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SJC-11615

                COMMONWEALTH   vs.   GEORGE PHILBROOK.



         Middlesex.    December 11, 2015. - July 28, 2016.

 Present:    Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines,
                                JJ.1


Homicide. Evidence, Prior violent conduct, State of mind,
     Intent. Practice, Criminal, Capital case, Argument by
     prosecutor, Mistrial, Jury and jurors, Conduct of juror.
     Jury and Jurors.



     Indictments found and returned in the Superior Court
Department on September 27, 2007.

     The cases were tried before Kathe M. Tuttman, J.


     Elizabeth Caddick for the defendant.
     Bethany Stevens, Assistant District Attorney, for the
Commonwealth.


     DUFFLY, J.   The defendant was convicted of murder in the

first degree on a theory of deliberate premeditation in the




     1
       Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
                                                                     2


shooting death of his former wife, Dorothy Philbrook.2   The

defendant and his former wife were divorced in 1975, but had

been living together for many years when, on August 17, 2007,

the defendant shot her five times on the street in front of

their house in Everett, in view of some of their neighbors.    The

defendant does not dispute that he was the shooter.   His defense

at trial was that he was not criminally responsible because the

prescription medications that he was taking exacerbated an

underlying brain disease, creating a mental disease or defect

that caused him to be unable to conform his actions to the law.3

     On appeal, the defendant contends that the judge abused her

discretion in allowing the admission of evidence of prior bad

acts shortly prior to and immediately following the killing.

The defendant also claims that the judge erred in denying his

motion for a mistrial after learning that three jurors had

discussed the case before deliberations began.   Finally, while

conceding that the evidence was sufficient to support his

     2
       The defendant also was convicted of possession of a
firearm with a defaced serial number during the commission of a
felony, G. L. c. 269, § 11B; unlawful possession of a firearm,
G. L. c. 269, § 10 (a); and unlawful possession of ammunition,
G. L. c. 269, § 10 (h).
     3
       A "defendant is not criminally responsible for his actions
-- and therefore entitled to a verdict of not guilty -- if, at
the relevant time and due to a mental illness (mental disease or
defect), he lacks the substantial capacity to appreciate the
wrongfulness of an action or to act in conformity with the law."
Commonwealth v. DiPadova, 460 Mass. 424, 431 (2011), citing
Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967).
                                                                          3


conviction of murder in the first degree, the defendant argues

that a reduction in the verdict would be more consonant with

justice, and asks that we exercise our power pursuant to G. L.

c. 278, § 33E, to reduce the verdict of murder in the first

degree to a lesser degree of guilt.

       We affirm the convictions, and discern no reason to

exercise our power under G. L. c. 278, § 33E.

       1.    Background.   a.   Commonwealth's case.   We summarize the

facts the jury could have found.       The defendant and the victim,

who had divorced in 1975, renewed their relationship in 1980.

They did not remarry, but lived together in a house in Everett.

Their relationship was tumultuous, and they "constantly" fought

about money.       In the week prior to the shooting, the defendant

told his granddaughter that he believed the victim had stolen

$50,000 from him and had spent the money on lottery tickets.          He

said that if he learned his suspicions were correct, he would

shoot and kill her.4       On August 15, 2007, two days before the

shooting, the defendant went to an athletic club where he worked

as a janitor and struck one of the club patrons with a baseball

bat.       He told police he had done so because he believed that the

       4
       The defendant's granddaughter, who was a young adult at
the time of trial, but was a minor at the time of the shooting,
had lived with him and the victim until approximately two weeks
before the shooting. She testified in response to questions
regarding the victim's purchase of lottery tickets that the
victim "would play the daily numbers once or twice a day," but
spent only small amounts of money on each purchase.
                                                                      4


patron had stolen $700 from him.5   Following this incident, the

defendant was fired from his job at the club.

     At 8:16 P.M. on August 17, 2007, the victim telephoned her

adult son from her cordless home telephone and spoke with him as

she stood outside her house.   She was upset and said she was

"fed up" with the defendant and was going to call the police.

