NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
20-P-1195
COMMONWEALTH
vs.
PEDRO VASQUEZ. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of murder in
the second degree as a lesser included offense of murder in the
first degree, illegal possession of a firearm, and illegal
possession of a loaded firearm. On appeal the defendant argues
that the trial judge erred by failing to adequately investigate
preverdict reports that raised the possibility of racial bias on
the part of a juror and by denying the defendant's request for
an instruction on involuntary manslaughter. As we are
unpersuaded by these arguments, we affirm the murder conviction.
Pursuant to Commonwealth v. Guardado, 491 Mass. 666 (Guardado
I), S.C., 493 Mass. 1 (2023) (Guardado II), we vacate the
1 As is our usual practice, we take the spelling of the defendant's name as it appears on the indictments. convictions of illegal possession of a firearm and illegal
possession of a loaded firearm.
Background. 1. The evidence. The defendant and victim
dated for several years and at some point were married. Their
relationship was volatile. In the summer of 2014, they split
up, and the victim moved in with her brother. The defendant,
armed with a gun, came to the brother's house and threatened to
kill the victim. The couple nonetheless resumed their
relationship in the months that followed, but split up again
about two weeks before the murder. After this last breakup, the
defendant called the victim repeatedly. The victim's son
overheard the defendant tell her on one call that, if she did
not get back together with him, "You'll see what's going to
happen." The victim replied that the defendant needed to move
on with his life.
At approximately 5:40 A.M. on January 5, 2015, Springfield
police officers responded to a report of shots fired. They
discovered the victim slumped over in the driver's seat of a
Jeep with her foot on the accelerator. She had died from a
single gunshot wound to the head. The bullet had entered the
back of her head and exited through the right side of her
forehead.
The police located a home security camera nearby and
recovered the recording from the homeowner. Shortly into the
2 recording, the Jeep can be seen coming to an abrupt stop across
the street. About four minutes later, the rear driver's side
door opens, and a man and woman can be heard arguing loudly in
Spanish. The Commonwealth offered two witnesses for purposes of
translating the audio from Spanish to English, both of whom
testified that the woman can be heard saying, "Give me the keys,
Pedro." At about five and one-half minutes into the recording,
the man is seen getting out of the rear seat of the Jeep.
Simultaneously, a gunshot rings out. The man then runs down the
street.
Four witnesses who were familiar with both the defendant
and the victim identified them as the people speaking on the
recording. Three of the witnesses also identified the defendant
from the video footage, based on his clothes, height and build,
and manner of walking.
2. Dispute between jurors. After thirteen days of trial,
the jury began deliberating at about 12:45 P.M. on a Friday; the
judge dismissed them just before 4 P.M. Soon thereafter, a
court officer informed the judge that he witnessed an argument
between juror no. 2 and juror no. 4 outside the jury room. The
argument did not concern the case but was more in the nature of,
"If you got something to say to me, say it," and then "jarring
back and forth." The court officer separated the jurors and
sent them on their way.
3 The argument did not end there, however. With both the
court officer and the prosecutor watching from a window, the
jurors confronted each other on the sidewalk outside the
courthouse, "kind of face-to-face, going back and forth." This
"went on for a little bit," attracting onlookers. Eventually,
the jurors separated, although juror no. 2 "turned around a few
times and said something else." While the prosecutor could not
hear what the jurors were saying, it was clear to him that "they
were yelling at each other."
When court resumed the following Tuesday, the judge
informed the attorneys that he had received two notes from the
jury. The first note, from juror no. 4, stated: 2
"On Friday, February 14th, at 4:15, as I was outside heading through the crosswalk outside of the Court building, Juror number 2 . . . yelled for me as he was coming down the last three steps. He eventually caught up to me on the sidewalk across the street and continued a confrontation that started during deliberation.
"On the sidewalk, it turned into . . . more than words and moved to threats. He continued to provoke me and was trying to start a physical altercation, which I began to walk away from. He got back in front of me when I was near some other gentlemen, who were on the corner. He called me a racist in front of them and continued to provoke me. . . . It was now a four-on-one situation of continued threats. I quickly walked away and was not pursued."
