendant's statements during

direct examination point by point. Further, the harsh tone of

the prosecutor's questioning is not the type of error leading to

a new trial in this procedural posture.

28

3. Jury instructions. The defendant next contends that

the trial judge provided erroneous self-defense, sudden

provocation, and sudden combat jury instructions. In brief, he

claims that the self-defense instructions "failed to place the

burden squarely and continuously upon the Commonwealth," and

that the sudden provocation and sudden combat instructions were

incomplete. The motion judge rejected these claims. He

concluded that these issues were "fully litigated and addressed

by both [this court] and the Appeals Court in the course of [the

d]efendant's prior appeals. In other words, all of the

requirements for the application of direct estoppel have been

met."8

As a threshold issue, we consider whether the defendant

should be estopped directly from challenging the jury

instructions where the issues were decided in his first motion

for a new trial and subsequent appeal. "Under the principle of

direct estoppel, a judge is precluded from reviewing an issue

that previously was litigated and determined, if such

determination was essential to the conviction, and the defendant

8 We are not convinced that the burden of proving self-

defense was litigated and determined in the direct appeal. The

McDermott court addressed the narrow self-defense issue whether

the judge was required to instruct the jury that an individual

may use deadly force to resist rape (as distinct from force used

to resist death or serious injury). See McDermott, 393 Mass. at

459-460.

29

had an opportunity to obtain review of the determination"

(quotations and alterations omitted). Commonwealth v. Pfeiffer,

492 Mass. 440, 447 (2023), quoting Commonwealth v. Arias, 488

Mass. 1004, 1006 (2021).

The defendant's first motion for a new trial challenged

impermissible burden-shifting language within the voluntary

manslaughter instruction. The Commonwealth conceded that the

judge failed to instruct the jury that the Commonwealth had to

prove the absence of provocation beyond a reasonable doubt. In

denying the motion for a new trial, the first motion judge found

that the unobjected-to erroneous jury instruction did not create

a substantial risk of a miscarriage of justice. "[I]t would

have been better practice," she stated, "for the judge to

instruct that the Commonwealth had to prove the absence of

provocation beyond a reasonable doubt." She reasoned that the

defendant was not prejudiced by the error because reading "the

charge as a whole" (including the self-defense instruction) the

judge repeatedly emphasized "that the Commonwealth bore the

burden of proof, that it had to prove all elements beyond a

reasonable doubt, and that the defendant bore no burden."

On the defendant's appeal from the denial of his first

motion for a new trial, the Appeals Court considered the

defendant's argument that "the judge incorrectly instructed the

jury on the Commonwealth's burden of proof on provocation, which

30

created a substantial risk of a miscarriage of justice."

McDermott, 65 Mass. App. Ct. 1112. The judge gave the jury the

same burden-shifting instruction found to be prejudicial error

in Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998). "The

correct rule is that, where the evidence raises the possibility

that the defendant may have acted on reasonable provocation, the

Commonwealth must prove, and the jury must find, beyond a

reasonable doubt that the defendant did not act on reasonable

provocation." McDermott, supra, quoting Acevedo, supra. The

Appeals Court went on to decide whether the Acevedo error

created a substantial risk of a miscarriage of justice requiring

a new trial. Affirming the denial of the defendant's first

motion for a new trial, the Appeals Court stated, "The error,

which the Commonwealth concedes, did not create a substantial

risk of a miscarriage of justice because the trial judge gave a

lengthy and correct instruction on self-defense, in which he

properly allocated to the Commonwealth the burden to prove the

absence of self-defense." McDermott, supra. The Appeals Court

further noted, "The judge gave a lengthy instruction on self-

defense, in which he properly, forcefully, and repeatedly

allocated to the Commonwealth the burden to prove the absence of

self-defense." Id.