The son heard the defendant pick up another telephone, located

inside the house, enabling him to hear the conversation on that

extension.   The defendant was "very angry," and began "yelling"

and swearing, "[Y]ou're going to call the fucking police?"

     Several neighbors saw or heard the events leading up to the

shooting, the shooting itself, and its immediate aftermath.      At

approximately 8:20 P.M., the victim ran across the street away

from her house, screaming.   The defendant followed her, walking

calmly, his arm extended and holding a gun in his hand.    As the

victim continued running, she tripped on the curb and turned

toward the defendant, who began shooting at her, repeating "take

that," after each of the first three shots.   The victim fell

face down on the ground.   Standing over her, the defendant said,

"Go ahead.   Call the fucking police," then walked away.   In all,

the defendant fired six shots; the victim was struck by five of

the bullets.   Four of the bullets penetrated her body, in her

     5
       The defendant was charged with assault and battery, G. L.
c. 265, § 15A (b), as a result of this attack; trial on that
charge was severed from the defendant's murder trial.
                                                                        5


left arm, left torso, the back of her neck, and the left side of

her head, and a fifth grazed the back of her neck.       She died as

a result of the gunshot wounds.6

       Neighbors telephoned 911, and police arrived within minutes

of the shooting.       Shortly after the shooting, a neighbor saw the

defendant standing on the corner of his street, craning his neck

and looking in the direction of his house.       He then turned

around and "took off" away from the scene.

       Approximately one-half hour later, the defendant approached

a couple who were sitting on the steps of their apartment

building listening to a police scanner and spoke to them.         The

man had just heard that police were looking for a suspect with a

gun.       When he noticed that the defendant was carrying a gun in

his pants, the woman telephoned 911.       The defendant was

apprehended in a liquor store shortly thereafter, while

attempting to purchase a six-pack of beer, cigarettes, and

candy.

       b.    Defendant's case.   The defendant's trial took place in

February, 2013.       The roughly six-year period between the

shooting and the trial was due in part to several continuances

for competency evaluations by different experts.

       The defendant introduced testimony by three psychiatric


       6
       It could not be determined which of the shots caused the
victim's death.
                                                                    6


experts who opined that he suffered from an organic brain

disease that had resulted in shrinkage of his frontal lobe.7     One

of the experts, a clinical professor of psychiatry at Harvard

Medical School, testified that the defendant had "organic brain

syndrome" as a result of brain injuries and the combined side

effects of the prescription medications he was taking at the

time of the shooting,8 in conjunction with chronic alcohol and

illegal drug abuse (cocaine), which exacerbated the organic

brain disease.   The expert testified that "compulsive behavior"

is a known side effect of the most recently prescribed of the

defendant's medications, Requip.   He opined that, in combination

with the defendant's brain disease and the other prescription

medications the defendant was taking, Requip had caused an

"acute" side effect, such that the defendant was "tipped . . .

over into a compulsive behavior . . . [and] unable to control

     7
       Experts for the Commonwealth and the defendant disputed
whether "organic brain syndrome" was at that time an accepted
diagnosis under the Diagnostic and Statistical Manual (DSM-IV).
It was undisputed, however, that the symptoms previously
associated with that syndrome continued to be recognized under
other diagnostic names. It was also undisputed that magnetic
resonance imaging (MRI) tests performed on the defendant in
2008, soon after the shooting, revealed some shrinkage of his
frontal lobe, which is one of the symptoms of what had been
called "organic brain syndrome." The contested issue centered
on the extent to which this physical defect had resulted in
cognitive or emotional impairments in the defendant's mental
state at the time of the shooting.
     8
       These medications included: Cymbalta, alprazolam (Xanax),
mirtazapine (Remeron), gabapentin (Neurontin), ropinirole
(Requip), tramadol (Ultram), and propoxy (Darvocet).
                                                                    7


his behavior."    This expert also testified that, at the time of

the shooting, the defendant's brain disease, exacerbated by the

medications he was taking, caused him to develop a delusional

belief that his former wife was stealing money from him.

