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SJC-12145

                  COMMONWEALTH   vs.   GEORGE ORTEGA.



      Suffolk.       February 9, 2018. - September 17, 2018.

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


Homicide. Constitutional Law, Jury. Jury and Jurors.
     Practice, Criminal, Jury and jurors, Empanelment of jury,
     Challenge to jurors, Instructions to jury, Request for jury
     instructions. Self-Defense.



     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.


    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
                                                                     2


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 The defendant was also convicted of carrying a firearm
without a license.

     2 A codefendant, Anthony King Solomon, was acquitted of
murder in the first degree, as a participant in a joint venture,
and of carrying a firearm without a license.
                                                                      3


     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.




     3 This section provides information relevant to the
peremptory challenge issue. Further factual details are recited
in the context of the alleged errors about which the defendant
complains.

     4 The defendant also argues that the judge erred in
declining to allow his exercise of a peremptory strike to juror
no. 105, a Caucasian member of the venire who is an accountant.
See Commonwealth v. Prunty, 462 Mass. 295, 310 n.22 (2012).
Because we conclude that the judge abused her discretion by
failing to require an explanation for the prosecutor's
peremptory challenge of juror no. 78, we do not reach this
issue.
                                                                   4


     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




     5 In Commonwealth v. Cousin, 449 Mass. 809, 818, 822 (2007),
cert. denied, 553 U.S. 1007 (2008), and Commonwealth v. Hampton,
457 Mass. 152, 171 (2010), we held that a prosecutor has
independent authority to conduct checks of jurors' criminal
offender record information (CORI) records pursuant to G. L.
c. 6, § 172, before the jury are sworn. Here, the prosecutor
had alerted the judge in advance of jury selection that he would
be checking selected jurors' CORI records and providing such
records to all counsel.

     6 Similar to juror no. 26, juror no. 51's CORI records
indicated that he had failed to disclose his criminal history on
his jury questionnaire. The judge allowed the prosecutor's
                                                                  5


    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 that

the defendant had not met his prima facie burden, explaining

that there was already one "female of color on th[e] jury."

    b.     Discussion.   "The use of peremptory challenges to

exclude prospective jurors solely because of bias presumed to

derive from their membership in discrete community groups is

prohibited both by art. 12 [of the Massachusetts Declaration of

Rights], see [Soares, 377 Mass. at 486–488], and the equal

protection clause [of the Fourteenth Amendment to the United

States Constitution], see Batson v. Kentucky, 476 U.S. 79, 84–88

(1986)."   Commonwealth v. Harris, 409 Mass. 461, 464 (1991).

Unlike its Federal counterpart, art. 12 prohibits bias in jury

selection not only based on race or gender independently, but

also based on a combination thereof.    See Commonwealth v.

Jordan, 439 Mass. 47, 62 (2003) (purposeful exclusion based on



subsequent request to exercise his fourth peremptory strike to
excuse juror no. 51.
                                                                     6


intersectional status in group defined by race and gender

prohibited).    See also Commonwealth v. Robertson, 480 Mass. 383,

397 (2018).    There is a presumption that the exercise of a

peremptory challenge is proper.     See Commonwealth v. Issa, 466

Mass. 1, 8 (2013).     "That presumption may be rebutted, however,

if it is shown that (1) there is a pattern of excluding members

of a discrete group; and (2) it is likely that individuals are

being excluded solely because of their membership in this

group."   Commonwealth v. Benoit, 452 Mass. 212, 218 (2008),

citing Commonwealth v. Curtiss, 424 Mass. 78, 80 (1997).

    "A challenge to a peremptory strike, whether framed under

State or Federal law, is evaluated using a burden-shifting

analysis."     Commonwealth v. Jones, 477 Mass. 307, 319 (2017).

In the first stage, "the burden is on the party challenging the

peremptory strike to make a prima facie showing that the strike

is improper.     If the party does so, the burden shifts to the

party attempting to strike the prospective juror to provide a

group-neutral reason for doing so."     Id.

    Establishing a prima facie case of discrimination "is not

an onerous task."     Jones, 477 Mass. at 321.    See Commonwealth v.