In this appeal, the defendant is estopped from relitigating

the issue whether the judge properly allocated the burden of

31

proof in the self-defense instruction. The claim was "actually

litigated and determined" by the Appeals Court, and "such

determination was essential to the [defendant's] conviction"

(citations omitted). Pfeiffer, 492 Mass. at 447. The

defendant's argument that the Appeals Court's statements

concerning the correctness of the self-defense instruction "is

nonbinding dicta" is unavailing. Jury instructions are

considered as a whole "to determine the probable impact,

appraised realistically . . . upon the jury's factfinding

function" (quotation and citation omitted). Commonwealth v.

Teixeira, 490 Mass. 733, 742 (2022). Where the Appeals Court

determined that the jury instructions, in their entirety, did

not shift the burden of proof, the defendant is estopped from

relitigating this claim.

Direct estoppel, however, does not bar the defendant from

challenging jury instructions unrelated to the allocation of the

burden of proof. As such, we next consider the defendant's

arguments that the trial judge failed to explain or define

adequately the terms "sudden provocation" and "sudden combat."

Because the issue is raised for the first time in this appeal,

32

we examine any alleged errors for a substantial risk of a

miscarriage of justice.9

The judge instructed:

"[M]anslaughter takes into account the human frailties of

human beings. . . . It allows the jury to consider on the

totality of the evidence whether or not the perpetrator of

the crime was overcome by provocation at the time that he

committed the crime. If so, was he so overcome? Was he so

overcome with human emotion and human frailty and human

weakness based upon a provocation that he, indeed, acted

not out of response to deliberation, not out of response to

malice but out of response to human weakness, but,

nevertheless, committed an unlawful killing?"

In response to the jury's request to redefine manslaughter,

the judge provided a supplemental instruction:

"[The law] recognizes the weaknesses of human beings and

their frailties and their responses to sudden provocation

or sudden assaults in the heat of passion of mankind. If

the jury find[] that there is, indeed, an unlawful killing

of another . . . but that that killing was after an assault

9 The defendant, citing Commonwealth v. Harrington, 379

Mass. 446, 450 (1980), and Commonwealth v. Barros, 425 Mass.

572, 576 (1997), contends also that the judge erred by failing

to instruct the jury that intoxication mitigates the subjective

prong of self-defense. The argument is not supported by either

case. Harrington, supra, established that self-defense requires

evidence that a defendant reasonably and actually believed he

was in imminent danger of death or serious bodily harm. In

Barros, supra, the court did not reach the issue whether a judge

is required to instruct the jury that they may consider

intoxication as it relates to the defendant's actual belief that

it was necessary to resort to deadly force. It was not

necessary to resolve the issue, the Barros court concluded,

because the evidence did not warrant a self-defense instruction.

Id. In any event, the absence of such an instruction would not

have created a substantial risk of a miscarriage of justice. If

the jury had credited the defendant's version of events, he

would have had a reasonable and actual belief that deadly force

was necessary to protect himself from Kemp's sexual assault

regardless of his sobriety.

33

or a provocation upon the [d]efendant which resulted in the

[d]efendant reacting in a heat of passion where judgment

is, in effect, clouded by the heat of passion, then in fact

in that situation the notion of malice that can be inferred

from the intentional use of deadly force is negated, and

the malice does not exist. In that situation the killing,

rather than being murder, is manslaughter."

The defendant maintains that the court "should have, but

did not convey, the precise and complete definitions of

provocation and sudden combat that this [c]ourt had established

before this trial." A more thorough definition, he argues,

would have informed the jury that "sudden provocation included

anger, fright and excitement as valid states of mind in this

context to warrant a manslaughter verdict." See Commonwealth v.

Walden, 380 Mass. 724, 728 (1980). See also Commonwealth v.

Hodge (No. 2), 380 Mass. 858, 865 (1980) (manslaughter is

homicide committed "in heat of blood, a perturbation of mind

palliating the intent to inflict injury. The fatal blow not

purposeful but is the result of chance and frailty of

humanity"). This was a critical mistake, he argues, because

Kemp initiated sudden combat by kicking the defendant and there

was insufficient time between the defendant's justifiable anger

and the shooting for "cool reflection."

