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SJC-12199

                  COMMONWEALTH   vs.    CLYDE HOWARD.



       Middlesex.       December 8, 2017. - March 5, 2018.

      Present:    Gants, C.J., Gaziano, Lowy, & Cypher, JJ.


Homicide. Practice, Criminal, Instructions to jury, Lesser
     included offense, Capital case, Jury and jurors. Jury and
     Jurors. Evidence, Prior misconduct.



     Indictment found and returned in the Superior Court
Department on March 19, 2009.

     Following review by this court, 469 Mass. 721 (2014), the
case was tried before Brian A. Davis, J.


     Sharon Dehmand for the defendant.
     Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.


    GAZIANO, J.     On January 28, 2009, a heated argument between

the defendant and a coworker, Maurice Ricketts (victim),

escalated into a fatal shooting.       At trial, there was no dispute

that the defendant had shot the victim; the issue before the
                                                                       2


jury was the defendant's state of mind and whether the shooting

had been in response to some form of reasonable provocation.

     A Superior Court jury convicted the defendant of murder in

the first degree on the theory of deliberate premeditation.1      In

this direct appeal from his conviction, the defendant challenges

the judge's decision not to instruct the jury on the lesser

included offense of voluntary manslaughter based on sudden

combat; the adequacy of the instructions on reasonable

provocation and lesser included offenses; the dismissal of an

empanelled juror shortly before deliberations began; and the

judge's decision to allow the introduction of prior bad act

evidence.2   The defendant also asks this court to exercise its

extraordinary authority under G. L. c. 278, § 33E, and reduce

the verdict to murder in the second degree or manslaughter.     For

the reasons that follow, we affirm the defendant's conviction

and, after a thorough review of the entire trial record, decline

to allow relief under G. L. c. 278, § 33E.



     1
       This was the defendant's second trial. In 2014, we
vacated the defendant's conviction of murder in the first degree
because of the erroneous admission of a portion of his statement
to police after he had invoked his right to remain silent. See
Commonwealth v. Howard, 469 Mass. 721, 723 (2014).
     2
       At his first trial, the defendant also was convicted of
possession of a firearm without a license, possession of
ammunition without a firearms identification card, and
discharging a weapon within 500 feet of a building. Howard, 469
Mass. at 722 n.1. Those convictions are not before us.
                                                                      3


     1.     Facts.   We recite the facts the jury could have found,

reserving other facts for our discussion of specific issues.       In

January, 2009, the defendant and the victim were coworkers at a

pool supply distributor.      The defendant, a janitor and handyman,

had been employed there for over eleven years.      In 2007, the

distributor hired the victim to work as an "order puller"; this

position involved working in the warehouse, assembling products

to fill customer orders.

     Over the course of the victim's employment, the defendant,

who was sixty-five years old, and the victim, who was thirty-

three, had been involved in a number of workplace altercations.3

Approximately three months before the shooting, the defendant

and the victim engaged in an altercation over the use of a

forklift.    The victim had been using a forklift inside the

warehouse, and stopped using it momentarily.      Seeing no one on

the forklift, the defendant took it to use for one of his own

tasks.    The victim returned to the warehouse, saw the defendant

operating the forklift, became enraged, and physically forced

the defendant off the forklift.      The defendant described it as

the victim removing him from the forklift by grabbing him around

the neck.    Later that day, the defendant intentionally backed

into the victim's automobile while it was parked in the

     3
       The defendant stood five feet, eight inches tall and
weighed 180 to 190 pounds. The victim was six feet, one inch
tall and weighed approximately 230 pounds.
                                                                    4


employees' lot.   As a result of these two incidents, a manager

called both the defendant and the victim to his office and

informed them that if there were any further incidents, they

would be discharged.

     On January 28, 2009, the defendant reported to work at

9 A.M., and began his ordinary routine.    A few minutes after

10 A.M., the defendant walked through the warehouse carrying a

trash bag, headed toward a Dumpster located in a fenced-in yard.

A coworker, Michael Najarian, Jr., saw the defendant walking

past and engaged in a brief, casual conversation with him.