The second note, from the foreperson, stated:
"During Friday's deliberations . . ., there were multiple times I had to remind a person that needed [sic] to leave
2 We quote from the transcript of the judge's reading of the notes, as the notes themselves are not in the record appendix.
4 his personal feelings out of it. However, this one had multiple interactions with others, and it became personal between them. This actually continued outside, after we left. There seems to be preconceived biases with this juror, which he has voiced to the group. I will start today . . . with reminding them again about leaving their emotions and personal experiences out of the conversation, but I'm not sure if there is [sic] other steps I need to take, other than your instructions."
After consulting with the attorneys, the judge decided to
conduct a voir dire of juror no. 2, juror no. 4, and the
foreperson. Speaking first with juror no. 2, the judge asked
him to describe the nature of his dispute with juror no. 4,
while cautioning him not to reveal anything about the jury's
deliberations. Juror no. 2 explained that the argument started
in the jury room and continued outside the courthouse when he
asked juror no. 4 to repeat what he had said inside. Juror
no. 4 reportedly responded, "I read you from day one. I knew
what you were, and you're a piece of shit." This prompted juror
no. 2 to say, "Spoken like a true racist." When juror no. 4
again called juror no. 2 a "piece of shit," juror no. 2 replied,
"Yeah, you're still a racist."
After consulting again with the attorneys, 3 the judge asked
juror no. 2 if his dispute with juror no. 4 would interfere with
3 During this second discussion, the prosecutor reported that he had recently learned that juror no. 2 had prior interactions with the Hampden County District Attorney's Office "that ended negatively." The prosecutor requested further inquiry into these interactions, which defense counsel opposed. The judge
5 his ability to be fair and impartial. Juror no. 2 replied,
"Absolutely not," and then, unprompted, provided further details
about the dispute, stating among other things: "I did not
assume this gentleman was a racist based on one statement. . . .
I mean, there were other statements and incidences within the
deliberations. . . . I came to that conclusion based on a label
he gave me during deliberations, in front of everybody." The
judge interrupted at this point and warned again not to reveal
anything about the deliberations. Juror no. 2 apologized and
confirmed several times that he could be fair and impartial.
The judge next spoke to juror no. 4. After cautioning him
not to reveal anything about the deliberations, the judge asked
him to explain what happened. Juror no. 4 replied that juror
no. 2, whom he described as "kind of volatile," confronted him
about something he had said in the jury room, called him a
"racist," and tried to provoke a fight. Juror no. 4 stated that
he "wanted no confrontation" and walked away. When the judge
asked whether he had spoken to any of the other jurors about the
incident, juror no. 4 said he had not.
At the prosecutor's request, the judge then asked whether
the argument had "anything to do with the substance of the
case," to which juror no. 4 replied, "Yeah, I would say yes."
stated that he would address the issue by asking juror no. 2 if he could be fair and impartial to both parties.
6 The judge did not probe further. Instead, the judge asked juror
no. 4 if he could be fair and impartial despite the argument,
and juror no. 4 confirmed that he could.
Last, the judge spoke to the foreperson. After providing
the same warning about not revealing anything about the
deliberations, the judge asked the foreperson whether she had
witnessed an altercation outside the courthouse. The foreperson
replied that she heard one juror yelling at another juror, "Hey,
big man! We need to have some words," but she witnessed nothing
further because she left. She also stated that there was
"tension" in the jury room and described the atmosphere as
"uncomfortable." When the judge asked whether she had spoken to
the other jurors about what she observed, the foreperson said
she had not and confirmed that she could be fair and impartial.
Once the foreperson stepped back from sidebar, the
prosecutor requested that the judge inquire about what she meant
in her note by "preconceived biases." In response defense
counsel observed that "one person's personal experience is
another's preconceived bias." The judge then reread the portion
of the note about "preconceived biases" and stated, "I think
that's her perception. It might not be accurate." When the
judge indicated that he was "not inclined to intervene as to the
internal workings of this group," defense counsel affirmed that
he did not want the judge to inquire further of the foreperson.
7 The prosecutor then requested that both juror no. 2 and
juror no. 4 be discharged, stating that there were "accusations
of racism and threats of violence occurring in this jury."
