Heard: February 9, 2018.
found and returned in the Superior Court Department on
October 31, 2012.
cases were tried before Linda E. Giles, J.
L. Sheketoff for the defendant.
Julianne Campbell, Assistant District Attorney (Ian
Polumbaum, Assistant District Attorney, also present) for the
Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.
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
on May 24, 2012.,  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
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
Peremptory challenge of juror no. 78.
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) . To provide
context for addressing this claim, we begin by summarizing
the relevant factual background.
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.
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. The judge allowed the prosecutor's
request, and juror no. 51, a male African-American member of
the venire, replaced juror no. 26 without
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 ...