Maldonado, 439 Mass. 460, 463 n.4 (2003).        In determining

whether a pattern exists, a trial judge is to consider all of

the relevant facts and circumstances including (1) "the number

and percentage of group members who have been excluded"; (2)
                                                                        7


"the possibility of an objective group-neutral explanation for

the strike"; (3) "any similarities between excluded jurors and

those, not members of the allegedly targeted group, who have

been struck"; (4) "differences among the various members of the

allegedly targeted group who were struck"; (5) "whether those

excluded are members of the same protected group as the

defendant or the victim"; and (6) "the composition of the jurors

already seated."       Jones, supra at 322, citing Issa, 466 Mass. at

9, 10-11.7      A single peremptory challenge may be sufficient to

make a prima facie showing that rebuts the presumption of proper

use.       See Issa, supra at 9; Commonwealth v. Fryar, 414 Mass.

732, 738 (1993), S.C., 425 Mass. 237, cert. denied, 522 U.S.

1033 (1997) ("challenge of a single prospective juror within a

protected class could, in some circumstances, constitute a prima

facie case of impropriety").       We review the judge's decision on

the peremptory challenge for an abuse of discretion.       Jones,

supra at 319-320, citing Issa, supra at 10.

       Similar to the judge's decision in the case underlying

Jones, 477 Mass. at 325, the judge in this case relied

exclusively on the presence of a single female African-American



       "This list of factors is neither mandatory nor exhaustive;
       7

a trial judge and a reviewing court must consider 'all relevant
circumstances' for each challenged strike." Commonwealth v.
Jones, 477 Mass. 307, 322 n.24 (2017), quoting Batson v.
Kentucky, 476 U.S. 79, 96 (1986). See Commonwealth v.
Robertson, 480 Mass. 383, 397 (2018).
                                                                    8


who at that point had been seated in concluding that the

defendant had not met his prima facie burden.8   Specifically, the

judge explained that the prosecutor was entitled to exercise the

peremptory strike because there was already one woman of color

on the jury.   While the composition of seated jurors provides a

prism through which to determine discriminatory intent, "that is

only one factor among many, and must be assessed in context."

Id.   "The presence of one empanelled African-American juror

. . . cannot be dispositive."   Id.   See Sanchez v. Roden, 753

F.3d 279, 302-303 (1st Cir. 2014).    "[T]o place undue weight on

this factor not only would run counter to the mandate to

consider all relevant circumstances, see Batson, 476 U.S. at 96-

97, but also would send the 'unmistakable message that a

prosecutor can get away with discriminating against some

African-Americans . . . so long as a prosecutor does not

discriminate against all such individuals'" (emphasis added).

Jones, supra, quoting Sanchez, supra at 299 (that five African-


      8The Commonwealth argues that, at the time of the
prosecutor's peremptory challenge to strike juror no. 78, two of
the six seated jurors "were women of color." We have previously
noted that "[t]he test in Soares and Batson does not apply to
challenges to members of all minority ethnic or racial groups
lumped together, but instead applies to challenges to
'particular, defined groupings in the community.'" Prunty, 462
Mass. at 307 n.17, quoting Commonwealth v. Soares, 377 Mass.
461, 486, cert. denied, 444 U.S. 881 (1979). See Gray v. Brady,
592 F.3d 296, 305-306 (1st Cir.), cert. denied, 561 U.S. 1015
(2010) (explaining that African-American and Hispanic jurors are
not part of same "cognizable group" for Batson purposes).
                                                                     9


Americans had already been seated not, by itself, dispositive).

Because the judge only considered the composition of the

empanelled members of the jury, thereby placing undue weight on

one of six relevant factors, we conclude that the judge abused

her discretion in finding that the defendant had fallen short of

making a prima facie showing of discrimination.9    Accordingly,

the defendant's convictions must be reversed.     See Jones, supra

at 325-326.10

     2.   Failure to instruct on self-defense and voluntary

manslaughter.   a.   Background.   The defendant argues that the

judge erred in declining to give his tendered jury instructions

on self-defense and voluntary manslaughter.     Although the jury

heard conflicting testimony from various witnesses, we view the

evidence in the light most favorable to the defendant to

determine if any view of the evidence would support jury

     9 Where a judge has already found a prima facie showing of
excluding prospective jurors based on race, gender, or
membership in some other protected class, the judge should
carefully scrutinize subsequent challenges to the use of
peremptory strikes as to another juror in the same protected
class. "[W]here a judge abuses his or her discretion by failing
to find a prima facie case, the error is unlikely to be
harmless." Commonwealth v. Issa, 466 Mass. 1, 11 n.14 (2013).
We therefore again "urge judges to think long and hard before
they decide to require no explanation from the prosecutor for
the challenge and make no findings of fact" where "a defendant
claims that a prosecutor's peremptory challenge of a prospective
juror is motivated by discriminatory intent." Id.