Here, the instruction required the jury to consider whether

the defendant's "judgment was clouded" so that he was "overcome

with human emotion and human frailty and human weakness based on

provocation." We conclude that any error in the provocation

34

instruction could not have created a substantial risk of a

miscarriage of justice. The theory of the defense was that the

defendant shot Kemp to fend off a brutal forcible rape. Defense

counsel argued that the defendant, on cross-examination, was

forced to relive the "torture" of November 20, 1981. The

defendant, he argued, was alone, drunk, and afraid. "He was in

pain, both from his knees and from his rectum. He was confused,

degraded, demeaned, raped, and cornered." The jury would

commonly understand that Kemp's alleged sexual assault

constituted an act of provocation in the manner described by the

judge.

4. Life with possibility of parole sentence. The

defendant contends that a sentence of life with the possibility

of parole, imposed on a teenager, violates the prohibition

against cruel or unusual punishment secured by the Eighth

Amendment and art. 26. Relying on Miller v. Alabama, 567 U.S.

460, 472 (2012), and Graham v. Florida, 560 U.S. 48, 73 (2010),

he reasons that all former juvenile offenders, convicted of

homicide or other serious offenses, are entitled to

individualized sentencing hearings. In the defendant's view, a

mandatory life sentence for murder in the second degree, even

with the possibility of parole, "is constitutionally infirm due

to the automatic process behind its imposition."

35

The defendant's Federal constitutional challenge fails

because there is no Eighth Amendment prohibition against

sentencing a juvenile offender to life with the possibility of

parole. The United States Supreme Court, in a series of

decisions spanning roughly twenty years, has recognized that

children constitutionally are different from adults for purposes

of sentencing. In Roper v. Simmons, 543 U.S. 551, 578 (2005),

the Court held that capital punishment of offenders who were

under the age of eighteen when their crimes were committed

violates the "cruel and unusual punishment" clause of the Eighth

Amendment. Following Roper, the Court examined the

constitutionality of sentencing juveniles to "the second most

severe penalty permitted by law" (citation omitted), Graham, 560

U.S. at 69 -- life imprisonment without parole. The Graham

Court held that for "a juvenile offender who did not commit

homicide[,] the Eighth Amendment forbids the sentence of life

without parole." Id. at 74. Two years later, in Miller, 567

U.S. at 479, the Court held that the Eighth Amendment's

probation against cruel and unusual punishment proscribes the

imposition of a mandatory sentence of life without the

possibility of parole for individuals under the age of eighteen

at the time they committed murder. "[B]y making youth (and all

that accompanies it) irrelevant to imposition of that harshest

prison sentence, such a scheme poses too great a risk of

36

disproportionate punishment." Id. Then, in Montgomery v.

Louisiana, 577 U.S. 190, 212 (2016), the Court determined that

Miller's substantive holding barring life without parole for all

but the rarest of juvenile offenders was retroactive to cases on

collateral review. Most recently, in Jones v. Mississippi, 141

S. Ct. 1307, 1320-1321 (2021), the Court decided that the Eighth

Amendment did not require a judge to make separate factual

finding of permanent incorrigibility before imposing a

discretionary sentence of life without parole on a juvenile

homicide offender.

Because the defendant was sentenced to life with the

possibility of parole after fifteen years, see G. L. c. 279,

§ 24, his sentence does not violate juvenile-specific Eighth

Amendment protections. It is well settled that a mandatory

sentence to anything less than life without the possibility of

parole is not prohibited by Miller. See Montgomery, 577 U.S. at

212 (State may remedy Miller violation by permitting juvenile

homicide offenders to be considered for parole, rather than

resentencing them); Miller, 567 U.S. at 489 (mandatory lifetime

incarceration without possibility of parole "regardless of . . .

age and age-related characteristics" violates ban on cruel and

unusual punishment); Graham, 560 U.S. at 75 ("State is not

required to guarantee eventual freedom to a juvenile offender"

but must provide "some meaningful opportunity to obtain release

37

based on demonstrated maturity and rehabilitation"). See also

Brown v. Precythe, 46 F.4th 879, 886 (8th Cir. 2022) ("Miller

factors . . . apply as a constitutional matter only to a judge's

decision at sentencing whether to impose a term of life

imprisonment without parole for a juvenile homicide offender");

Atkins v. Crowell, 945 F.3d 476, 478 (6th Cir. 2019), cert.

denied, 140 S. Ct. 2786 (2020) ("Miller's holding simply does

not cover a lengthy term of imprisonment that falls short of

life without parole"); United States v. Sparks, 941 F.3d 748,

754 (5th Cir. 2019), cert. denied, 140 S. Ct. 1281 (2020)

("Miller has no relevance to sentences less than [life without

parole]").

