Commonwealth v. Ronchi

• Court: Massachusetts Supreme Judicial Court
• Decided: February 14, 2023
• Docket: SJC 13043
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-13043

COMMONWEALTH vs. PETER RONCHI.

Essex. October 13, 2022. - February 14, 2023.

Present: Budd, C.J., Gaziano, Cypher, Kafker, & Wendlandt, JJ.

Homicide. Evidence, Prior misconduct, Pattern of conduct, Expert opinion, Intent. Intent. Practice, Criminal, Capital case, Argument by prosecutor, Instructions to jury, Jury and jurors, Deliberation of jury. Jury and Jurors.

Indictments found and returned in the Superior Court Department on August 21, 2009.

The cases were tried before David A. Lowy, J.

Neil L. Fishman for the defendant. Marina Moriarty, Assistant District Attorney, for the Commonwealth.

GAZIANO, J. On the evening of May 16, 2009, the defendant

repeatedly stabbed his nine months pregnant girlfriend, Yuliya

Galperina, killing her and her viable fetus. At trial, there

was no dispute that the defendant had stabbed Galperina; the

primary issue before the jury was whether the fatal stabbing had 2

been mitigated by heat of passion upon reasonable provocation so

as to reduce the defendant's liability from murder to

manslaughter. The basis for the provocation, the defendant

argued, was Galperina's (false) disclosure that he was not the

father.

A Superior Court jury convicted the defendant of two counts

of murder in the first degree. In this appeal, the defendant

argues that the evidence was insufficient to support his

convictions of murder in the first degree, on the ground that no

rational juror could have found that the stabbings were not the

result of a heat of passion upon reasonable provocation. The

defendant also argues that he cannot, as a matter of law, be

held liable for the death of the full-term fetus because he did

not stab or injure the fetus, who died due to loss of maternal

blood circulation. In addition, the defendant challenges

certain of the judge's evidentiary rulings, statements in the

prosecutor's closing argument, and the discharge of a

deliberating juror. The defendant also asks this court to

exercise its extraordinary authority under G. L. c. 278, § 33E,

to reduce the verdicts to manslaughter.

For the reasons that follow, we affirm the defendant's

convictions and, after a thorough review of the entire trial

record, decline to allow relief under G. L. c. 278, § 33E. We

also take this opportunity to disavow our precedent on 3

reasonable provocation based on sudden oral revelations of

infidelity, and, relatedly, lack of paternity. See Commonwealth

v. Schnopps, 383 Mass. 178, 180-182 (1981), S.C., 390 Mass. 722

(1984).

1. Facts. We recite the facts the jury could have found,

reserving certain facts for later discussion of specific issues.

a. Commonwealth's case. In May of 2009, Galperina was

living in an apartment in Salem with her eight year old son and

three year old daughter; the apartment was on the fifth floor of

a two-building complex. Galperina and the defendant had been

dating for approximately two years. She was nine months

pregnant, with a due date of May 21 or 22, 2009; the defendant

was the father.

On Saturday, May 16, 2009, the defendant ate dinner and

watched a movie at a friend's house in Gloucester. He left at

approximately 10 P.M. The friend described the evening as

ordinary and the defendant's demeanor as "pleasant" and

"jovial." Security surveillance footage at Galperina's

apartment building showed the defendant entering the building at

10:16 P.M. and reaching the fifth-floor hallway at 10:17 P.M.

The defendant left Galperina's apartment approximately ninety

minutes later, at 11:46 P.M. A neighbor, who lived two

apartments away from Galperina, had heard a scream sometime

between 11:30 P.M. and midnight. 4

At around 7:20 A.M. on the morning of May 17, 2009, Alvaro

Espinal-Martes took the elevator to the fifth floor to get a

ride to work from his friend and coworker. When the elevator

door opened, he saw Galperina's distraught children in the

hallway. One of the children grabbed his hand and led him to

Galperina's apartment. Her body was on the living room floor,

bloody and covered with a sheet. Espinal-Martes brought the

children to his friend's nearby apartment and called 911.

First responders observed Galperina lying on her back next

to a futon, covered in a sheet. She had lacerations to her

torso, and blood was splattered on the furniture, the floors,

and the walls. In the bathroom, police found a pair of blood-

soaked pants on the floor and bloodstains on the sink, faucet,

and toilet.

An autopsy revealed that Galperina had sustained at least

fifteen stab wounds, including wounds to the back of her head,

upper chest, and back. She died of blood loss from the multiple

stab wounds to her neck and torso. The fetus was full term and

would have been capable of surviving outside the uterus. The

fetus had not been stabbed; the cause of death was "loss of

maternal [blood] circulation due to stab wounds to the mother."

On May 17, 2009, at approximately 4 P.M., the defendant

approached a uniformed police officer outside a Norwalk,

Connecticut, police station. The defendant was sobbing and 5

asked the officer for help. He told the officer that he had had

a nightmare in which "he killed his eight-and-a-half-month

pregnant girlfriend." The defendant then explained to that

officer, and others who had joined them, that it was actually

not a nightmare at all. The defendant said that he had killed

his girlfriend in Salem, Massachusetts, with a knife, but had

left her children unharmed. He placed a blanket over Galperina

so that her children would not see her when they awoke. The

defendant then drove to Norwalk and parked at a discount

department store. He left the knife he had used in the stabbing

in his minivan, purchased a bicycle, and rode around until he

reached a police station. The defendant told the officers that

he was not a "bad guy," and that he had stabbed his girlfriend

because she told him that he was not the father of her baby.

After the defendant was arrested, police obtained a warrant

to search his house and the minivan. They found a pair of

bloodstained white sneakers and a jacket with bloodstains inside

one of the sleeves in the defendant's living room.1 Inside the

1 Police also found a ripped-up letter with the words "Last Will and Testament" in a waste basket in the defendant's home office. The letter was dated May 14, 2009, and stated: "I wish to leave all my assets to my two children. . . . It is my understanding and hope that the trust . . . will be of benefit to [them], as well, and they will be the sole beneficiaries of the trust." The torn-up pieces of paper did not include a bequest for the expected child. The defendant testified that he had planned to update his will, and introduced another note dated May 14, 2009, which said, "Once my unborn son . . . is 6

minivan, investigators found a bloodstained knife and sheath in

the driver's door compartment. There was occult blood on the

driver's door handle and seatback. Deoxyribonucleic acid (DNA)

testing on the sneakers, the knife, and the sheath, according to

the Commonwealth's expert, matched Galperina's genetic profile.

The knife handle and the bloodstain on the jacket each contained

a mixture of DNA from Galperina and the defendant.2

b. Defendant's case. As stated, the theory of defense was

that the defendant stabbed Galperina in the heat of passion

following her announcement that he was not the baby's father,

and that he lacked the intent for premeditated murder.

The defendant testified in his own defense. He said that

he met Galperina in 2006 and they began an intimate

relationship. At first, they agreed to use birth control. In

2008, Galperina told the defendant that she was pregnant. This

born, I would like him to get a quarter of these assets, and to have this administered by his mother." The defendant also said that he intended to provide for the child by purchasing a life insurance policy.

