Commonwealth v. Vasquez

• Docket Number: 20-P-1195
• Decision Date: 29 November 2023
• Parties: COMMONWEALTH v. PEDRO VASQUEZ.[1]
• Court: Appeals Court of Massachusetts

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COMMONWEALTH
v.
PEDRO VASQUEZ.^[1]

No. 20-P-1195

Appeals Court of Massachusetts

November 29, 2023

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).

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

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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.

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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

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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

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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...