     10Although our conclusion above is dispositive and requires
reversal, we discuss the issues raised by the defendant that may
arise at a new trial.
                                                                  10


instructions on self-defense and voluntary manslaughter.    See

Commonwealth v. Little, 431 Mass. 782, 785 (2000), citing

Commonwealth v. Berry, 431 Mass. 326, 334 (2000).   Viewed in

this light, the record reveals the following relevant facts,

which the jury reasonably could have found.

    On the afternoon of May 24, 2012, the victim confronted the

defendant regarding the defendant's drug dealing activities on

Leyland Street in the Roxbury section of Boston, which the

victim regarded as part of his drug territory.   The victim was

angry that the defendant was selling drugs in his territory and

accused the defendant of "trying to take all the money."     During

that confrontation, the victim told the defendant that he did

not want the defendant coming around Leyland Street, called the

defendant a "snitch," and punched him.   In response, the

defendant reached toward his waist -- a gesture arguably

understood to mean that person was carrying a firearm -- before

leaving Leyland Street without further confrontation.

    Later that evening, the defendant returned to Leyland

Street.   The victim approached the defendant, who was standing

on the street in front of 23 Leyland Street, and an argument

ensued.   As the argument escalated, the men began to gesture

toward one another as if they were going to fight "up and up"

(i.e., without weapons).
                                                                     11


    The testimony about what happened in the moments prior to

the shooting, as with much of the testimony, is in conflict.

Viewing the evidence in the light most favorable to the

defendant, as we must for this analysis, the jury could have

reasonably found as follows.   The defendant told a man who had

appeared beside him in the street to "look out" for individuals

standing on the stairs of the two nearest row houses.     Around

that same time, the victim's brother departed from one of the

row houses and stood on the front steps of 23 Leyland Street; he

was holding something in his left hand and had another object

tucked into the waist band of his shorts.     The victim then moved

back toward the row houses and walked away from the crowd toward

the area between 19 and 23 Leyland.     The victim returned moments

later and called out, "It's jammed," after which the defendant

started jogging backwards and shooting in the direction of the

victim.   Somewhere between six and ten gunshots rang out, mostly

from the direction of the defendant.     The initial shots sounded

like they were being fired from the center of the street,

followed by a number of shots fired from the entryway of 23

Leyland Street.   The victim's brother was standing in the

entryway at the time of shooting.     The victim was struck with a

bullet that entered his lower back and passed through his left

lung before leaving through his shoulder.
                                                                    12


     After being shot, the victim ran toward 19 Leyland Street,

where he collapsed on the front steps and died from the gunshot

wound to his lower back.

     At the scene of the shooting, the police recovered one

spent .22 caliber shell casing from the sidewalk in front of 23

Leyland Street and five spent .45 caliber shell casings from the

middle of the street.     The police also recovered one spent

projectile from the victim's body.    After analyzing the .45

caliber shell casings and the bullet recovered from victim's

body during autopsy, a ballistician with the Boston police

department concluded that the same .45 caliber weapon discharged

both the shell casings and the bullet.     The ballistician further

concluded that the shell casing recovered from the sidewalk in

front of 23 Leyland was fired from a .22 caliber long rifle.

     b.   Discussion.   The evidentiary threshold for a defendant

seeking an instruction on self-defense is low, as it is the

Commonwealth's burden to prove that the defendant did not act in

proper self-defense once the issue is raised.     Commonwealth v.

Pike, 428 Mass. 393, 395 (1998), citing Commonwealth v.