2 In Commonwealth v. Mattei, 455 Mass. 840, 851-853 & n.25 (2010), this court concluded that testimony that a DNA "match" exists is inadmissible without accompanying statistical interpretation of the likelihood of that match by an expert. Here, however, the expert testified, without objection, that "[t]he major DNA profile matched the DNA profile of Yuliya Galperina." We conclude that, in these circumstances, there was no substantial likelihood of a miscarriage of justice from the expert's unobjected-to use of the word "match" without further discussion of the underlying statistics. See, e.g., Commonwealth v. Seino, 479 Mass. 463, 469-472 (2018). 7

upset the defendant, because he did not think they were ready to

have a baby, and they had agreed they would not. The two split,

and soon thereafter Galperina learned that she in fact was not

pregnant.

Galperina and the defendant reconciled, and then they

decided to have a child together. The defendant testified that

he changed his mind because he "loved [Galperina] very much."

He went with her to prenatal appointments, displayed an

ultrasound image of the fetus in his living room, and purchased

a changing table. He also kept a file of things having to do

with his expected child, and he had chosen a name for the child.

The defendant said that he and Galperina had agreed to "raise

the child as we were a married couple. We were both going to

participate in the raising of the child . . . equally."

During the course of her pregnancy, the defendant and

Galperina nonetheless had several disagreements concerning her

parenting practices and, in particular, her use of natural and

traditional remedies. The defendant pointed out that she left

her young children unattended, failed to dress them in clothing

appropriate for the weather, and allowed them to play in the

rear seat of a moving vehicle while they were not wearing

seatbelts. The defendant also disliked that Galperina brought

her daughter to an unqualified healer to treat a learning

disability. Galperina consumed "all kinds of weird 8

concoctions," including large doses of raw apricot seeds, that

the defendant believed were toxic and potentially harmful to

their child. Galperina refused to allow the defendant to take

the baby to meet his family until the baby was three months old,

because her ethnic tradition required that a newborn child be

isolated from visitors for the child's protection. As her due

date approached, Galperina acquiesced to several of the

defendant's demands; she promised to take the child to a

conventional holistic pediatrician, and to permit State-mandated

vaccinations.

The defendant also testified that he usually visited

Galperina on Saturday nights and carried a hunting knife for his

own protection. He believed that her apartment building was in

a "potentially dangerous area," and had seen groups of young and

"seedy looking" individuals gathered around the entrance to the

building. When he visited Galperina for the last time, he was

carrying a knife in his coat pocket.

On that evening, he arrived at around 10 P.M. They

discussed the pending birth, and Galperina said that she no

longer wanted the baby to be vaccinated. The defendant was

annoyed that she was reneging on their agreement. She further

angered the defendant by telling him that she had paid one

hundred dollars to the natural healer for the baby's care. She

added that she had ignored his advice and had consumed a large 9

number of apricot seeds, and she insisted that the baby could

not visit with the defendant's family as a newborn. These

statements made the defendant "quite angry," and he raised his

voice. He announced that he was leaving because he was not

being allowed to make "any decisions about the baby," and he put

on his coat. The defendant told Galperina, "I'm leaving you and

I'll send you money." She replied, "Don't even bother sending

the money. It's not your child."

The defendant testified that he felt anger, rage, and

betrayal. He "lost it" and blacked out. His next memory was

being in the bathroom, covered in blood and holding a knife.

"It was, like, waking up. I had the knife in my hand and there

was blood everywhere." He removed his bloodstained pants,

dressed in a pair of pants he found in a hamper, kissed

Galperina, covered her up with a sheet, and left the apartment.

The defendant introduced expert testimony to establish that

the killing was mitigated by a fragile mental state. Dr. Thomas

Deters, a neuropsychologist, conducted a comprehensive

examination of the defendant. Deters interviewed the defendant

a number of times, administered a battery of tests, reviewed

police reports and statements, and interviewed the defendant's

relatives and friends. Deters noted that the defendant suffered

head trauma as a young child and as an adolescent, as well as

from playing soccer in college. Multiple stressors affected the 10

defendant's mental functioning at the time of the stabbing;

these included the recent death of his mother, his strained

relationship with his brother, a loss of employment, isolation

from his children, and Galperina's refusal to allow him to

coparent.

Deters diagnosed the defendant as suffering from numerous

neurological impairments, including Asperger's syndrome, anxiety

disorder, mood disorder, personality disorder, major depression,

sleep disorder, and prefrontal lobe abnormalities. As a result

of these illnesses, Deters opined, the defendant was unable to

act appropriately when confronted with a stressful situation.

Deters believed that, at the time of the stabbing, the defendant

had been unable to weigh the consequences of his actions or to

appreciate the cruelty of his actions. The defendant's mental

impairments made him susceptible to an enraged response to

provocation.

In rebuttal, the prosecutor introduced testimony by Dr.

Tali Walters, a forensic psychologist. Based on her interview

of the defendant, and her examination of the police reports and

the defendant's statements, Walters testified that the defendant

did not have a mental illness. It was her opinion that he had

no impairments that would affect his ability to reflect coolly,

to premeditate, or to form an intent to kill. 11

2. Prior proceedings. In August of 2009, a grand jury

returned indictments charging the defendant with two counts of

murder in the first degree in connection with the deaths of

Galperina and "Baby Boy Galperina." Beginning on October 9,

2012, the defendant was tried before a Superior Court jury. The

Commonwealth proceeded on theories of deliberate premeditation

and extreme atrocity or cruelty for the death of Galperina, and

deliberate premeditation for the death of her fetus. On

November 8, 2012, a Superior Court jury convicted the defendant

of two counts of murder in the first degree, under each of the

theories alleged by the Commonwealth.

3. Discussion. The defendant argues that his convictions

of murder in the first degree should be vacated because no

rational juror could have found the absence of heat of passion

upon reasonable provocation based on the revelation of his lack

of paternity. The defendant also maintains that his conviction

for the death of the fetus cannot stand because the common-law

rule of liability for the death of a viable fetus, see

Commonwealth v. Cass, 392 Mass. 799, 805-807 (1984), is based on

the direct infliction of prenatal injuries. Accordingly, he

contends, he cannot be liable for murder where the fetus died as

a result of maternal blood loss. The defendant further argues

that the conviction was not supported by sufficient evidence, 12

because the Commonwealth did not prove an intent to kill the

fetus.

In addition, the defendant maintains that a number of other

errors at trial mandate that he receive a new trial. He

challenges several of the judge's evidentiary rulings, including

the exclusion of pattern evidence to demonstrate that Galperina

told another intimate partner that he was not the father of

another of her children; the denial of the defendant's motion to

introduce expert testimony on his mental state, in reliance on

Commonwealth v. Jaime, 433 Mass. 575, 577-578 (2001), and

Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531-532

(1986); and the denial of a motion to strike Walters's testimony

due to its lack of scientific reliability.

The defendant also asserts that the prosecutor's reference

in her closing argument to "transferred intent" created a

substantial likelihood of a miscarriage of justice, and that the

conviction of murder of the fetus was predicated on an erroneous

jury instruction that lessened the Commonwealth's burden to

prove that the fetus had been viable. In addition, the

defendant argues that the judge erred in dismissing a

deliberating juror. Finally, the defendant asks us to exercise

our extraordinary authority, pursuant to G. L. c. 278, § 33E, to

reduce the degree of guilt in the interest of justice, due to

the mitigating circumstances of a crime of passion. 13

a. Heat of passion upon reasonable provocation. The

defendant contends that this was a case of manslaughter, not

murder, and that no reasonable juror could have found, beyond a

reasonable doubt, the absence of the mitigating circumstance of

heat of passion upon reasonable provocation, based on the

combination of Galperina's "extraordinary provocations" and his

fragile mental state.