Najarian later saw the defendant return to the warehouse from

the yard.   As he was heading to the front pedestrian entrance of

the building, the defendant walked past the victim, who was

assembling an order near the front door.    The defendant stopped

and turned around.   Najarian heard a "rather loud explosion of

yelling."   Najarian looked up and saw the defendant and the

victim standing face to face, no more than three or four feet

apart, screaming at each other.   Najarian was unable to

understand what they were saying, but headed towards them to

break up the argument, so that neither would get in trouble with

management.4


     4
       A portion of the confrontation was recorded by a video
surveillance camera in the warehouse. The events visible on the
recording are consistent with Najarian's testimony. The footage
shows the front of the warehouse from the inside, with a larger,
                                                                   5


    As Najarian approached from behind the victim, he saw the

victim "reaching toward his right side, almost towards his

belt."   The victim then suddenly turned around and ran away from

the defendant toward the back door of the warehouse and through

the door to the back yard.   With the victim no longer

obstructing his view, Najarian was able to see that the

defendant's "arm [was] raised with a gun [in] his hand at

roughly a [forty-five]-degree angle, pointing towards the

ground."   The defendant fired a shot in the direction of the

victim, and ran after him through the rear door of the warehouse

into the fenced-in yard.

    Najarian ran across the street to the office in order to

alert other employees and telephone 911.   The manager and the

assistant manager immediately went to the warehouse building.

As they approached the building, they heard two gunshots coming

from the rear, and ran along the outside of the building toward

the fenced-in yard.   Peering through a gap in the fence, they


closed garage door and the smaller, pedestrian entrance. The
defendant is seen entering the warehouse through the pedestrian
door carrying a bag of trash. Someone who is at some points
visible on camera is apparently driving a forklift and placing
pallets of buckets of pool supplies near the door. A few
minutes later, the defendant reappears in view, without the
trash bag. He opens the pedestrian door and heads through the
doorway, and then turns around and takes a step towards someone
(the victim) who is approaching him at a brisk pace. They face
each other from a few feet apart for at most a few seconds
before the defendant pulls something from a pocket and extends
his arm, as the other man turns and runs toward the back of the
warehouse, out of the camera's view.
                                                                     6


saw the defendant standing next to a Dumpster with his arm

extended, holding something in his hand.     He fired two shots at

a downward angle; both the manager and the assistant manager

heard groaning sounds coming from behind the Dumpster.     After

the second shot, the manager heard the muffled voice of the

defendant saying "something to the extent, like, 'I got you' or

'I finally got you.'"    As the manager, who was unable to see the

victim, was yelling to the defendant asking what he was doing,

the defendant headed back toward the warehouse door, paused,

turned around, walked back to the Dumpster, raised his arm, and

fired another shot.

    The manager and the assistant manager ran around the

building to the front door of the warehouse.     They arrived just

as the defendant was leaving.    The defendant pushed past them,

saying, "I gotta get out of here.    The guy, the freaking guy,

came at me with a hammer."     The defendant ran toward his white

van and drove off at a high rate of speed.

     A Cambridge police officer and emergency medical

technicians found the victim wedged between the Dumpster and a

stack of pallets.     He had two gunshot wounds to the head, and

died upon arrival at a hospital.    One of the gunshots entered

the left side of the victim's face without damaging his brain

and was considered nonfatal.    The gunshot that produced the
                                                                    7


second, fatal wound was fired from close range (within eighteen

inches) into the back of the victim's head.

    Later that day, at 4 P.M., a Boston police officer, alerted

by a "be on the lookout" broadcast, spotted the defendant's

white van parked near an intersection in a Boston neighborhood.

The defendant was asleep in the driver's seat with a cellular

telephone pressed to his ear.   The officer removed the

defendant, who was intoxicated, from the van.    When asked if he

was carrying a weapon, the defendant replied, "No, I threw it in

the Charles River."   At a Boston police station, the defendant

made a series of unsolicited statements about the shooting,

including the comment, "I'm not a bad guy.    The guy was always

fucking with me, you know, treating me like a woman, slapping

me, you know.   One time he told me to pull out my knife, he'll

knock me the fuck out."   Because of the defendant's obvious

intoxication, he was not interviewed that night.

    The next morning, a Cambridge detective and a State police

trooper interviewed the defendant.   The defendant told the

police that he was afraid of the victim, whom he described as a

"big guy" and an ex-convict who had served a lengthy prison

sentence.   The defendant reported that the victim frequently

called him a "faggot" and would "stare [him] down."    Recounting

the forklift incident, the defendant told investigators that the

victim "jacked [him] up" and threatened to "knock [him] out."
                                                                    8


The defendant said that, for the previous six months, he had

been carrying a gun in his jacket pocket because the victim

"jacked [him] up that time, and [he] was running scared."