The defendant's art. 26 argument fares no better. In

Commonwealth v. Concepcion, 487 Mass. 77, 86, cert. denied, 142

S. Ct. 408 (2021), we considered whether art. 26 prohibits a

juvenile, convicted of murder in the first degree, from serving

a sentence of life with the possibility of parole after twenty

years. There, the defendant maintained that the combination of

his youth and intellectual disabilities rendered his mandatory

sentence disproportionate to his conviction. Id. at 86. The

court concluded that the sentencing scheme, "a product of post-

Diatchenko I developments in our case law," did not violate art.

26. Id. at 87-88. See Diatchenko v. District Attorney for the

Suffolk Dist., 466 Mass. 655, 671 (2013) (Diatchenko I), S.C.,

38

471 Mass. 12 (2015). In so holding, we considered the gravity

of the defendant's conviction of murder in the first degree and

that art. 26, in extraordinary cases, allows a judge to sentence

a juvenile to terms with parole eligibility exceeding fifteen

years. Concepcion, supra at 88. See Commonwealth v. LaPlante,

482 Mass. 399, 405 (2019); Commonwealth v. Perez, 477 Mass. 677,

685-686 (2017), S.C., 480 Mass. 562 (2018). A sentence of life

with the possibility of parole "would not in itself prevent [the

defendant] from having 'a meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.'"

Concepcion, supra at 88-89, quoting Diatchenko I, supra at 674.

A twenty-year period before a juvenile becomes eligible for

parole is not so lengthy as to be the functional equivalent of

life without parole. Concepcion, supra at 88.

We reach the same result in this case. The defendant's

sentence to life with the possibility of parole after fifteen

years does not violate rights secured by art. 26. Contrary to

the defendant's argument, art. 26 does not prohibit the

imposition of a mandatory sentence. Concepcion, 487 Mass. at

87. See Commonwealth v. Brown, 466 Mass. 676, 686 (2013)

("[N]either Miller nor [Diatchenko I] precludes mandatory

sentencing for all juveniles in all circumstances. The holding

of Miller was cabined specifically to the need for discretion in

imposing the 'particular penalty' of life without parole").

39

The defendant's sentence provides a "meaningful opportunity

to obtain release based on demonstrated maturity and

rehabilitation." Graham, 560 U.S. at 75. The effective date of

his sentence was November 25, 1981, and after the reduction of

his sentence to murder in the second degree, he became eligible

for parole fifteen years later on November 24, 1996. He has

been denied parole at least five times. See McDermott vs.

Massachusetts Parole Bd., Mass. Super. Ct., No. 1985CV00788

(Worcester County Jan. 6, 2020). The defendant appealed from

the April 2019 denial of his parole application, contending that

the parole board failed to consider "the distinctive attributes

of youth" in determining whether he was likely to reoffend. See

Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass.

12, 23 (2015) (Diatchenko II). The Appeals Court affirmed a

Superior Court judge's allowance of the parole board's cross

motion for judgment on the pleadings. See McDermott v.

Massachusetts Parole Bd., 101 Mass. App. Ct. 1117 (2022). The

court determined that "the full administrative record, including

the transcript of the hearing before the board and the questions

asked by board members, reflected a thoughtful and sufficient

consideration of the [Miller and Diatchenko II] factors." Id.

Accordingly, there was no violation of either the

defendant's Federal or State constitutional rights.

40

Conclusion. The order dated May 26, 2022, denying the

defendant's second motion for a new trial, is affirmed.

So ordered.