An intentional killing that otherwise would be murder may

be reduced to voluntary manslaughter where there are extenuating

circumstances, such as "sudden passion based on provocation."

See, e.g., Commonwealth v. Whitman, 430 Mass. 746, 753-755

(2000), and cases cited ("Voluntary manslaughter is an

intentional killing in the heat of passion as a result of severe

provocation" [citation omitted]). In general, words alone are

not sufficient provocation to reduce the crime of murder to

manslaughter. Commonwealth v. Anderson, 396 Mass. 306, 314

(1985). "[V]erbal insults and arguments, even if obscene or

hostile, cannot constitute sufficient provocation, for a

reasonable person 'can be expected to control the feelings

aroused' thereby" (citation omitted). Commonwealth v.

Estremera, 383 Mass. 382, 392 (1981). See, e.g., Commonwealth

v. Vatcher, 438 Mass. 584, 589 (2003) (eleven year old

physically challenged victim's extended temper tantrum, "however

frustrating, annoying, and even infuriating his behavior, . . . 14

did not rise to 'adequate provocation'"); Commonwealth v.

Groome, 435 Mass. 201, 219-222 (2001) (victim's revelation that

she had acquired immunodeficiency syndrome and probably had

transmitted disease to defendant was insufficient to support

instruction on voluntary manslaughter); Commonwealth v. Masello,

428 Mass. 446, 449 (1998) (heated argument was insufficient to

constitute adequate provocation); Commonwealth v. Seabrooks, 425

Mass. 507, 514 (1997), S.C., 433 Mass. 439 (2001) (false

accusation of crime was insufficient to establish adequate

provocation); Commonwealth v. Burke, 376 Mass. 539, 542-543

(1978) (defendant was not entitled to instruction on provocation

where he told victim that he loved her, and she responded with

expletive and words of rejection).

An exception to this rule exists, however, "where the words

convey inflammatory information to the defendant." Commonwealth

v. Mercado, 452 Mass. 662, 671 (2008). "[T]he existence of

sufficient provocation is not foreclosed because a defendant

learns of a fact from a statement rather than from personal

observation. If the information conveyed is of the nature to

cause a reasonable person to lose his self-control and did

actually cause the defendant to do so, then a statement is

sufficient." Groome, 435 Mass. at 220-221, quoting Model Jury

Instructions on Homicide 28-29 (1999). 15

An even more narrow exception is applicable where the words

constitute a "peculiarly immediate and intense offense to

[one's] sensitivities." Commonwealth v. Bermudez, 370 Mass.

438, 440-442 (1976). We have deemed a sudden oral revelation of

infidelity inflammatory information sufficient to constitute

such provocation. See, e.g., Commonwealth v. LeClair, 445 Mass.

734, 741-743 (2006); Schnopps, 383 Mass. at 180-182. Contrast

Commonwealth v. Gulla, 476 Mass. 743, 748-749 (2017)

(defendant's prior knowledge of infidelity precluded claim of

sudden discovery). See also 2 W.R. LaFave, Substantive Criminal

Law § 15.2(b)(5), at 500 (2d ed. 2003) ("a sudden confession of

adultery by a wife, or information from a third person that a

wife has been unfaithful, has sometimes been held to constitute

a provocation to the husband of the same sort as if he had made

an 'ocular observation' of his wife's adultery").3

To be sufficient to establish reasonable provocation, the

words must comprise sudden knowledge; an actual confirmation of

3 In some other States, a verbal revelation of infidelity falls within the general rule that mere words are insufficient to establish reasonable provocation. In those cases, reasonable provocation requires that a defendant catch the other spouse and the spouse's paramour in the act. See, e.g., Luch v. State, 413 P.3d 1224, 1230 (Alaska Ct. App. 2018) (common law requires defendant find spouse in very act of committing adultery); People v. Chevalier, 131 Ill. 2d 66, 76 (1989) (only discovery of parties in act of adultery or immediately before or after act will suffice as provocation); State v. Thomas, 169 Iowa 591, 598 (1915) (adequate provocation existed where act of adultery committed in presence and sight of defendant). 16

a suspicion of infidelity is not sufficient. See Schnopps, 383

Mass. at 181-182 (new trial was required where judge declined to

give instruction on manslaughter because there was conflicting

evidence whether defendant had just learned of wife's infidelity

or had known of it for months); Bermudez, 370 Mass. at 440-442

(no instruction on reasonable provocation was warranted where

defendant had been separated from wife for three weeks and she

made hostile and "obscene" statements telling defendant of her

infidelity when he went to visit her to see their baby, but

holding that "[t]he existence of sufficient provocation is not

foreclosed absolutely because a defendant learns of a fact from

oral statements rather than from personal observation. . . . A

reasonable man can be expected to control the feelings aroused

by an insult or an argument, but certain incidents may be as

provocative when disclosed by words as when witnessed

personally. Therefore, we leave open the possibility that, in

an appropriate case, testing the defendant's response on an

objective standard, sufficient provocation may be found in

information conveyed to a defendant by words alone"). Compare

Mercado, 452 Mass. at 672 (no reasonable provocation where

defendant had suspected for some time that wife had been

unfaithful); Commonwealth v. Andrade, 422 Mass. 236, 237-238

(1996) (no reasonable provocation where defendant had suspected

for several weeks that wife had been unfaithful, even though he 17

had confirmed his suspicion less than seven hours before killing

her).

Accordingly, based on our existing jurisprudence on

manslaughter, the defendant had grounds upon which to argue that

the Commonwealth failed to establish that there were no

mitigating circumstances that would reduce the stabbing here

from murder to manslaughter, see Bermudez, 370 Mass. at 440-442,

and the judge properly instructed on manslaughter due to heat of

passion, see Commonwealth v. Brown, 387 Mass. 220, 227 (1982),

quoting Commonwealth v. LePage, 352 Mass. 403, 419 (1967)

(manslaughter instruction must be given where "any view of the

evidence will permit a finding that the offence is manslaughter

and not murder"). The defendant's argument before us, however,

rests on viewing the evidence in the light most favorable to

him, rather than, as we must consider it when analyzing a

question of sufficiency, in the light most favorable to the

Commonwealth. See, e.g., Hrycenko v. Commonwealth, 459 Mass.

503, 510-511 (2011).

Notwithstanding the testimony that the defendant

highlights, the jury were free to disregard his explanation that

"he lost it" upon hearing that he was not the father of the

fetus. See Commonwealth v. Ehiabhi, 478 Mass. 154, 166-167

(2017). The jury reasonably could have adopted the

Commonwealth's theory that the defendant got into a heated 18

argument with his girlfriend, formed an intent to kill her and

her fetus, and stabbed her multiple times in the area of her

vital organs, in accordance with that plan. See Commonwealth v.

Burgess, 450 Mass. 422, 432 (2008) (deliberate premeditation

matter of logical sequence not necessarily time). These were

questions of fact reserved for a fact finder properly instructed

on the crimes of murder and voluntary manslaughter. We discern

no basis in this record to second guess the jury's

determination.

We also take this opportunity to address the question

whether our jurisprudence on manslaughter should continue to

recognize oral revelations of infidelity as a basis for

reasonable provocation. In Commonwealth v. Steeves, 490 Mass.

