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.
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, 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 
3

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.
4

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.
5

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 
6

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.
7

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.
8

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 
9

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 
10

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 
11

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 
12

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 
13

(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 
14

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
15

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.