Commonwealth v. Pedro Vasquez.

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

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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.

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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

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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.

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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.

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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

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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

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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

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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

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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

defendant.

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

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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

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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.

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