Because of the compulsive side effects from the defendant's

medication, this delusional belief was "translated . . . into an

action"; as his behavior was compulsive, the defendant had been

unable to conform his conduct to the law.9

     Another expert testified that the defendant had

difficulties with executive function, or "thinking in an

organized way."   Such functions are controlled by the frontal

lobe, which plays an important role in an individual's ability

to control emotions and behavior.    The third expert opined that

the defendant appeared to have memory deficits and it was

likely, based on the defendant's speech and vocabulary, that he

had below-average intelligence; this expert did not opine

whether these deficits were as a result of the defendant's brain

injury.   Two of the defendant's experts also testified that

long-term substance abuse or alcohol abuse could have aggravated

the symptoms of his brain disease.

     A neighbor who witnessed the shooting testified that after


     9
       While the expert opined that the defendant could not
conform his conduct to the law, he was not able to form an
opinion as to whether the defendant could appreciate the
consequences of his actions.
                                                                    8


shooting the victim the defendant had a "blank look," that he

thought was similar to "tunnel vision."10   In addition, a witness

who had known the defendant for thirty years testified that,

during the month before the shooting, the defendant was "very,

very moody" and "paranoid" about the possibility that he would

lose his job, and was irritable and angry.11   The defendant also

introduced evidence concerning his prior abuse of cocaine,

marijuana, and alcohol.12


     10
       The defendant does not assert that he was intoxicated by
alcohol at the time of the shooting. In his recorded police
interview, which was played for the jury, the defendant stated
that he had consumed somewhere between one and four beers the
morning of the murder, but had consumed his last beer more than
eight hours before the shooting occurred.
     11
       To show the extent of his delusion, the defendant
introduced the testimony of a neighbor who said that, at
approximately 7 P.M. on August 17, 2007, he overheard the
defendant arguing with the victim and yelling, "[W]here's my
money? You spent all my money on scratch tickets?"
     12
       At the close of the defendant's case, the Commonwealth
introduced rebuttal testimony from two of its own experts. One
expert testified that the prescription drug Requip can heighten
the already addictive nature of pleasurable activities, creating
a "compulsive" need to engage in those activities, but that he
was aware of "no research that indicates that [Requip] causes
someone to lose control . . . in an aggressive or violent way."
That expert opined that the defendant was not acting
compulsively, could appreciate the consequences of his actions,
and had the ability to conform his conduct to the law. He also
testified that, in his opinion, the defendant was not suffering
from any psychotic delusions at the time of the shooting, and
that the defendant's prescription "medications did not have an
acute impact on his mental state on that date." If the
defendant had been experiencing significant side effects from
Requip, which he had been prescribed for three months, those
side effects "would have been observable over that period of
                                                                      9


    c.   Defendant's trial motions.     During the Commonwealth's

case-in-chief, the defendant moved for a mistrial on the basis

of juror misconduct.   That motion was denied.     The defendant's

motions for a directed verdict, made at the close of the

Commonwealth's case and renewed at the close of all of the

evidence, also were denied.     The jury convicted the defendant on

all counts, and this appeal followed.

    2.   Discussion.     a.   Prior bad acts evidence.   The

Commonwealth filed a motion in limine seeking to admit testimony

of a previous assault by the defendant on a fellow club member

at an athletic club to establish his motive and state of mind.

The proposed testimony was to the effect that, two days before

the shooting, the defendant struck the club member with a

baseball bat because he believed the individual owed him $700,

and consequently, the defendant had been prohibited from

returning to the club.    The judge allowed the Commonwealth's

motion to admit this evidence, over the defendant's objection

that the evidence was impermissible evidence of prior bad acts;

the defendant renewed his objection prior to introduction of the



time and wouldn't have suddenly switched on in some way without
precedent." The Commonwealth's other expert testified that the
defendant's performance on standard tests did not exhibit
cognitive impairments linked to frontal lobe shrinkage. She
stated that any difficulties the defendant experienced had to do
with symptoms of "withdrawal from his daily chronic abuse of
multiple substances," and the stress of being in prison and
charged with a serious offense.
                                                                  10


evidence at trial.   On appeal, the defendant argues that the

judge abused her discretion by allowing the admission of the

prior bad act evidence, and that, even if it were deemed

probative, the evidence was unfairly prejudicial.