     On the morning of the shooting, the victim had approached

him "in a threatening manner, but in a subtle way" with a

sledgehammer.   After that incident, the defendant encountered

the victim while passing through the warehouse, they "had

words," and he "just had enough."    "We made eye contact because

I just got sick and tired of turning away and running like -- I

just had enough. . . .    He said, 'Why you keep staring at me?'

And I said, 'No.     You are staring at me.   You're staring me

down' . . . .   And that's when all hell break loose, and that's

the end of everything that happened there."      According to the

defendant, he told the victim to stop, and the victim paused,

but then kept coming toward him.    The defendant, who was in a

"daze," did not see the victim's hands and did not see if he was

holding anything.5

     At trial, the defendant presented expert testimony from a

forensic psychologist, Dr. Charles Ewing.     Ewing diagnosed the

defendant with posttraumatic stress disorder and opined that, as

a result, the defendant was in fear for his life at the time

     5
      The defendant and the victim routinely carried box cutter
knives in their pockets. This was a common practice of
employees at the company, who used the knives to cut open
products strapped to pallets. At the hospital, a police officer
recovered a box cutter knife from the victim's clothing.
                                                                     9


that he fired the first shot (that missed) toward the victim.

Ewing testified that the absence of physical contact did not

matter; the victim's hostile approach toward the defendant

caused him to fear imminent bodily harm.    After the first shot,

the defendant went into a dissociative or "trance-like" state,

and lacked the capacity to "think or reason clearly."        In

rebuttal, the Commonwealth called Dr. Alison Fife, a forensic

psychiatrist, who testified that the defendant was not suffering

from any mental illness on the day of the shooting.

    The jury convicted the defendant of murder in the first

degree on the theory of deliberate premeditation.

    2.    Discussion.   a.   Instruction on sudden combat.     The

defendant argues that a new trial is required because the judge

denied his motion that the jury be instructed on the lesser

included offense of voluntary manslaughter based on sudden

combat.   The defendant objected when the instruction was not

given.    We therefore review the judge's decision for prejudicial

error.    See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

    A manslaughter instruction is required if the evidence,

considered in a light most favorable to the defendant, would

permit a verdict of manslaughter rather than murder.     See

Commonwealth v. Nelson, 468 Mass. 1, 13 (2014); Commonwealth v.

Colon, 449 Mass. 207, 220, cert. denied, 552 U.S. 1079 (2007).

Manslaughter is a common-law crime that is defined in general
                                                                   10


terms as an unlawful killing without malice.    Commonwealth v.

Webster, 5 Cush. 295, 308 (1850).    Voluntary manslaughter is a

killing committed in "a sudden transport of heat of passion or

heat of blood, upon reasonable provocation and without malice,

or upon sudden combat."   Commonwealth v. Burgess, 450 Mass. 422,

438 (2008), quoting Commonwealth v. Campbell, 352 Mass. 387, 397

(1967).6   See Commonwealth v. Smith, 460 Mass. 318, 325 (2011)

(reasonable provocation must meet subjective and objective

standards).

     Over the Commonwealth's objection, and "in an abundance of

caution," the judge instructed the jury on voluntary

manslaughter based on reasonable provocation.    The defendant

contends that, because the mitigating circumstances of

reasonable provocation and sudden combat are indistinguishable,

it is error to instruct on reasonable provocation and not to

provide an instruction on sudden combat.

     The mitigating circumstances of reasonable provocation and

sudden combat are so closely related that "much of our case law

treats them indistinguishably."     Commonwealth v. Camacho, 472

Mass. 587, 601 n.19 (2015).   There are differences, however,

between reasonable provocation and sudden combat.    Reasonable

provocation encompasses a wider range of circumstances likely to

     6
       A conviction of voluntary manslaughter also may be based
on the excessive use of force in self-defense. Commonwealth v.
Espada, 450 Mass. 687, 694 (2008).
                                                                     11


cause an individual to lose self-control in the heat of passion

than does sudden combat.     See Commonwealth v. Schnopps, 383

Mass. 178, 180-182 (1981) (reasonable provocation instruction

warranted by victim's admission of adultery).     "[S]udden combat

is among those circumstances constituting reasonable

provocation."    Camacho, supra, quoting Commonwealth v. Walczak,

463 Mass. 808, 820 (2012) (Lenk, J., concurring).     See

Commonwealth v. Peters, 372 Mass. 319, 324 (1977) ("sudden

combat is one of the events which may provoke the perturbation

of mind that can end in a killing without malice").     Thus, it is

more accurate to view sudden combat as a form of reasonable

provocation.     See Walczak, supra (Lenk, J., concurring).

