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, theref ore, 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 VA S QUEZ. 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 adequate ly 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 w e are

un persuaded 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 th e

1 As is our usual practice, we take the spelling of the defendant's name as it appears on the indictments

.2 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, the y split up, and the victim moved in with her brother. T he defendant , armed with a gun, came to the brother's house and threatened to kill the v ictim. T he couple nonetheless resumed t he i r relationship i n the months that followed , but split up again about two weeks before the murder. After this last breakup, the defendant call ed the victim repeatedly

. The victim's son overheard the defendant tell her on one call that, if she did not get back toget her 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 Jan uary 5, 2015, Springfield police officers responded to a report of shots fired

. T hey 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 p olice located a home security came ra nearby and recovered the recording from the homeowner

. Shortly into t he3 recording, the Jeep can be seen coming to a n abrupt stop across the street

. About four minutes later, the rear driver's side door open s , and a ma n and woman c an be heard arguing loudly in Spanish. The Commonwealth offered two witnesses for purposes of translating th e audio from Spanish to English , both o f whom testified that the woman can be heard saying , "Give me the keys, Pedro." At about five and one

- half minutes into the recording , t he ma n is seen getting out of the rear seat of the Jeep

. S imultaneously , a gunshot rings out . The man then r uns down the
street.
Four witnesses who were familiar with both the defendant and the victim identified them as the people speaking on the recording. T hree of the witnesses also identified the defendant from the video footage, based on his clothes , height an d 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 ; t he judge dismissed the m just before 4 P
. M
. S oon 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.4 T he argument did not end there , however

. With b oth the court officer and the prosecutor watch ing 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

. " Whi le 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 n ote , 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 prov o ke me and was trying to start a physical altercation, w hich 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 no w 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 deliberatio n s . . ., 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.5 his personal feelings out of it. However, this o ne 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 remindi ng 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 explaine d 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

. J uror

no. 4 reportedly responded, " I read you from day one. I knew what you were, and y ou're a piece of shit." This prompted juror

no. 2 to say, "Spoken like a true racist." When ju ror 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 repor ted that he had recently learne d that juror no. 2 had p rior interactions with the Hampden County District Attorney's O ffice "that ended negatively

. " The prosecutor request ed further inquiry into these interactions , which defense counsel opposed. The judge6 his ability to be fair and impartial. Juror no. 2 replied, "Absolutely not," and then, unprompted, provided further details about the dispute, stating a mong othe r 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

. " T he judge interrupted at this point and warned again not to reveal anything about the deliberations. Juror no. 2 apologized and confirm ed several times that he could be fair and impartial

. The judge next spoke to juror no. 4. After cautio ning him not to reveal anything about the deliberations , the judge asked him to explain what happened

. J uror no. 4 repli ed 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 stat ed that he "wanted no confrontation" and walked away

. When the judge asked whether he had spoken to any of the other jurors about the inciden t, juror no. 4 said he had no t
. At t he pr osecutor's request, the judge then ask ed 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 ask ing juror no. 2 if he could be fair and impartial to both parties

.7 The judge did not probe further

. Instead, the judge asked j uror

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 anot her juror, " Hey, big man! We need to have some wor ds," but she w itnessed 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 spoke n to the other juror s 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 d efense counsel observ ed 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 a ccurate
. " When t he judge indicated that he was "not inclined to intervene as to the internal workings of this group , " d efense counsel affirmed that he did not want the judge to inquire further of the foreperson

.8 The prosecutor then requested that both ju ror no. 2 and juror no. 4 be discharged, sta ting that there were "accusations of racism and threats of violence occurring in this jury." Defense counsel o bjected and suggested it would instead be appropriate for the judge to repeat his instructions about the conduct of deliberations. Agreeing with defense counsel 's
sugges tion , the judge brought the jury back to the courtroom and reminded them to approach their deliberations with respect for the ir 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 indica ted 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. P otential juror bias

. W hen 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). T he defendant argues that the inquiry here was in adequate because the judge did not probe into wh ether racial ly bias ed statements were made in the jury room and, if so, whether they infected the9 jury's deliberations. The Commonwealth concedes that there was

error. At the time of his inquiry, t he judge did not have the benefit of Ralph R ., 490 Mass. at 784, which clarifie s that , whe n 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 i n 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 explor ing the foreperson's report of "preconceived biases" ; juror no. 2's
repor t 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
t he substance of the case. W e agree that under Ralph R
. the judge should have delv ed further into these reports to determine whether racially bia sed statements were made during deliberations

. We do not agree, however, with t he defendant 's suggestion that the error automatically entitles him to a new trial. I n Ralph R
. , 490 Mass. at 786, the court rejected the contention10 that a judge's failure to investigate a claim of juror bias is a structural error not subject to waiver. As the court explai ned,

" [t] o presume prejudice in this context would ignore the distinction, one long recognized by [the] court , between properly preserve d 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

. T he 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 t he defendant request that the judge conduct a voir dire of the other jurors. Instead , the defendant st ated 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 determin ing whether the re wa s 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 tactical11 decision

. " Commonwealth v. A zar , 43 5 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. T he Commonwealth's case was strong. The victim was heard on the s ecurity 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 t hese 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 interacti on 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 a ltercation and the foreperson, who witnessed it . All confirmed that they could be fair and impartial. So w hile we conclude that the judge should have inquired further, the nature12 of the error was not such that we have serious doubt that the impartiality of the jur y was affected. In addition , and again unlike in Ralph R ., it appears that defense counsel made a tactical decision not to object, p erhaps 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 substanti al risk of a miscarr iage 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

. T he Commonwealth acknowledged at oral argument that these remedies remain available to the defendant

. 2. Failure to instruct on i nvoluntary 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 , 4 19 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. P agan , 471 Mass. 537, 546 , cert. denied, 577 U.S. 1013 (2015) , quoting Commonwealth v. Vizcarrondo , 427 Mass. 392, 396 (1998), S
. C
. , 431 Mass. 36013 (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 li ght most favorable to the defendant, did not support an instruction on involuntary manslaughter. The evidence was that the defendant shot the victim in th e 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 defendan t's appellate argument that he meant only to scare or intimidate the victim is unavailing. There was n o 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. 29 9 , 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 , 4 19 Mass. at 34 (where defense was alibi and no evidence was offered that victim's wounds were inflicted unintentionally, it would have14 been error for judge to give in voluntary manslaughter instruction)

. 3. Firearms conviction s . 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 offense s 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 prohibit ion against double jeopardy did not bar a retrial

. After the issuance of Guardado II , t he 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 t he convictions of unlawful possession of a firearm and unlawful possession of a loaded firearm , with t he Commonwealth remain ing 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 loaded15 firearm are vacated. The judgment of conviction of murder in the second degree is affirmed. So ordered

. By the Court (Woloh oj ian, Shin & Ditkoff, JJ. 4 ),

Clerk

Entered: November 29, 2023.

4 The panelists are listed in order of seniority.