    Although evidence of a defendant's prior bad acts is not

admissible to show a propensity to commit such acts, it may be

admissible if relevant for another purpose, "such as to show a

common scheme, pattern of operation, absence of accident or

mistake, identity, intent, motive, or state of mind."   See

Commonwealth v. Howard, 469 Mass. 721, 738 (2014), quoting

Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986).    When

the Commonwealth seeks to use prior bad act evidence for such a

permissible purpose, the evidence is admissible if its probative

value outweighs the risk of unfair prejudice.   Commonwealth v.

Anestal, 463 Mass. 655, 665 (2012).   Questions of admissibility,

probative value, and unfair prejudice are left to the sound

discretion of the trial judge, and will not be overturned absent

clear error.   See Commonwealth v. Morgan, 460 Mass. 277, 289

(2011).

    The evidence of the defendant's attack on his fellow club

member supported the Commonwealth's theory of the defendant's

motive and intent that, during the days preceding the shooting,

the defendant had been preoccupied with financial worries, which

intensified the day before the shooting, when he lost his job,
                                                                     11


resulting in an escalation of his arguments with the victim

about the money he accused her of taking from him.    See

Commonwealth v. Mendes, 441 Mass. 459, 464-467 (2004)

(defendant's drug use and need for money relevant to defendant's

motive for murder to gain inheritance).   The defendant's son and

granddaughter both testified that, in the days before the

shooting, the defendant was increasingly worried about money,

and preoccupied with thoughts that others owed him money they

had stolen from him.   The granddaughter testified that, during

the week before the shooting, the defendant was angry with the

victim, expressing his belief that she had stolen his money and

had spent it on lottery tickets, and stating that if his

suspicions were proved to be accurate, he would kill her.      The

son testified that, in the days immediately preceding the

shooting, the defendant was angry at someone he knew from the

athletic club for stealing money from him.    Thus, the evidence

that the defendant was preoccupied with concerns about money

supported his motive to kill the victim because he believed the

victim was taking and spending his money.    This evidence also

provided context for the shooting.   Without such context, "the

killing could have appeared to the jury as an essentially

inexplicable act of violence."   Commonwealth v. Bradshaw, 385

Mass. 244, 269 (1982).   See also Commonwealth v. Scott, 408

Mass. 811, 818-819 (1990).
                                                                   12


    In addition, the defendant had notified the Commonwealth

prior to trial that he intended to offer a defense of lack of

criminal responsibility, based on his pre-existing brain disease

and the prescription medications he had been taking in the weeks

before the shooting.    The defendant's mental state in the days

before the shooting was relevant to whether his conduct was

intentional, and not the result of compulsive or illogical

thoughts brought on by brain disease that had been exacerbated

by his medications.    See Commonwealth v. Anestal, supra at 655

(prior bad act evidence admissible to rebut defense).    While

possibly harmful to the defendant, the judge did not abuse her

discretion in concluding that the evidence was more probative

than prejudicial, and was admissible to show the defendant's

motive and state of mind.    See Commonwealth v. Howard, supra at

740 (in prosecution for murder in first degree of coworker,

admission of prior bad acts showing defendant's state of mind

toward another coworker "was arguably probative of [the

defendant's] state of mind and intent toward the victim").

    Witnesses to the defendant's attack on the club member

testified that the defendant arrived at the club on his bicycle,

with a baseball bat.    The defendant appeared calm and collected

and asked for the club member by name.    He socialized with

approximately twenty patrons on the club's patio while he waited

for the individual.    Responding to a question from one patron
                                                                   13


about why he was carrying a baseball bat, the defendant replied,

"I'm an old man.   I need to protect myself."   When the person he

believed owed him money came outside, the defendant hit him with

the baseball bat and threatened him with further violence if he

did not pay the defendant what he owed.   During the attack, the

defendant accidently knocked over a table with some drinks.

When he noticed the table was knocked over, he apologized to

those whose drinks he had spilled, and stated that the attack

did not involve them.   The individual he had attacked testified

at trial that the defendant remembered the attack the following

day, and was still angry.   The testimony was that the defendant

told him that he had been following his movements and knew his

routine, and then accurately related to him the events of the

previous day.