270, 292 n.12 (2022), we "express[ed] serious doubt about the

ongoing viability of this legal principle, where it rests on the

outmoded perception that '[t]he killing of a spouse (usually a

wife) by a spouse (usually a husband)' is 'an acceptable

response to the discovery of infidelity,' thereby 'reinforc[ing]

male irrationality as normal, and legitim[izing] the view of

women as property'" (citation omitted). Likewise, in State v.

Shane, 63 Ohio St. 3d 630, 637 (1992), the Supreme Court of Ohio

observed that the doctrine "has its foundation in the ancient

common-law concept that the wife is the property of the

husband": "[w]hen a man is taken in adultery with another man's 19

wife, if the husband shall stab the adulterer, or knock out his

brains, that is bare manslaughter; for jealousy is the rage of a

man, and adultery is the highest invasion of property" (citation

omitted). The court concluded that "[t]his archaic rule has no

place in modern society." Id.

We conclude that the exception in the Commonwealth to the

mere words rule for sudden oral revelations of infidelity has

run its course. The exception rests upon a shaky, misogynistic

foundation and has no place in our modern jurisprudence. Going

forward, we no longer will recognize that an oral discovery of

infidelity satisfies the objective element of something that

would provoke a reasonable person to kill his or her spouse.

By today's ruling, however, we do not foreclose the

possibility of sufficient provocation caused by learning of

other types of information of a "nature to cause a reasonable

person to lose his self-control" (citation omitted). Groome,

435 Mass. at 220. It is difficult, given the vagaries of human

conduct, to delineate all of the exceptions to the general rule

that mere words are insufficient to constitute reasonable

provocation. In each case, the trial judge must consider

whether the particular information conveyed to the defendant was

sufficient to warrant an instruction on voluntary manslaughter.

See Commonwealth v. Felix, 476 Mass. 750, 756-757 (2017)

(discussing judge's duty to provide instruction on reasonable 20

provocation where precipitating event would have provoked heat

of passion in ordinary person); Commonwealth v. Camacho, 472

Mass. 587, 602 (2015) (instruction on reasonable provocation is

warranted if there is evidence deemed legally sufficient to

cause accused to lose self-control in heat of passion). See

also Commonwealth v. Pina, 481 Mass. 413, 422 (2019)

(instruction on manslaughter is required if evidence, considered

in light most favorable to defendant, would permit verdict of

manslaughter, not murder).

b. Liability for death of viable fetus where fetus was not

directly injured. At common law, the destruction of a fetus in

utero was not a homicide. See Cass, 392 Mass. at 805. The

issue "debated at common law" was whether criminal liability

"might rest on a defendant's injuring a fetus in utero, where

the fetus was later born alive, and then died of the injury

without further guilty intervention by the defendant."

Commonwealth v. Edelin, 371 Mass. 497, 512 (1976). See Dietrich

v. Northampton, 138 Mass. 14, 15, 17 (1884) (discussing common-

law "born alive" rule).

In Cass, 392 Mass. at 799, the court addressed whether a

viable fetus is a "person" for purposes of the statute on motor

vehicle homicide. See G. L. c. 90, § 24G (homicide by motor

vehicle is defined, in part, as operating motor vehicle while

under influence of intoxicating substances and by such operation 21

"caus[ing] the death of another person"). The court examined

the foundation for the "ancient" rule that a fetus must be "born

alive," and rejected this limitation to the statutory definition

of a person. See Cass, supra at 805-807. The dominant

rationale for the rule, the court noted, was the impossibility

of determining whether "the fetus was alive when the accused

committed his act." Id. at 806 & n.5. The better rule, the

court held, "is that infliction of prenatal injuries resulting

in the death of a viable fetus, before or after it is born, is

homicide." Id. at 807. See Commonwealth v. Lawrence, 404 Mass.

378, 383-384 (1989) (extending liability for death of viable

fetus to charge of involuntary manslaughter).

The defendant contends that "Cass does not apply to the

circumstances at bar because the fetus did not suffer a prenatal

injury." The defendant emphasizes that the fetus was uninjured

by the stabbing and died as a result of loss of maternal blood.

In the alternative, he urges this court to overrule Cass as an

unlawful usurpation of the Legislature's authority to define

criminal liability.

The defendant's contention that the fetus was uninjured by

the stabbing of Galperina is strained at best. Admittedly, none

of the fifteen stab wounds was inflicted on or touched the

fetus. Nonetheless, the defendant committed an act of violence

against a woman who was nine months pregnant, repeatedly 22

stabbing her in, among other areas, the torso, where the vital

organs are located. By ending the mother's life, he destroyed

the viable fetus through the cessation of life-sustaining

maternal blood flow. See Cass, 392 Mass. at 807 ("If a person

were to commit violence against a pregnant woman and destroy the

fetus within her, we would not want the death of the fetus to go

unpunished"). See also Commonwealth v. Crawford, 417 Mass. 358,

359 (1994), S.C., 430 Mass. 683 (2000) (upholding conviction of

involuntary manslaughter where mother was killed by gunshot

wound to face and viable fetus died of oxygen deprivation).

Nothing in Cass, supra at 806-807, or our subsequent cases,

requires that a viable fetus suffer a direct traumatic injury

such as a gunshot wound or a stab wound.

The defendant also argues that we should overrule Cass as

an inappropriate exercise of "raw judicial power." Relying on

the dissent by Justice Wilkins, he argues that Cass is flawed

because the court usurped the Legislature's exclusive authority

to define criminal offenses and what conduct is punishable under

the criminal law. The defendant appears to overlook Justice

Wilkin's discussion of the court's expanded definition of the

word "person" "in the construction of an exclusively statutory

crime," motor vehicle homicide. Id. at 809 (Wilkins, J.,

dissenting). Here, the question is not the interpretation of a

statutorily defined offense. At issue in this case is the 23

common-law definition of murder, a matter within the sole

jurisdiction of this court. See Commonwealth v. Castillo, 485

Mass. 852, 865-866 (2020) (exercising court's authority to

redefine homicide offense). Accordingly, the defendant's

argument concerning the purported violation of the separation of

powers is unavailing.

c. Evidence of deliberate premeditation with respect to

fetus. The defendant also argues that the death of the fetus

was "merely incident to and an unintentional byproduct of the

death of Galperina." He contends that no rational juror could

have found that he specifically intended to kill the fetus.

To convict a defendant of murder in the first degree on a

theory of deliberate premeditation, the Commonwealth must prove

that the defendant intentionally caused the death of the victim

"after a period of reflection." Commonwealth v. Chipman, 418

Mass. 262, 269 (1994). "No particular period of reflection is

required for deliberate premeditation to be found. . . . The

law recognizes that a plan to murder may be formed within a few

seconds." Id. See Model Jury Instructions on Homicide 46-47

(2018) (key is sequence of thought process).

In determining whether the Commonwealth met its burden to

establish each element of the offense charged beyond a

reasonable doubt, we rely on the familiar Latimore standard.

See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). 24

"[The] question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt." Id. at 677, quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979). Although a conviction may be based

entirely on circumstantial evidence, and the inferences drawn

need only be reasonable, not inescapable, see Commonwealth v.

Rakes, 478 Mass. 22, 32, 45 (2017), a "conviction may not rest

on the piling of inference upon inference or on conjecture and

speculation," Commonwealth v. Lao, 443 Mass. 770, 779 (2005),

S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011), citing

Commonwealth v. Swafford, 441 Mass. 329, 339–343 (2004).

