Commonwealth v. Ronchi

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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
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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).
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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
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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
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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.
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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.
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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).
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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
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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
provocation.
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").