    The jury could infer from this evidence that the attack was

planned in advance and was executed in a deliberate manner.    The

evidence was relevant to the defendant's mental state, and was

offered to show that, in the days before the shooting, the

defendant "was not delusional but quite rational and well

oriented."   Commonwealth v. Johnston, 467 Mass. 674, 686 (2014).

See Commonwealth v. Howard, supra, citing Commonwealth v.

Maimoni, 41 Mass. App. Ct. 321, 327-328 (1996) (prior bad acts

admissible as illustrative of defendant's mental state at time,

and "to rebut defendant's testimony"); Commonwealth v. Adams,
                                                                   14


434 Mass. 805, 818 (2001) (evidence of defendant's deliberate

and rational actions after crime relevant to rebut defense of

delusional thinking).

    The defendant argues that, even if relevant, the evidence

was nonetheless overly prejudicial because it was not

"necessary" to rebut his defense.   We previously have considered

and rejected a similar argument.    In Commonwealth v. Copney, 468

Mass. 405, 413 (2014), we stated "that the Commonwealth was not

required to show that it needed the prior bad act evidence to

prove its case, and . . . the judge was not obligated to

consider whether . . . there was some alternative means by which

the Commonwealth could prove its case."    There was no abuse of

discretion in allowing the admission of the prior bad act

evidence.

    b.   Prosecutor's closing argument.    The defendant maintains

that the prosecutor misused the prior bad act evidence in his

closing, arguing that the defendant was an angry person and

prone to act out of anger, and asserting also that, at the time

of his arrest, the defendant had been on his way to shoot the

club patron he had assaulted with a baseball bat.   Because the

defendant objected to these portions of the prosecutor's closing

argument,   we "review to determine whether the remark was

improper and, if so, whether it was harmless."    Commonwealth v.

Sylvia, 456 Mass. 182, 193-194 (2010).    We conclude that there
                                                                    15


was no error.

    "Remarks made during closing arguments are considered in

context of the whole argument, the evidence admitted at trial,

and the judge's instructions to the jury" (citation omitted).

Id. at 193.   The prosecutor's reference to statements that the

defendant was "angry" at the time of the shooting was not an

impermissible reference to propensity evidence.   The prosecutor

was not asking the jury to infer that, because the defendant was

an angry person and was on his way to kill a different

individual at the athletic club, the defendant must also have

been the person who killed the victim.   Rather, the prosecutor

was drawing a distinction between deliberate actions fueled by

anger (the Commonwealth's theory of the case) and compulsive

acts fueled by "delusional beliefs" resulting from a mental

disease or defect (the defense).   Thus, the prosecutor properly

sought to tie evidence of the defendant's anger to evidence of

his conscious and deliberate decisions which, the prosecutor

argued, were the result of that anger.   The prosecutor argued,

"He decided to shoot her because he was angry at her.    It was a

decision, not a delusion."   "The defendant was angry, and it was

anger, not some sort of mental disease or defect or intoxicant,

that caused him to act the way that he did that day.    It was

anger that caused him to make the decisions that he did."    In

this context, the prosecutor's references were a permissible use
                                                                   16


of the prior bad act evidence.   See Commonwealth v. Carlson, 448

Mass. 501, 508-509 (2007) (prior bad act evidence related to

defendant's hostility admissible to show hostility generated

motive or intent for crime).

    The defendant also challenges the prosecutor's statement in

closing that the defendant "decided to reload the firearm and

decided to go the route that headed towards the club and decided

to stop at a liquor store that's en route with that, and we know

that those are decisions as opposed to delusions because he told

the police that's why he was going there because he was going to

shoot [the club member he attacked with a bat]."   The prosecutor

was not thereby asking the jury to infer that the defendant must

have planned to shoot his former wife because he also might have

planned a future assault on someone else.   Rather, the

prosecutor was rebutting the defense that the defendant was not

acting intentionally or rationally when he shot the victim.    The

prosecutor pointed to evidence that the defendant had made a

series of "deliberate" and conscious decisions immediately after

the shooting, and argued that this supported a conclusion that

the defendant's thoughts and actions at the time of the murder

were not delusional or involuntary.   See generally Commonwealth

v. Mendes, 441 Mass. 459, 466 (2004); Commonwealth v. Simpson,

434 Mass. 570, 578-579 (2001) (statement made immediately after

killing, that defendant would shoot police officer if he had
                                                                     17


bullet, admissible to prove defendant's aggressive and

threatening behavior to rebut state of mind defense for the

killing).