Considering the evidence before the jury in the light most

favorable to the Commonwealth, we conclude that the evidence

would have permitted a reasonable juror to find, beyond a

reasonable doubt, that the defendant deliberately intended to

kill the fetus. By his own statements, the defendant was well

aware of the correlation between Galperina's health and the

health of the fetus. Among other things, he excoriated her for

consuming what he viewed as toxic amounts of apricot seeds while

she was pregnant. The defendant told the jury that he was

furious at Galperina's revelation that he was not the father.

Fueled by anger, he pulled a hunting knife from his coat pocket,

removed the knife from its sheath, and stabbed her fifteen times 25

in the torso, the location of her vital organs, and in the back

of the head and neck. The jury reasonably could have inferred

that the defendant knew that by killing a woman who was nine

months pregnant, he would end the life of the viable fetus

carried in utero. See Commonwealth v. Whitaker, 460 Mass. 409,

419 (2011) (deliberate premeditation may be inferred from

"nature and extent of a victim's injuries, the duration of the

attack, the number of blows, and the use of various weapons").4

d. Evidentiary rulings. i. Exclusion of pattern

evidence. The defendant sought to introduce evidence that,

while she was pregnant with her daughter, Galperina told a

former boyfriend that he was not the baby's father. The

defendant argued that the evidence was admissible to show a

pattern of misconduct, to corroborate his testimony that he had

been "extraordinarily" provoked by Galperina, or to rebut the

4 The judge imposed consecutive sentences for Galperina's death and the death of her fetus. The defendant contends that this sentencing scheme violated the prohibition against double jeopardy by imposing multiple punishments for the same offense, as well as the "the fundamental principle of the criminal law" that liability rests on a defendant's intent and the results of his or her actions. We discern no abuse of discretion. As discussed supra, the evidence before the jury would have allowed them to conclude beyond a reasonable doubt that the defendant was liable for the death of the fetus based on a finding that he specifically intended to kill the fetus. The judge had authority to impose consecutive sentences for the unlawful killings of a mother and her viable fetus. See Commonwealth v. Crawford, 417 Mass. 358, 359 (1994), S.C., 430 Mass. 683 (2000). 26

suggestion that he was fabricating the reason for that

Prior bad act evidence generally is inadmissible. See

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014); Mass. G.

Evid. § 404(b)(1) (2022). It may be admissible, however, to

demonstrate a common scheme, pattern of operation, absence of

accident or mistake, identity, or motive. Commonwealth v.

Dwyer, 448 Mass. 122, 128 (2006); Mass. G. Evid. § 404(b)(2).

It was the defendant's burden, as the proponent of the evidence,

to establish, by a preponderance of the evidence (1) that the

act occurred; (2) that the prior bad act evidence pertained to

some relevant issue at trial; and (3) that the prior event and

the circumstances of the crime charged had a uniqueness or

particularly distinguishing pattern of conduct common to the

current and former incidents. See Commonwealth v. Leonard, 428

Mass. 782, 785-786 (1999). A judge may exclude prior bad act

evidence if its probative value is outweighed by the risk of

unfair prejudice. Commonwealth v. Almeida, 479 Mass. 562, 568

(2018). "Determinations of the relevance, probative value, and

prejudice of such evidence are left to the sound discretion of

the judge" and will not be disturbed absent clear error

(citation omitted). Commonwealth v. Bryant, 482 Mass. 731, 735

(2019). 27

Following the defendant's motion, the judge conducted a

voir dire hearing of the former boyfriend. The former boyfriend

testified that he had been annoyed by Galperina's frequent

contact with her son's father, who maintained a regular presence

in his son's life. The former boyfriend asked Galperina "as a

joke, 'Were you sleeping with him?'" Galperina replied, "Yes,

and you know, the child I'm carrying is his." According to the

former boyfriend, she said this once or twice "as a joke," and

they both laughed.

The judge then excluded the proffered evidence about

Galperina's statements to the former boyfriend on three separate

grounds. First, he found that the prior comment did not

establish a pattern (possibly because the testimony was that

Galperina had been joking around, as compared to the volatile

situation leading to her death). Second, the judge found that

the defendant was attempting to introduce the evidence for

impermissible propensity purposes. See Mass. G. Evid.

§ 404(b)(1). The judge commented, "[B]ased on this proffer,

anything that could be taken from it, if anything at all, and

really, nothing can, would be a propensity inference." Third,

the judge found that the probative value of the statement was

substantially outweighed by the risk of undue prejudice. We

discern no abuse of discretion in the judge's decision to deny

the introduction of the prior bad act evidence. 28

The judge also denied the defendant's request to extend

Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005), and to

allow the admission of Galperina's statement as character

evidence. See id. at 650, 663-664 (where issue of self-defense

is raised and identity of first aggressor is in dispute, judge

may allow introduction of evidence of specific incidents of

violence initiated by victim even if incidents were unknown to

defendant). The defendant argues that "[t]here is no reason why

the same rule should not adhere here -- where the victim had a

pattern of making identical extraordinarily provocative

statements." Adjutant establishes an exception to our general

rule prohibiting evidence of a person's character "to prove that

on a particular occasion the person acted in accordance with the

character or trait." See Mass. G. Evid. § 404(a)(1). "Our

decision in the Adjutant case is specifically limited to

situations where the defendant claims self-defense . . . ."

Commonwealth v. Benoit, 452 Mass. 212, 228 (2008). See Camacho,

472 Mass. at 596 n.12 (Adjutant rule is not applicable to

defense of another). We decline the defendant's invitation to

extend the holding in Adjutant beyond its narrow exception.

ii. Exclusion of opinion testimony by defense expert.

Prior to the testimony by Deters, the defendant's psychological

expert, the judge reminded the attorneys that he intended to

enforce this court's rulings in Jaime, 433 Mass. at 577-578, and 29

Department of Youth Servs., 398 Mass. at 531-532. "The purpose

of this limitation on expert witness testimony is to prevent the

proponent of the opinion from 'import[ing] inadmissible hearsay

into the trial.'" Commonwealth v. Piantedosi, 478 Mass. 536,

543 (2017), quoting Commonwealth v. Goddard, 476 Mass. 443, 448

(2017).

Under that precedent, an expert's opinion may be based on

"(a) facts observed by the witness or otherwise in the witness's

direct personal knowledge; (b) evidence already in the record or

that will be presented during the course of the proceedings,

which facts may be assumed to be true in questions put to the

witness; and (c) facts or data not in evidence if the facts or

data are independently admissible in evidence and are a

permissible basis for an expert to consider in formulating an

opinion." Mass. G. Evid. § 703. See Commonwealth v. Barbosa,

457 Mass. 773, 784-785 (2010), cert. denied, 563 U.S. 990 (2011)

(expert was prohibited from informing jury during direct

examination about facts and data that were not in evidence, but

such testimony would have been admissible with proper witness or

with foundation that expert considered in forming opinion);

Department of Youth Servs., 398 Mass. at 532 ("thrust of [our]

rule is to leave inquiry regarding the basis of expert testimony

to cross-examination"). 30

The defendant objects to the judge's ruling that precluded

Deters from testifying on direct examination to facts that were

not in evidence, but upon which he had relied to form the basis

of his opinion. The defendant argues that the judge's decision,

which fully comported with the rules of evidence concerning

expert opinion testimony, undermined Deters's testimony "by

impeding its narrative flow and calling into question its

credibility and reliability." The defendant maintains that the

exclusion of certain of Deters's proffered testimony violated

his right to a fair trial and to present a complete defense.

