Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Ortega

Supreme Judicial Court of Massachusetts, Suffolk

September 17, 2018

COMMONWEALTH
v.
GEORGE ORTEGA.

          Heard: February 9, 2018.

         Indictments found and returned in the Superior Court Department on October 31, 2012.

         The cases were tried before Linda E. Giles, J.

          Robert L. Sheketoff for the defendant.

          Julianne Campbell, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, also present) for the Commonwealth.

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

          LOWY, J.

         A Superior Court jury convicted the defendant, George Ortega, of murder in the first degree on the theory of deliberate premeditation for the shooting death of Steven

         Fuentes on May 24, 2012.[1], [2] The shooting was precipitated by a drug turf war. After the close of all the evidence, the defendant requested that the jury be instructed on self-defense and voluntary manslaughter. The request was denied, and the jury were instructed as to the prerequisites for a guilty finding of murder in the first degree and murder in the second degree.

         On appeal, the defendant argues that the judge abused her discretion by declining to require the prosecutor to explain his peremptory challenge to a female African-American member of the venire. The defendant also argues that the judge erred by declining to instruct the jury on self-defense and voluntary manslaughter. For the reasons discussed below, we conclude that the judge erred by declining to require an explanation for the prosecutor's peremptory challenge. We also conclude that the judge erred in declining to give the defendant's requested jury instructions on self-defense and voluntary manslaughter. Accordingly, we vacate the defendant's convictions.

         1. Peremptory challenge of juror no. 78.

         a. Background.[3]

         The defendant contends that the judge abused her discretion by declining to require the prosecutor to provide an adequate and genuine race-neutral reason for his peremptory challenge to juror no. 78, a female African-American member of the venire. See Commonwealth v. Lopes, 478 Mass. 593, 596 (2018); Commonwealth v. Soares, 377 Mass. 461, 486-488, cert, denied, 444 U.S. 881 (1979) .[4] To provide context for addressing this claim, we begin by summarizing the relevant factual background.

         After directing a series of questions to the jury venire as a group and through a written questionnaire, the judge conducted an individual voir dire of the prospective jurors. The judge then allowed counsel the opportunity to question the prospective jurors, and the judge required counsel to raise any peremptory challenge to a prospective juror immediately after the judge completed her questioning.

         The defendant raised his first race-based Soares challenge when he objected to the prosecutor's use of his second peremptory challenge to strike juror no. 26, a male African-American member of the venire. The judge determined that the defendant had made a prima facie showing of improper use of the peremptory strike, and required the prosecutor to provide an adequate gender- and race-neutral reason for his decision to strike. The judge initially denied the prosecutor's request to strike juror no. 26, explaining that the prosecutor's proffered explanation -- concerns related to juror no. 26's health -- were inadequate. The prosecutor later sought to exercise his second peremptory challenge to strike juror no. 26 based on that juror's failure to accurately disclose his criminal history on his jury questionnaire.[5] The judge allowed the prosecutor's request, and juror no. 51, a male African-American member of the venire, replaced juror no. 26 without objection.[6]

         The defendant asserted his next race-based Soares challenge to the prosecutor's fifth peremptory challenge to strike juror no. 78, a female African-American member of the venire. At that point, one female African-American had been seated, and the prosecutor had used two of his four peremptory strikes against male African-American prospective jurors. Although the judge had already found a Soares pattern of excluding prospective African-American jurors because of race, the judge found ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.