    c.   Juror misconduct.    i.   Motion for a mistrial.   On the

seventh day of trial, juror no. 12 sent a note to the judge

stating that, during a break in the proceedings the previous

day, she had overheard a discussion between some jurors that

sounded as though they were discussing "issues related to the

case," and she was "unsure if what they were discussing was

allowed."   The judge conducted a voir dire of juror no. 12, and

determined that the overheard conversation was between jurors

nos. 2, 6, and 9.    The discussion related primarily to each of

the jurors' feelings about defense counsel and the defendant's

demeanor, but also had involved off-color jokes about the

defendant's actions during his arrest, and speculation about why

a crime that took place in 2007 had not been tried until 2013.

    The judge thereafter conducted individual voir dire, during

which one juror said that she thought that juror no. 6 appeared

to have made up his mind about the case, based on his comment

that there was no need for further witnesses and it was clear

what had happened.    The judge dismissed juror no. 6.   Following

extensive voir dire of the remaining jurors, the judge concluded

that they had not been tainted by juror no. 6's comments and

remained impartial, and that any exposure to the comments "was
                                                                   18


relatively de minimis . . . [and] did not infect any of the

other jurors in any way that is prejudicial to any party."

    During deliberations, after the judge had renewed her

instruction to the jury not to speak with anyone connected to

the case, or about the case, the court reporter told the judge

that while she and juror no. 9 had been in a court house

elevator, juror no. 9 had apologized to her for a comment in

which he said that the court reporter's mask made her look like

"Darth Vader"; the comment had come to light during the judge's

voir dire of the jurors.    The judge denied the defendant's

requested that juror no. 9 be dismissed.

    Article 12 of the Massachusetts Declaration of Rights and

the Sixth Amendment to the United States Constitution guarantee

a criminal defendant the right to a trial before an impartial

jury.   Commonwealth v. Seabrooks, 433 Mass. 439, 442 (2001).

Prohibiting premature jury deliberations, and extraneous

influences on jurors, safeguards a defendant's right to trial

before an impartial jury.    See Tanner v. United States, 483 U.S.

107, 126-127 (1987); United States v. Jadlowe, 628 F.3d 1, 15

(1st Cir. 2010), cert. denied, 563 U.S. 926 (2011).

Nonetheless, "not all premature jury discussion about a case

will compromise a defendant's fair trial rights."     United States

v. Jadlowe, supra at 18.    See Commonwealth v. Smith, 461 Mass.

438, 443 n.10 (2012) (jurors' comments that they were bored by
                                                                   19


one of Commonwealth's witnesses did not reflect impermissible

deliberation on substance of case).   A judge's "determination of

a juror's impartiality 'is essentially one of credibility, and

therefore largely one of demeanor' . . . .   In such

circumstances, we give a trial judge's determination of

impartiality great deference."   Commonwealth v. Alicea, 464

Mass. 837, 849 (2013), quoting Commonwealth v. Ferguson, 425

Mass. 349, 352-353 (1997).

    As the defendant suggests, the comments made by jurors nos.

2, 6, and 9 related to their feelings about "the strength of

evidence or his or her opinion of the defendant's guilt" and not

to "extraneous matter[s]."   Commonwealth v. Guisti, 434 Mass.