We do not agree. The judge's decision to exclude

statements by Deters about the basis of his knowledge, where the

facts upon which Deters relied were not in evidence, did not

deprive the defendant of the ability to present a full defense.

See Piantedosi, 478 Mass. at 543. "A defendant's right to

present a full defense . . . is not without limits . . . , and

as a general rule, does not entitle him [or her] to place before

the jury evidence normally inadmissible" (quotation and

citations omitted). Commonwealth v. Chappell, 473 Mass. 191,

204 (2015).

Deters testified to having reviewed thousands of pages of

discovery interviewing the defendant for twenty-nine hours and

conducting batteries of neurological testing, having interviewed

the defendant's family members, and having reviewed the 31

substance of the defendant's medical history. Deters also

referenced, as facts already in the record that underlay the

bases of his opinion, the defendant's statements on direct and

cross-examination, and the testimony of the defendant's brother,

daughter, and ex-wife; an acquaintance; and a business

associate. The direct examination of Deters included details

concerning the defendant's medical history, educational

background, career, major bouts of depression, panic attacks,

sleep dysfunction, social isolation, stressors, and

abnormalities of his prefrontal lobe.

iii. Motion to strike certain testimony by Commonwealth's

expert. Walters, the Commonwealth's psychological expert,

testified that the defendant was not mentally ill. The

defendant moved to strike her opinion testimony on the ground

that she did not frame her opinion as being held to a reasonable

degree of psychological certainty. The judge denied the motion.

He noted that, in the "ballistics case" -- Commonwealth v. Pytou

Heang, 458 Mass. 827, 848-849 (2011) -- this court required that

testimony be framed in that manner but has not done so in "any

other situation." The defendant argues that this decision was

error, because it "gave Walters'[s] opinion an air of

certitude."

Because the defendant objected, we review for prejudicial

error and consider whether there was a reasonable possibility 32

that the error contributed to the guilty verdicts. Commonwealth

v. Carriere, 470 Mass. 1, 7 (2014).

A witness "qualified as an expert by knowledge, skill,

experience, training, or education" may testify to an opinion if

to do so would be helpful to the jury's understanding of the

evidence "or to determine a fact in issue." Mass. G. Evid.

§ 702. See Commonwealth v. Hinds, 487 Mass. 212, 217 (2021)

(role of expert witness is to help jurors understand evidence

that lies outside their common experience). "[E]xpert witness

testimony may be excluded as not probative of a material fact in

dispute and thus of no assistance to the jury when it amounts to

a mere guess or conjecture." Mass. G. Evid. § 702 note. See

Kennedy v. U-Haul Co., 360 Mass. 71, 73-74 (1971) ("A mere guess

or conjecture by an expert witness in the form of a conclusion

from basic facts that do not trend toward that conclusion any

more than toward a contrary one has no evidential value"). A

decision to admit or to exclude expert testimony falls within

the sound discretion of the trial judge and will not be

disturbed unless it is an abuse of discretion. See Commonwealth

v. Fitzpatrick, 463 Mass. 581, 603 (2012).

In general, no threshold level of certainty is required of

an expert before the expert's opinion may be admitted at trial.

See Commonwealth v. Torres, 469 Mass. 398, 407 (2014) ("expert

opinion that is not definitive but expressed in terms of 33

observations being consistent with a particular cause, or words

of similar effect, does not render the opinion inadmissible on

the ground that it is speculative" [quotations and citation

omitted]); Commonwealth v. Nadworny, 396 Mass. 342, 359-360

(1985), cert. denied, 477 U.S. 904 (1986) (pathologist's

inability to testify to cause of death to reasonable degree of

medical certainty did not render opinion inadmissible as

speculative). Cf. United States v. Mornan, 413 F.3d 372, 381

(3d Cir. 2005) (there is "nothing magical about the phrase, 'to

a reasonable degree of scientific certainty'"); United States v.

Cyphers, 553 F.2d 1064, 1072-1073 (7th Cir.), cert. denied, 434

U.S. 843 (1977) (no requirement that expert's testimony be

expressed in terms of reasonable scientific certainty).

Undoubtedly, the phrase "reasonable degree of scientific

certainty," or other forms of that phrase, is "a useful

shorthand expression . . . helpful for forestalling challenges

to the admissibility of expert testimony" (citation omitted).

Anderson v. Paulo, 74 Mass. App. Ct. 635, 641 (2009). See

Commonwealth v. Roberio, 428 Mass. 278, 280 (1998), S.C., 440

Mass. 245 (2003) (psychologist testified to reasonable degree of

scientific certainty that defendant suffered from three mental

diseases or defects). "[C]are must be taken," however, "to see

that the incantation does not become a semantic trap and the 34

failure to voice it is not used as a basis for exclusion"

(citation omitted). Anderson, supra.

The defendant contends that Pytou Heang, 458 Mass. at 848-

850, mandates that "subjective expert opinion" be presented to a

reasonable degree of certainty. We disagree. In that case, we

discussed a significant challenge to the admissibility of

forensic ballistics testimony in light of concerns "about both

the lack of a firm scientific basis for evaluating the

reliability of forensic ballistics evidence and the subjective

nature of forensic ballistics comparisons." Id. at 837. We

offered guidelines "to ensure that expert forensic ballistics

testimony appropriately assists the jury in finding the facts

but does not mislead by reaching beyond its scientific grasp."

Id. at 846-847. The guidelines included a requirement that the

expert's opinion be offered to a "reasonable degree of ballistic

certainty." Id. at 848. Noting that other jurisdictions had

come to different conclusions regarding the admissibility of

such evidence, we struck a "middle ground" by permitting the

introduction of an opinion that a match existed to a reasonable

degree of ballistics certainty. Id. at 850.

Accordingly, we discern no prejudicial error arising from

the judge's decision to deny the defendant's motion to strike

Walters's testimony. We also decline to extend our decision in

Pytou Heang to encompass all expert opinion testimony. 35

e. Prosecutor's closing argument. i. Transferred intent.

As discussed, the defendant argues that a new trial is required

because "no rational juror could have . . . found, beyond a

reasonable doubt, that the defendant deliberately premeditated

and specifically intended the death of the fetus." He also

argues that the prosecutor improperly raised the theory of

transferred intent in her closing argument, in an effort to

disguise the Commonwealth's lack of evidence as to the

defendant's intent.

The Commonwealth did not seek an instruction on transferred

intent, see generally Commonwealth v. Taylor, 463 Mass. 857, 863

(2012), with respect to the charge for killing the fetus.

Nonetheless, in her closing argument, the prosecutor suggested

that the jury infer that the defendant intended to kill the

fetus with deliberate premeditation based on the attack on

Galperina. She argued:

"And again, I don't want to tell you what premeditation is; the judge will instruct[] you on it. But I'd suggest to you that from the evidence that you heard, the Commonwealth has proven premeditation. As it relates to [Galperina] and her child, the intent that the judge will instruct you about is whatever intent you find is the intent that can be transferred to [Galperina's] child."

Because the defendant did not object to these statements, we

review to determine whether any error created a substantial

likelihood of a miscarriage of justice. See Commonwealth v.