Defense counsel objected and suggested it would instead be
appropriate for the judge to repeat his instructions about the
conduct of deliberations. Agreeing with defense counsel's
suggestion, the judge brought the jury back to the courtroom and
reminded them to approach their deliberations with respect for
their fellow jurors, to decide the case based on the evidence,
and not to be swayed by prejudice, sympathy, or personal likes
or dislikes toward either party. Defense counsel indicated he
was satisfied.
The jury resumed their deliberations at 10:20 A.M. and
returned their verdicts at 3:22 P.M. the same day.
Discussion. 1. Potential juror bias. When a judge
receives a credible preverdict report "that reasonably suggests
that a statement reflecting racial, ethnic, or other improper
bias was made during jury deliberations," the judge must conduct
an inquiry to determine whether the jury remains impartial.
Commonwealth v. Ralph R., 490 Mass. 770, 784 (2022). The
defendant argues that the inquiry here was inadequate because
the judge did not probe into whether racially biased statements
were made in the jury room and, if so, whether they infected the
8 jury's deliberations. The Commonwealth concedes that there was
error.
At the time of his inquiry, the judge did not have the
benefit of Ralph R., 490 Mass. at 784, which clarifies that,
when there is any possibility that statements reflecting
improper bias infected jury deliberations, the judge has the
duty to ferret out what statements were made and determine
whether they affected the jury's impartiality. The court in
Ralph R., supra at 785, concluded that the judge erred by not
investigating what a juror meant when she reported
"discriminating comments" in the jury room. The defendant
argues that the judge similarly erred here by not exploring the
foreperson's report of "preconceived biases"; juror no. 2's
report that he believed juror no. 4 was racist based on
"statements and incidences within deliberations" and a "label"
that juror no. 4 gave him "in front of everybody"; and juror
no. 4's report that his dispute with juror no. 2 had to do with
the substance of the case. We agree that under Ralph R. the
judge should have delved further into these reports to determine
whether racially biased statements were made during
deliberations.
We do not agree, however, with the defendant's suggestion
that the error automatically entitles him to a new trial. In
Ralph R., 490 Mass. at 786, the court rejected the contention
9 that a judge's failure to investigate a claim of juror bias is a
structural error not subject to waiver. As the court explained,
"[t]o presume prejudice in this context would ignore the
distinction, one long recognized by [the] court, between
properly preserved and waived claims." Id., quoting
Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), cert.
denied, 577 U.S. 922 (2015). Thus, where a defendant fails to
object to a judge's failure to investigate, the standard on
appeal is whether the error gave rise to a substantial risk of a
miscarriage of justice. See Ralph R., supra.
The claim was plainly waived in this case. The defendant
did not request that the judge inquire further of juror no. 2 or
juror no. 4 and arguably invited the judge not to ask the
foreperson what she meant by "preconceived biases." Nor did the
defendant request that the judge conduct a voir dire of the
other jurors. Instead, the defendant stated he was satisfied
with the judge's proposal to repeat some of the instructions and
then return the jury to deliberating.
Our review is therefore limited to determining whether
there was a substantial risk of a miscarriage of justice. This
requires us to consider "the strength of the Commonwealth's
case, the nature of the error, the significance of the error in
the context of the trial, and the possibility that the absence
of an objection was the result of a reasonable tactical
10 decision." Commonwealth v. Azar, 435 Mass. 675, 687 (2002). We
will not reverse a conviction under this standard unless "we
have a serious doubt whether the result of the trial might have
been different had the error not been made." Commonwealth v.
LeFave, 430 Mass. 169, 174 (1999).
We see no substantial risk that the error here affected the
result of the trial. The Commonwealth's case was strong. The
victim was heard on the security recording arguing with a man
she called "Pedro," the defendant's first name, moments before
he shot her. Numerous witnesses who were familiar with the
defendant identified him as the man in the recording. Several
of these witnesses testified that they recognized the
defendant's voice "right away" and were "sure" and had no doubt
that it was him. The defendant also had a motive to commit the
murder and had threatened to kill the victim in the past. And
importantly, there is no indication that race played any role in
this case, whereas Ralph R. revolved around a Black youth's
interaction with the Boston police.