    Our decision in Webster, 5 Cush. at 308, provides guidance

as to the type of altercation that may constitute sudden combat.

"When two meet, not intending to quarrel, and angry words

suddenly arise, and a conflict springs up in which blows are

given on both sides, without much regard to who is the

assailant, it is a mutual combat.     And if no unfair advantage is

taken in the outset, and the occasion is not sought for the

purpose of gratifying malice, and one seizes a weapon and

strikes a deadly blow, it is regarded as homicide in heat of

blood . . . ."    Id.   Our jurisprudence has relied upon this

definition for more than 150 years.     See Commonwealth v.

Rodriquez, 461 Mass. 100, 107 (2011); Commonwealth v. Clemente,
                                                                  12


452 Mass. 295, 320-321 (2008), cert. denied, 555 U.S. 1181

(2009).

     In Commonwealth v. Espada, 450 Mass. 687, 697 (2008),

quoting Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 822

(2006), we clarified that, "for sudden combat to be the basis of

a voluntary manslaughter instruction the 'victim . . . must

attack the defendant or at least strike a blow against the

defendant.'"   See Commonwealth v. Gonzalez, 465 Mass. 672, 685-

686 (2013) (no evidence of sudden combat where defendant was

unable to demonstrate overt act by victim amounting to attack or

exchange of blows); Rodriquez, 461 Mass. at 107 (no sudden

combat where victim walked "hastily" toward defendant, without

any accompanying physical gestures indicating intended

violence); Commonwealth v. Brum, 441 Mass. 199, 206 (2004) (no

sudden combat where victim, who was armed with hammer, did not

actually strike defendant or his brother or attempt to do so).7


     7
       Depending upon the particular facts presented, physical
contact between a defendant and a victim does not necessarily
support an instruction on reasonable provocation or sudden
combat. See Commonwealth v. Curtis, 417 Mass. 619, 629 (1994);
Commonwealth v. Walden, 380 Mass. 724, 727 (1980). "There must
be evidence that would warrant a reasonable doubt that something
happened which would have been likely to produce in an ordinary
person such a state of passion, anger, fear, fright, or nervous
excitement as would eclipse his capacity for reflection or
restraint, and that what happened actually did produce such a
state of mind in the defendant." Walden, supra at 728. See
Commonwealth v. Ruiz, 442 Mass. 826, 839 (2004) (no sudden
combat where victim slapped and jumped on defendant because
"conduct presented no threat of serious harm to him");
                                                                      13


       Given the absence of evidence of combat in this case, the

judge properly denied the defendant's request for an instruction

on sudden combat.     Najarian, the sole eyewitness to the

altercation, observed the defendant and the victim yelling at

each other while they stood three or four feet apart.        In the

defendant's version of the encounter, he and the victim made eye

contact inside the warehouse, and the victim advanced toward

him.    They began yelling at each other, the defendant felt

threatened, and he decided that he had had enough.     "That's when

all hell broke loose."     The defendant told police that the

victim had not touched him at the point when the defendant

pulled his handgun out of his pocket.     The surveillance footage

is consistent with these statements.

       b.   Instruction on reasonable provocation.   The defendant

asks this court to reverse his conviction because the judge's

instruction on reasonable provocation included a statement that

threatening gestures are not sufficient to constitute reasonable

provocation.    In his brief, the defendant argues that the

victim's movement "towards his pocket," where the victim



Commonwealth v. Brum, 441 Mass. 199, 206 n.12 (2004) ("Even if a
victim brandishes a weapon or attacks a defendant, it does not
necessarily create sudden combat or reasonable provocation");
Commonwealth v. Rembiszewski, 363 Mass. 311, 321 (1973) ("[I]t
is an extravagant suggestion that scratches [inflicted by the
victim on the defendant's face] could serve as provocation for a
malice-free but ferocious attack by the defendant with a deadly
instrument").
                                                                  14


concealed a box cutter knife, "started a chain of events which

led to the shooting."   The defendant contends that the judge's

erroneous instruction negated his only defense and eliminated

any possibility that the jury would find him guilty of

manslaughter.   Because the defendant did not object to the

judge's instruction on reasonable provocation, we review his

claim to determine whether there was a substantial likelihood of

a miscarriage of justice.   Commonwealth v. Serino, 436 Mass.

408, 419 (2002).8

     The judge's instruction on reasonable provocation provided:

          "When we say heat of passion, that includes the state
     of mind of passion, anger, fear, fright and nervous
     excitement. Reasonable provocation is provocation by the
     person killed that would likely to produce such a state of
     passion, anger, fear, fright or nervous excitement in a
     reasonable person as would overwhelm his capacity for
     reflection or restraint and actually did produce such a
     state of mind in the defendant.