Wright, 411 Mass. 678, 681 (1992), S.C., 469 Mass. 447 (2014). 36

We analyze the prosecutor's statement "in light of the

entire argument, as well as in light of the judge's instruction

to the jury and the evidence at trial" (quotation and citation

omitted). Commonwealth v. Raposa, 440 Mass. 684, 694 (2004).

The single passing reference to transferred intent consisted of

one line in a closing argument that occupied twenty-six pages of

transcript. The judge instructed the jury, before closing

arguments were presented, that "the lawyers will, at some point

in time, in order to structure their closing, inevitably be

referencing the law. I will instruct you on the law. You must

accept the law as I instruct you, whether you agree with that

law or not."

In his final charge, the judge instructed that it was his

responsibility to "teach [the jurors] the law that applies to

the case." He also explained that the Commonwealth was required

to prove, beyond a reasonable doubt, that the defendant

deliberately premeditated the deaths of both Galperina and the

fetus. The judge emphasized, "There are two separate

indictments. One indictment alleges the murder of [Galperina],

and one indictment alleges the murder of the fetus. You must

consider these indictments separately and the Commonwealth has

the burden of proving each element of the indictment or its

lesser included offenses beyond a reasonable doubt." See

Commonwealth v. Williams, 450 Mass. 645, 651 (2008) (jury are 37

presumed to follow judge's instructions). Given the passing use

of the term "transferred intent," its vagueness in the context

of the closing argument as a whole, and the judge's instructions

about the nature of closing arguments, we discern no substantial

likelihood of a miscarriage of justice.

ii. Statement that mere words cannot establish reasonable

provocation. The defendant contends that the prosecutor

"wrongly" told the jury that mere words cannot furnish the

provocation necessary for manslaughter. In her closing, the

prosecutor stated that "mere words are not enough, so that when

[Galperina] says to [the defendant], 'It's not your baby,' the

Commonwealth would say to you, mere words are not enough." She

added that "[t]he court will instruct you on that, so I'm not

going to tell you what those words mean."

The defendant was not prejudiced by these statements. The

judge instructed that "[m]ere words, no matter how insulting or

abusive, standing alone, do not constitute reasonable

provocation." See Model Jury Instructions on Homicide, supra

at 77. He explained: "[T]he existence of sufficient

provocation is not foreclosed because a defendant learns of a

fact from a statement rather than from personal observation. If

the information conveyed is of the nature to cause a reasonable

person to lose his self-control and did actually cause [the

defendant] to do so, then a statement is sufficient." See Model 38

Jury Instructions on Homicide, supra. We presume that the jury

followed the judge's instructions. See Commonwealth v. Bins,

465 Mass. 348, 367-368 (2013) (possible confusion from

prosecutor's misstatement of law was remedied by judge's final

charge).

f. Instruction on viability. In accordance with

Commonwealth v. Crawford, 430 Mass. 683, 691 (2000), the judge

instructed the jury that they were required to determine whether

the fetus was viable as part of their determination whether the

fetus had been murdered. The judge explained that "[a] killing

is not murder unless a human being has been killed. A viable

fetus is a human being under the law of homicide. A fetus is

viable when there is a reasonable likelihood of the fetus's

sustained survival outside the womb, with or without artificial

support."

The defendant recognizes that this instruction "apparently

has the imprimatur of this [c]ourt." He argues, however, that

the instruction that this court accepted in Crawford is

constitutionally flawed, because the third sentence would allow

a jury to find that a fetus was a human being if there were

merely a "reasonable likelihood" of sustained survival outside

the womb. In the defendant's view, the instruction "dilute[s]"

the Commonwealth's burden to prove beyond a reasonable doubt

that the fetus was viable. 39

Although the defendant did not object to the judge's

instruction at trial, he argues that it resulted in structural

error requiring reversal without a showing of actual harm.

"[T]here is a very limited class of cases presenting structural

errors that require automatic reversal absent waiver. Such

errors include the denial of counsel or the right to public

trial, the omission of an instruction on the standard of beyond

a reasonable doubt, racial discrimination in the selection of a

jury, or trial before a biased judge. These errors contain a

defect affecting the framework within which the trial proceeds,

rather than simply an error in the trial process itself"

(quotations and citations omitted). Commonwealth v. Francis,

485 Mass. 86, 99-100 (2020), cert. denied, 141 S. Ct. 2762

(2021). An error in defining an element of the crime, as the

defendant alleges in this case, is not among the very limited

class of structural errors requiring automatic reversal. See

Commonwealth v. McCray, 93 Mass. App. Ct. 835, 845 (2018)

(omission of element of crime from judge's charge did not

constitute structural error and was subject to harmless error

analysis). See also Neder v. United States, 527 U.S. 1, 8

(1999) ("jury instruction that omits an element of the

offense . . . differs markedly from the constitutional

violations we have found to defy harmless-error review"). We

therefore review the defendant's argument for a substantial 40

likelihood of a miscarriage of justice. See Wright, 411 Mass.

at 681.

Because Galperina was approximately one week away from her

delivery date, and the fetus was full term, there was no

substantial likelihood of a miscarriage of justice in the

purported diminution of the Commonwealth's burden to prove that

the fetus was viable.5 Given the facts of this case, and as the

language used in Crawford is no longer included in the Model

Jury Instructions on Homicide, there is no need to consider the

question whether the "reasonable likelihood" portion of the

Crawford instruction on viability relates to a preliminary

question of fact that need not be proved beyond a reasonable

doubt.

g. Discharge of deliberating juror. On the second full

day of deliberations, the judge received a note from the

foreperson reading, "We are concerned that one juror is not able

5 The defendant also contends that the judge, sua sponte, should have provided the jury with an involuntary manslaughter instruction, and that the failure to do so created a substantial likelihood of a miscarriage of justice. The instruction, he argues, was based on the "entirely plausible -- indeed likely -- [proposition] that [he] was not even thinking of the fetus when he stabbed Galperina." We conclude that the judge was not required to instruct on this lesser included offense where no rational view of the evidence established that the defendant "was not even thinking about the fetus." This theory would have been farfetched given the defendant's position at trial that he "lost it" in light of evidence introduced at trial centered around Galperina's pregnancy and the defendant's expected relationship with his unborn son named "David." 41

to productively contribute to deliberations." The judge

questioned the foreperson with the caveat that the foreperson

not reveal "anything about [the jury's] deliberations." The

foreperson reported that juror no. 12 "[s]everal times . . .

refused to participate" in deliberations and seemed mentally

unstable. The foreperson also stated that this was "not related

to the case."

Where reliable information comes to a judge suggesting a

lack of impartiality, bias, extraneous influence, or inability

to deliberate on the part of one of the jurors, a judge should

conduct a voir dire of the juror. See, e.g., Commonwealth v.

Robinson, 482 Mass. 741, 748 (2019) (possible extraneous

influence and prejudice); Commonwealth v. Colon, 482 Mass. 162,

182-183 (2019) (question of lack of impartiality due to racial

or ethnic bias); Commonwealth v. Villalobos, 478 Mass. 1007,

1007-1009 (2017) (possibly inattentive or sleeping juror);

Commonwealth v. McGhee, 470 Mass. 638, 643-646 (2015) (same).