Moreover, unlike in Ralph R., where the judge took no steps
to determine whether the jury remained impartial, the judge in
this case conducted individual inquiries of the jurors involved
in the altercation and the foreperson, who witnessed it. All
confirmed that they could be fair and impartial. So while we
conclude that the judge should have inquired further, the nature
11 of the error was not such that we have serious doubt that the
impartiality of the jury was affected. In addition, and again
unlike in Ralph R., it appears that defense counsel made a
tactical decision not to object, perhaps wishing to protect a
juror who had a personal dispute with the prosecutor's office or
sensing that a dispute between jurors could advantage the
defendant.
For these reasons we conclude that the defendant has not
established a substantial risk of a miscarriage of justice on
this record. Our ruling does not preclude the defendant from
filing a motion to question the jurors under Commonwealth v.
Fidler, 377 Mass. 192 (1979), or from raising his claim of juror
bias in a motion for a new trial. The Commonwealth acknowledged
at oral argument that these remedies remain available to the
2. Failure to instruct on involuntary manslaughter. "An
instruction on involuntary manslaughter is required where any
view of the evidence would permit a finding of manslaughter and
not murder." Commonwealth v. Pierce, 419 Mass. 28, 33 (1994).
"Malice is what distinguishes murder from manslaughter," so "a
verdict of manslaughter is possible only in the absence of
malice." Commonwealth v. Pagan, 471 Mass. 537, 546, cert.
denied, 577 U.S. 1013 (2015), quoting Commonwealth v.
Vizcarrondo, 427 Mass. 392, 396 (1998), S.C., 431 Mass. 360
12 (2000). Thus, "[w]hen it is obvious . . . that the risk of
physical harm to the victim created a plain and strong
likelihood that death will follow, an instruction on involuntary
manslaughter is not required." Pierce, supra.
The evidence in this case, viewed in the light most
favorable to the defendant, did not support an instruction on
involuntary manslaughter. The evidence was that the defendant
shot the victim in the back of the head at close range. "Absent
some evidence that the defendant's knowledge was impaired,
intentionally discharging a firearm in the direction of another
person creates a plain and strong likelihood of death" (footnote
omitted). Commonwealth v. Mack, 423 Mass. 288, 290 (1996). The
defendant's appellate argument that he meant only to scare or
intimidate the victim is unavailing. There was no such evidence
at trial; the sole issue was the identity of the shooter. The
judge was "not required to instruct on a hypothesis that [was]
not supported by the evidence." Commonwealth v. Santo, 375
Mass. 299, 305-306 (1978). See Commonwealth v. Pina, 481 Mass.
413, 424 (2019) (defendant's claim that "he meant to fire a
warning shot" was "entirely speculative" and did not warrant
involuntary manslaughter instruction); Pierce, 419 Mass. at 34
(where defense was alibi and no evidence was offered that
victim's wounds were inflicted unintentionally, it would have
13 been error for judge to give involuntary manslaughter
instruction).
3. Firearms convictions. After trial in this case, the
Supreme Judicial Court held in Guardado I, 491 Mass. at 686-693,
that absence of licensure is an element of the offenses of
unlawful possession of a firearm and unlawful possession of a
loaded firearm. In Guardado II, 493 Mass. at 7-12, the court
held that, although the Commonwealth presented insufficient
evidence of absence of licensure at the original trial, the
prohibition against double jeopardy did not bar a retrial.
After the issuance of Guardado II, the parties filed a
joint status report in which they state that the Guardado
decisions entitle the defendant to a new trial on his firearms
convictions. Upon our independent review, we agree. We
therefore vacate the convictions of unlawful possession of a
firearm and unlawful possession of a loaded firearm, with the
Commonwealth remaining free to retry the defendant if it so
chooses. See Guardado II, 493 Mass. at 12.
Conclusion. The judgments of conviction of unlawful
possession of a firearm and unlawful possession of a loaded
14 firearm are vacated. The judgment of conviction of murder in
the second degree is affirmed.
So ordered.
By the Court (Wolohojian, Shin & Ditkoff, JJ. 4),
Clerk
Entered: November 29, 2023.
4 The panelists are listed in order of seniority.