          "So the reasonable provocation must be such that a
     reasonable person would have become incapable of reflection
     or restraint and would not have cooled off by the time of
     the killing, and that the defendant himself was so provoked
     and did not cool off at the time of the killing. In
     addition, there must be a causal connection between the
     provocation, the heat of passion and the killing. The
     killing must occur after the provocation and before there
     is sufficient time for the emotion to cool, and must be the
     result of the state of mind induced by the provocation

     8
       The Commonwealth argues that the evidence, viewed in a
light most favorable to the defendant, did not support an
instruction on reasonable provocation. See Commonwealth v.
Clemente, 452 Mass. 295, 321 (2008), cert. denied, 555 U.S. 1181
(2009). Having concluded that the judge's instructions were not
erroneous, we do not reach the issue whether the defendant was
entitled to such an instruction.
                                                                  15


    rather than by a preexisting intent to kill or grievous
    injure, or an intent to kill formed after the capacity for
    reflection or restraint has returned.

         "So now what constitutes reasonable provocation? Mere
    words or threatening gestures, no matter how insulting or
    abusive, do not by themselves constitute reasonable
    provocation. Physical contact, even a single blow, may
    amount to reasonable provocation. Whether the contact is
    sufficient will depend on whether a reasonable person under
    similar circumstances would have been provoked to act out
    of emotion rather than reasoned reflection."

         "The heat of passion also must be sudden. That is,
    the killing must have occurred before a reasonable person
    would have regained control of his emotions."

    As the defendant points out, the term "threating gestures"

is not included in our model jury instructions on homicide.     See

Model Jury Instructions on Homicide 66 (2013) ("Mere words, no

matter how insulting or abusive, do not by themselves constitute

reasonable provocation").   Although we have urged trial judges

to adhere to the model jury instructions, "judges are not

required to deliver their instructions in any particular form of

words."   Commonwealth v. Sinnott, 399 Mass. 863, 878 (1987).

    We have stated that threatening gestures, standing alone,

may not necessarily constitute reasonable provocation.   In

Commonwealth v. Jefferson, 416 Mass. 258, 263-264 (1993), and

Commonwealth v. Weaver, 395 Mass. 307, 312 (1985), we upheld the

use of an instruction on reasonable provocation, which provided

that "mere insulting words and threatening gestures, alone, with

nothing else do not constitute adequate provocation to reduce a
                                                                    16


killing from murder to manslaughter."   See Commonwealth v. Dyer,

460 Mass. 728, 747 (2011), cert. denied, 566 U.S. 1026 (2012)

(noting that instruction providing that "mere insulting words or

threatening gestures" were insufficient to establish type of

provocation necessary to reduce murder to manslaughter was

accurate); Commonwealth v. Niemic, 427 Mass. 718, 723 n.3 (1998)

(instruction that "[m]ere insulting words and threatening

gestures alone with nothing else do not constitute adequate

provocation to reduce a killing from murder to manslaughter" is

correct statement of law).

    We take this opportunity to note, however, that judges

should proceed with caution when deviating from our model jury

instructions on homicide and instructing the jury that

threatening gestures may not constitute provocation.

Ordinarily, words and accompanying gestures, even if insulting

or hostile, are not sufficient to provoke a reasonable person to

lose self-control in the heat of passion.     See Commonwealth v.

Vatcher, 438 Mass. 584, 588-589 (2003).     On the other hand, in

certain circumstances, words and gestures may combine to convey

information that would constitute adequate provocation and would

render an unlawful killing voluntary manslaughter.     See, e.g.,

Commonwealth v. Tu Trinh, 458 Mass. 776, 783 (2011) (court

examines whether evidence of actions, or actions combined with

words, were sufficient to trigger deadly response).
                                                                     17


       In Commonwealth v. Little, 431 Mass. 782, 786-787 (2000),

for example, we examined the victim's words and actions to

determine whether the defendant was entitled to an instruction

on provocation.    The evidence included that the victim had

approached the defendant, yelling, "I'll fuck you up," and had

continued to advance toward the defendant despite having been

warned that the defendant was armed.     Id. at 785.   The defendant

believed that the victim, who had been known to carry a handgun

in the past, was in possession of a gun.     Id. at 783-784.   The

defendant testified at trial that the victim "made a motion like

he was going for his hip" and the defendant believed the victim

had reached toward his back in order to draw his gun.      Id. at

785.    Based on this evidence, we held that the victim's "hostile

behavior" permitted the jury to find that the defendant "shot

his handgun in the heat of passion, provoked by the above

circumstances."    Id. at 786-787.   See Commonwealth v. Fortini,

68 Mass. App. Ct. 701, 702-703, 706 (2007) (instruction on

reasonable provocation warranted from evidence of unknown

assailant's intrusion onto defendant's porch in middle of night,

lunging at defendant, and reaching for defendant's shotgun).