Here, the judge determined, based on the note, that he had

enough information to inquire of juror no. 12 due to her alleged

refusal to deliberate. The judge began the voir dire by

informing the juror, "[W]hen you answer the questions, as

difficult as it is, I can't have you tell me anything about the

content about the deliberation . . . . In other words, don't

talk to me about anything that you have talked about with your 42

fellow jurors during jury deliberations." The juror responded,

"I understand what the constraint is." She explained that it

had been a "difficult day" and that there were "a lot of

emotions around," but that she had been able to participate in

the discussions. The judge invited both sides to suggest

further questions, and they each indicated that they were

satisfied with the inquiry. The judge ruled that, at that

point, he did not have adequate grounds to discharge the

deliberating juror. Defense counsel then noted that he was

concerned that juror no. 12 "basically grabbed a point of view

and [was] sticking to it" and had "not mentally even explored

her position or anyone else's." Counsel added that the

defendant was "content to have her removed."

The judge decided to ask juror no. 12 additional questions

about her ability to deliberate. She answered that she could

participate fully in deliberations. She indicated that she felt

"singled out" because she had "a difference of opinion in

weighing of evidence." Based on his observations of the juror,

the judge made clear that the juror's angry and unstable

demeanor would not be apparent from the trial transcripts.

Defense counsel agreed; he commented that juror no. 12 was

"immediately strident" and "angry" and appeared to be incapable

of following the judge's instruction to keep an open mind. 43

Counsel also asserted that the voir dire hearings had made juror

no. 12 "more damaged."

The judge indicated that he would consider an agreement to

discharge the juror. He added, "If there was an objection from

either party, . . . I probably wouldn't excuse [juror no. 12]."

Defense counsel stated that juror no. 12 should be discharged

and that he would object if the juror were to remain on the

jury. The judge then conducted a colloquy with the defendant.

The defendant said that he had had an adequate opportunity to

consult with counsel on the issue, and that he was acting on the

advice of counsel and agreed to defer to counsel's judgment.

The judge discharged juror no. 12.

The defendant now argues that it was error to discharge the

deliberating juror without following the requirements set forth

in Commonwealth v. Connor, 392 Mass. 838, 843-846 (1984). In

particular, the defendant points out, the juror was not informed

that she could not be discharged unless she had a personal

problem unrelated to her relationship with other jurors or their

views of the case. The defendant maintains that this error

created a substantial likelihood of a miscarriage of justice.

"The discharge of a deliberating juror is a sensitive

undertaking and is fraught with potential for error. It is to

be done only in special circumstances, and with special

precautions. Great care must be taken to ensure that a lone 44

dissenting juror is not permitted to evade his

responsibilities." Connor, 392 Mass. at 843. A judge is

required to hold a hearing "to determine whether there is good

cause to discharge a juror." Id. at 844. "At the hearing, the

issues of the case and the juror's relationship to his [or her]

fellow jurors are not to be discussed. . . . If the 'problem'

juror is questioned, the judge should preliminarily inform [the

juror] that [the juror] cannot be discharged unless [the juror]

has a personal problem, unrelated to his [or her] relationship

to his [or her] fellow jurors or his [or her] views on the

case." Id. at 845.

We agree with the defendant's argument that the judge

failed strictly to adhere to our holding in Connor, 392 Mass. at

843-846. The judge took "utmost caution . . . to avoid invading

the province of the jury," see id. at 844, by instructing juror

no. 12 not to discuss the content of the jury's deliberations.

He did not, however, preliminarily notify juror no. 12 that she

could not "be discharged unless [she] has a personal problem,

unrelated to [her] relationship to [other] jurors or [her] views

on the case." Id. at 845. See Commonwealth v. Williams, 486

Mass. 646, 656 (2021).

Having determined that the judge did not provide juror

no. 12 an adequate preliminary warning, we consider whether this

error created a substantial likelihood of a miscarriage of 45

justice. "General Laws c. 234A, § 74, provides that any

'irregularity' with respect to discharging or managing jurors

will not lead to vacatur unless the error is preserved by

objection and the 'objecting party has been specially injured or

prejudiced thereby.'" Williams, 486 Mass. at 657. See

Swafford, 441 Mass. at 336 ("While we have established

guidelines that trial judges must follow when discharging a

deliberating juror," verdict is not set aside unless objecting

party is prejudiced); Commonwealth v. Garrey, 436 Mass. 422, 431

(2002) (verdict shall not be set aside based on irregularity in

discharging deliberating juror absent objection and prejudice).

Here, defense counsel requested the discharge of juror

no. 12 and objected to her remaining on the jury. The defendant

has not pointed to any prejudice, however, from the assented-to

discharge of juror no. 12 beyond speculation that "she was a

dissenting or hold-out juror, leaning towards a manslaughter

verdict." See Commonwealth v. Tiscione, 482 Mass. 485, 493

(2019) (discharge of juror had impact on case where jury

appeared deadlocked). We therefore conclude that there was no

substantial likelihood of a miscarriage of justice.

h. Relief pursuant to G. L. c. 278, § 33E. We have

carefully reviewed the entire record, pursuant to our duty under

G. L. c. 278, § 33E, and discern no reason to order a new trial

or to reduce the degree of guilt. 46

Judgments affirmed. CYPHER, J. (concurring). I concur with the court's opinion

completely. I write separately to call attention to the fact

that women in the United States are more likely to be killed by

homicide during pregnancy or soon after childbirth than to die

from the three leading obstetric causes of maternal mortality

(hypertensive disorders, hemorrhage, or sepsis). Lawn & Koenen,

Homicide Is a Leading Cause of Death for Pregnant Women in US,

BMJ 2022;379:o2499 (Oct. 19, 2022). "Homicide during pregnancy

or within [forty-two] days of the end of pregnancy exceeded all

the leading causes of maternal mortality by more than twofold."

Wallace, Gillispie-Bell, Cruz, Davis, & Vilda, Homicide During

Pregnancy and the Postpartum Period in the United States, 2018-

2019, Obstetrics & Gynecology, vol. 138, no. 5, Nov. 1, 2021, at

762-769, https://www.ncbi.nlm.nih.gov/pmc/

articles/PMC9134264 [https://perma.cc/D7Q4-YZV2].

It is important to emphasize that the brutal facts of this

case are not an anomaly. The disconcerting frequency of lethal

violence against pregnant women warrants concomitant response

from our justice system. This court's acknowledgement that oral

revelations, on their own, cannot induce a reasonable person to

kill their pregnant partner is a laudable first step. See ante

at . I would take it one step further and reject the

principle that discovery of infidelity, whether oral or through

personal observation, can amount to adequate provocation to kill 2

a partner, standing alone. Compare Commonwealth v. Steeves, 490

Mass. 270, 292 n.12 (2022) (expressing "serious doubt about the

ongoing viability of [the] legal principle [that sudden

revelation of infidelity may be adequate provocation]"),

Commonwealth v. Paige, 488 Mass. 677, 686-687 (2021) (Cypher,

J., concurring) (allowing discovery of infidelity as adequate

provocation "implies that the victim, by committing adultery, is

partly to blame for the defendant's violence . . . . Where the

law treats homicide as a reasonable reaction to infidelity, it

condones femicide"), and Commonwealth v. Richards, 485 Mass.

896, 922-923 (2020) (Cypher, J., concurring) ("it is time to

retire the legal principle that spousal infidelity, even if it

is a sudden discovery, entitles a defendant to an instruction on

reasonable provocation for murder"), with Commonwealth v.

LeClair, 429 Mass. 313, 317 (1999) ("A sudden oral revelation of

infidelity may be sufficient provocation to reduce murder to

manslaughter").