245, 251-252 (2001), S.C., 449 Mass. 1018 (2007).   The comments

also hinted at extraneous information regarding the personal

experiences of some jurors that potentially could have

influenced their deliberations, such as one juror's experience

as a fire fighter.   Under either view of the comments, we give

deference to the judge's conclusion, arrived at following

extensive individual voir dire, that the remaining jurors had

not been influenced by the comments and continued to be

impartial.   See Commonwealth v. Maldonado, 429 Mass. 502, 506-

507 (1999) (no abuse of discretion when, after learning of

extraneous influence on jury discovered during trial, judge

removed offending juror but found that rest of jury remained
                                                                      20


impartial and gave curative instruction).    See, e.g.,

Commonwealth v. Ferguson, supra at 353-354; Commonwealth v.

Kamara, 422 Mass. 614, 616 (1996); Commonwealth v. Urena, 417

Mass. 692, 700 (1994) (no prejudice to defendant from juror's

question of witness, made during trial, where record did not

disclose improper influence on remaining jurors).

    Jurors "inevitably formulate impressions as they hear

evidence.   This is natural and cannot be prevented. . . .      The

question is whether jurors can suspend final judgment and keep

their minds open to other evidence that they hear."

Commonwealth v. Guisti, supra at 254.    During voir dire, each

juror asserted a belief that the joking tone and content of the

comments was not intended to violate the judge's instruction not

to talk about the case, and that the comments had only a

tangential relationship to the case.    No juror believed the

comments were intended to, or did, influence his or her views

regarding the evidence presented.   Each testified that he or she

continued to have an open mind, and would not consider the

extraneous comments before or during deliberation.    The judge

gave a pointed curative instruction that the jury were to

disregard any extraneous information that they had heard, and

should not discuss the case before deliberations began.    Given

these curative efforts after dismissal of juror no. 6, there was

no abuse of discretion in the denial of the defendant's motions
                                                                      21


for a mistrial with regard to the juror comments during trial or

juror no. 9's comment during deliberations.

     ii.   Motion for a juror to be made an alternate.     Prior to

deliberations, the defendant requested that the judge make juror

no. 9 a nonrandom selection as an alternate because the

defendant believed, on the basis of the juror's prior comments,

that the juror already had made up his mind against the

defendant.   We reject, as without basis in the law, the

defendant's argument that the judge should have designated juror

no. 9 as an alternate.   Having concluded that the juror remained

impartial, and finding no evidence to overcome the presumption

that jurors follow the instructions they are given, see

Commonwealth v. Watkins, 425 Mass. 830, 840 (1997), the judge

had no basis upon which to take the irregular step of

designating juror no. 9 a nonrandom selection as an alternate.13

See Commonwealth v. The Ngoc Tran, 471 Mass. 179, 189-191 (2015)

(analyzing nonrandom selection of alternate juror as irregular).

     d.    Review under G. L. c. 278, § 33E.   While conceding that

the evidence was sufficient to support his conviction, the

defendant maintains that the weight of the evidence supports a

     13
       The judge concluded that juror no. 9's comment to the
court reporter did not violate the judge's instructions because
"while it was inappropriate for him to initiate conversation,"
the comment to the court reporter "could have been easily
perceived by [juror no. 9] as outside the realm of my
instructions because his conversation with the court reporter
had nothing whatsoever to do with the case."
                                                                  22


verdict of manslaughter or murder in the second degree, and

urges us to reduce the verdict pursuant to our authority under

G. L. c. 278, § 33E.   We may reduce a verdict to a lesser degree

of guilt if we are satisfied "that the verdict was against the

law or the weight of the evidence . . . or for any other reason

that justice may require."   G. L. c. 278, § 33E.

    The defendant argues that a lesser degree of guilt is

appropriate here because the evidence at trial established that

the killing resulted from a "compulsive act and a delusional

thought."   The defendant contends that the evidence supports a

conclusion that, at the time of the killing, he suffered from a

brain disease that resulted in cognitive and emotional

impairments that were exacerbated by prescription medications

that affected his impulse control and caused paranoid thinking.

He argues that this combination of factors caused him to engage

in the "compulsive act" of killing the victim, and also to

suffer from the "delusional belief" (her stealing money) that

provided the motive for her killing.

    We have carefully reviewed the record, and decline to

reduce the verdict pursuant to our authority under G. L. c. 278,

§ 33E.

                                    Judgments affirmed.