       We conclude that, in light of the facts presented here, the

judge's reasonable provocation instruction was not erroneous

because none of the circumstances that would permit a

threatening gesture to rise to the level of provocation was
                                                                   18


present.   There was no evidence in the Commonwealth's case-in-

chief that the victim made a threatening gesture, and the

defendant did not introduce any evidence that he, in fact,

believed that the victim had been reaching for a knife.     See

Commonwealth v. Groome, 435 Mass. 201, 220 (2001) (there must be

evidence from which jury could determine that defendant was

provoked).   See also Camacho, 472 Mass. at 602.    Indeed, in his

interview with police, the defendant did not mention the

victim's gesture toward his belt, which his coworker described,

and did not express a belief that the victim had been reaching

for a knife or any other weapon in his pocket.     To the contrary,

the defendant said that he had not seen anything the victim did

with his hands, as the defendant had been in a "daze" or had

"tunnel vision," and that, after an exchange of words, "all hell

broke loose because [the defendant] just got sick and tired of

it."   Not only did the defendant indicate no fear of the victim,

he commented that, after he fired the first shot, the victim was

urging him on to continue shooting, which enraged the defendant.

       The defendant's description of the events to police, that

was played for the jury at trial, was as follows:

       The defendant: "You know, it's a funny thing you should
       say that because he was -- I couldn't understand. I know
       he might have been hit before once and he was still saying,
       'Come on, come on.' And I'm saying -- at that time -- now
       hindsight now I can look at that, but --"

       First interviewer:   "Yeah."
                                                             19



The defendant:   "See, that's what he meant -- I couldn't
understand --"

First interviewer:   "So the whole time he's egging you on?"

The defendant:   "Yeah, I couldn't understand that."

. . .

Second interviewer: "He's out back there, right, could he
have just gone like through the gate and get the hell out
of there or what the hell -- why is he still there? Could
he have left the property?"

First interviewer: "How come he didn't go out the side
door? Why didn't he run out there or how come he didn't go
out the side door that you went to the van?"

The defendant:   "Because I got in a stinking rage."

. . .

Second interviewer: "If he was such . . . in fear or
anything, how come he didn't try to go out the side door
that you said you left to go to your van? Why did he run
out back?"

The defendant:   "Because he would have to go through me."

First interviewer: "What about out back because -- is
there a gate out back that he could have just took off
from?"

The defendant:   "That gate was locked."

First interviewer: "Oh, was it? Was he reaching for
anything? Did he have a gun or anything on him that he was
--"

The defendant: "I had tunnel vision.    I wasn't seeing
anything like that. I was --"

First interviewer: "But he still said, hey, you know, come
on, come on, still egging you on, huh?"
                                                                   20


     The defendant:   "I couldn't understand that, and that made
     me --"

Accordingly, the defendant has not shown any error in the

judge's instruction on reasonable provocation.9

     c.   Instruction on lesser included offenses.   The defendant

also challenges the fact that the judge's charge did not include

a "soft transition" instruction on lesser included offenses.    He

argues that the lack of a "soft transition" instruction

necessarily resulted in the deliberations proceeding under an

"acquittal first" structure.   Thus, he argues, the jury were

precluded from considering the lesser included offense of

voluntary manslaughter unless and until they found the defendant

not guilty of murder in the first degree.   Because the defendant

did not object to this instruction at trial, we review any error

to determine whether it created a substantial likelihood of a

miscarriage of justice.   See Serino, 436 Mass. at 419.10




     9
       The defendant contends also that, in his closing argument,
the prosecutor misstated the law of reasonable provocation and
the evidence. This argument is unavailing. The prosecutor
properly referred to the objective component of provocation, and
argued reasonable inferences drawn from the facts.
     10
       The judge did not instruct the jury, in accordance with
our model jury instructions on homicide, that "[i]f you find the
defendant not guilty of murder in the first degree or murder in
the second degree, you shall consider whether the Commonwealth
has proved the defendant guilty beyond a reasonable doubt of the
lesser offense of voluntary manslaughter . . . ." Model Jury
Instructions on Homicide 36 (2013).
                                                                     21


    In an acquittal first (or "hard transition") jurisdiction,

the jury are required first to deliberate regarding the most

serious offense charged; they are precluded from considering a

lesser included offense "unless and until they unanimously find

the defendant not guilty of the greater charge."     Commonwealth

v. Figueroa, 468 Mass. 204, 224 (2014).     By contrast, juries in

a soft transition jurisdiction have "free rein to conduct their

deliberations as they see fit."     Id., quoting Commonwealth v.

Roth, 437 Mass. 777, 794 n.14 (2002).     The jury must be

permitted to consider a lesser included offense prior to

reaching a unanimous decision on the defendant's guilt or

innocence of the greater offense.    Figueroa, supra at 224-225.

Massachusetts is, as the defendant points out, a soft transition

jurisdiction.   Id.

    We discern no error in the judge's instructions as to

lesser included offenses.   Contrary to the defendant's claim,

the judge specifically instructed the jury to consider

manslaughter based on reasonable provocation prior to reaching a

decision on whether the defendant had committed murder in the

first degree.   In instructing the jury on the theories of murder

in the first degree by deliberate premeditation and by extreme

atrocity or cruelty, the judge explained that the Commonwealth

was required to prove beyond a reasonable doubt the absence of

mitigating circumstances.   He instructed,
                                                                  22


         "The law recognizes that in certain circumstances,
    which we refer to as mitigating circumstances, the crime is
    a lesser offense than it would have been in the absence of
    mitigating circumstances. Now a killing that would
    otherwise be murder in the first [or] second degree is
    reduced to the lesser offense of voluntary manslaughter if
    the defendant killed someone under mitigating
    circumstances."

The judge went on to inform the jury that "[i]n this case the

mitigating circumstance that you must consider is what is

referred to in the law as heat of passion on a reasonable

provocation."

    In addition, the judge began his instructions on voluntary

manslaughter by telling the jurors that, "[l]ike murder in the

second degree, voluntary manslaughter is a lesser-included

offense with the charge of murder in the first degree."     He then

recapped his prior instructions, explaining, "So to prove the

defendant guilty of murder in the first or second degree, the

Commonwealth is required to prove beyond a reasonable doubt that

there are no mitigating circumstances that reduce the

defendant's culpability.   A mitigating circumstance is a

circumstance that reduces the seriousness of the offense in the

eyes of the law."

    Viewed in their entirety, the instructions correctly

informed the jury of their obligation to consider evidence of

reasonable provocation before convicting the defendant of murder

in the first degree.
                                                                  23


    d.   Dismissal of empanelled juror.   The defendant

challenges the judge's decision to dismiss an empanelled juror

toward the end of the trial, because of a three-page note that

she had sent the judge after the defendant's expert testified.

    During empanelment, a juror reported that she had been the

victim of a sexual assault.   After receiving input from both

counsel, the judge asked the juror a follow-up question:

    Q.: "Was there anything about any treatment that you may
    have received, or support that you may have received, or
    anything of that nature that would affect in any way your
    ability to listen to any psychiatrist, psychological
    testimony in this case, with an open mind?"

    A.: "I don't think so. I mean, it wasn't an actual rape.
    It was like an assault. So it wasn't -- I mean, it was not
    a great experience. But . . . ."

The judge found the juror indifferent, and she was seated after

neither party exercised a peremptory challenge.

    On the day before closing arguments, the judge informed the

attorneys that he had just been handed a three-page note from

the juror.   In the note, the juror referenced the prior assault,

and stated, "[I]t made sense to me what [Ewing] was saying about

a dissociative state, because to a smaller extent I guess I have

experienced that."   The juror indicated that she could relate to

the expert's description of the defendant being on edge and

"walking on egg shells."   The juror assured the judge that she

could "put all of that aside and just look at the evidence that

was presented, but I wanted to be forthright that this
                                                                    24


experience did make me think about my own experience and to

inquire if that disqualifies me from participating in

deliberations."    After a hearing, the judge dismissed the juror

over the defendant's objection.    The judge instructed the

remaining jurors that he had dismissed the juror for a reason

"entirely personal to that juror and [that] had nothing to do

whatsoever with the merits of this matter."

    A trial judge is vested with the discretion to discharge a

juror prior to deliberations "in the best interests of justice."

G. L. c. 234A, § 39.   See Commonwealth v. Stokes, 440 Mass. 741,

751 (2004); Commonwealth v. Rock, 429 Mass. 609, 613-614 (1999).

Here, the judge reasoned that the juror, after hearing testimony

from the defendant's expert witness, might have self-diagnosed

herself or had realized that she might have suffered from

dissociative and posttraumatic stress disorders as a result of

her own assault.

    Given the juror's disclosure that she had been influenced

by the defendant's expert's testimony, and had realized that she

might have experienced the same psychiatric symptoms as the

expert testified that the defendant had suffered, we conclude

that the judge acted well within his statutory authority to

excuse the nondeliberating juror in the interests of justice.

    e.   Prior bad act evidence.    The defendant argues that the

judge abused his discretion in allowing the prosecutor to
                                                                   25


introduce evidence that, at some time in the past, the defendant

had brought a gun to work.   A coworker, Shane Nixon, testified

on direct examination that, at some point before the victim's

employment, he observed the defendant "with something that

appeared to be a gun in the area of" the company's premises.      On

cross-examination, Nixon clarified that what he had seen had

been the handle of what appeared to be a handgun wrapped in a

dirty white rag in the defendant's vehicle.   Nixon acknowledged

that he had never seen the defendant carrying a gun on his

person.

    The judge allowed the Commonwealth to introduce this

evidence in order to impeach the defendant's statement that he

had started bringing a gun to work because he was afraid of the

victim.   The judge immediately instructed the jury that the

evidence was admissible "to the extent that you find it relevant

solely on the issue of whether the defendant acted intentionally

and not because of some mistake or accident or innocent reason,

or as to whether it shows a common plan or scheme or pattern of

conduct, or with respect to the defendant's state of mind,

motive, intent, opportunity, preparation, plan or knowledge,

with respect to the identity of the defendant as the perpetrator

of the crime charged."   In his final charge, the judge repeated

this instruction.
                                                                   26


    Evidence of a defendant's prior or subsequent bad acts is

not admissible to show "bad character or criminal propensity"

(citation omitted).   Commonwealth v. Lally, 473 Mass. 693, 712

(2016).   It generally is admissible for another purpose such as

to establish a defendant's "common scheme, pattern of operation,

absence of accident or mistake, identity, intent, or motive."

Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).     Evidence of

prior bad acts also may be introduced to rebut "the defendant's

contentions made in the course of trial" (quotations omitted).

Commonwealth v. Anestal, 463 Mass. 655, 665 (2012), quoting

Commonwealth v. Magraw, 426 Mass. 589, 595 (1998).    See Mass.

G. Evid. § 404(b)(2) (2017).   The Commonwealth is required to

demonstrate that the probative value of the evidence is not

outweighed by the risk of unfair prejudice to the defendant.

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014).    We review

questions of admissibility, probative value, and unfair

prejudice under an abuse of discretion standard.     Id. at 252.

    In his statement to police, the defendant said that he had

begun bringing a small handgun to work approximately six months

before the incident, because of his fear of the victim following

the incident with the forklift:   "Since he [the victim] jacked

me up that time, and I was running scared."   Evidence that Nixon

had seen the handle of a gun in the defendant's vehicle prior to

the victim's employment was admissible to rebut this claim.
                                                                  27


    Although the judge did not abuse his discretion in allowing

Nixon to testify about his observations of the defendant's

vehicle at some point before the victim began working at the

company, we agree with the defendant's argument that the

limiting instructions focused improperly on the defendant's

state of mind.   The judge should have instructed the jury in

accordance with the reason that he had allowed the evidence to

be admitted:   that it was relevant to rebut the defendant's

statement that he started bringing a gun to work because he was

afraid of the victim.

    Nonetheless, the error in the limiting instruction was

harmless.   See Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994) (error harmless if reviewing court is "sure that the

error did not influence the jury, or had but a slight effect").

The focus of the trial was on the defendant's state of mind at

the time of the shooting.     The testimony about a rag-wrapped

object that might have been in the defendant's vehicle, at some

point before the victim began working at the company, received

minimal attention at trial.    Commonwealth v. McGee, 467 Mass.

141, 158 (2014).   Nixon's testimony concerning the issue was

brief, and the prosecutor did not mention it in his closing

argument.   See Commonwealth v. Rutherford, 476 Mass. 639, 649

(2017).
                                                                 28


    f.   Review under G. L. c. 278, § 33E.   We have carefully

reviewed the entire record, pursuant to our duty under G. L.

c. 278, § 33E, and find no reason to set aside the verdict or

reduce the degree of guilt.

                                   Judgment affirmed.