Harrington, 379 Mass. 446, 450 (1980) (defendant entitled to

self-defense instruction "if any view of the evidence" would

support instruction).11    In determining whether the evidence


     11The defendant did not lose his right to a self-defense
instruction when he asserted a misidentification defense. If
                                                                 13


warrants an instruction on self-defense, we consider the

evidence, from any source, and resolve all reasonable inferences

in favor of the defendant.   See Commonwealth v. Santos, 454

Mass. 770, 773 (2009); Benoit, 452 Mass. at 227; Pike, supra;

Commonwealth v. Toon, 55 Mass. App. Ct. 642, 645 (2002).

    When deadly force is used, such as in this case, a

defendant is entitled to an instruction on self-defense where

there is evidence "permit[ting] at least a reasonable doubt"

that the defendant "reasonably and actually believed that he was

in 'imminent danger of death or serious bodily harm,'" Pike, 428

Mass. at 396, quoting Harrington, 379 Mass. at 450; that he

"availed himself of all proper means to avoid physical combat

before resorting to the use of deadly force," Commonwealth v.

Pring–Wilson, 448 Mass. 718, 733 (2007), quoting Harrington,

supra; and that he "used no more force than was reasonably

necessary" in light of the circumstances, Pring-Wilson, supra.



the defendant requests, and the evidence supports, an
instruction on self-defense, the Commonwealth must prove its
absence beyond a reasonable doubt, and the judge must give a
requested self-defense instruction, even when the defendant
asserts a misidentification defense. See Commonwealth v.
Thomas, 429 Mass. 146, 154-155 (1999); Commonwealth v. Anderson,
396 Mass. 306, 313 (1985); Commonwealth v. Walden, 380 Mass.
724, 726 (1980). See also Commonwealth v. Hakkila, 42 Mass.
App. Ct. 129, 130 (1997) (defendant could argue, "I didn't do it
. . . but if I did do it, it was self-defense"). The
Commonwealth is also entitled, over a defendant's objection, to
a jury instruction on voluntary manslaughter when the facts
could support the lesser offense. See Commonwealth v. Woodward,
427 Mass. 659, 662-663 (1998).
                                                                  14


Additionally, the right of self-defense ordinarily "cannot be

claimed by a [person] who provokes or initiates an assault."

Commonwealth v. Espada, 450 Mass. 687, 693 (2008), quoting

Commonwealth v. Maguire, 375 Mass. 768, 772-773 (1978).

    Here, the trial evidence by no means compelled a conclusion

that the defendant acted in self-defense, but if the testimony

from several witnesses who testified favorably to the defendant

were deemed credible, a rational jury could find that the

Commonwealth failed to prove beyond a reasonable doubt that the

defendant did not shoot the victim in self-defense.

Specifically, there was testimony from which the jury could

infer that the victim not only escalated the confrontation by

displaying a gun, but also tried to shoot the defendant before

the victim himself was shot.   This evidence, considered in

combination with testimony concerning the confrontation between

the victim and the defendant earlier that day, would be

sufficient to permit a rational jury to find a reasonable doubt

whether the defendant had a reasonable and actual belief that he

was in imminent danger of being killed or seriously injured.

See Commonwealth v. Harris, 464 Mass. 425, 429-430, 432-433

(2013) (overt gesture in combination with statement from victim

sufficient to put question of self-defense to jury).   See also

Commonwealth v. Iacoviello, 90 Mass. App. Ct. 231, 240 (2016).

Cf. Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013)
                                                                   15


(victim's prior violent acts admissible to demonstrate

propensity for violence where it is disputed whether defendant

or victim was first to use or threaten deadly force).

    There is also sufficient evidence, resolving all inferences

in favor of the defendant, from which a reasonable jury could

find that the Commonwealth failed to prove beyond a reasonable

doubt that the defendant was the first to threaten deadly force

and that he did not avail himself of all proper means to avoid

physical combat before resorting to the use of deadly force.

Self-defense is generally unavailable where the confrontation

occurs on a public street and "where 'there is no evidence that

the principal was not able to walk away.'"    Commonwealth v.

Avila, 454 Mass. 744, 769 (2009), quoting Commonwealth v.

Pasteur, 66 Mass. App. Ct. 812, 820 (2006).     See Berry, 431

Mass. at 335 ("The right to self-defense does not arise unless

. . . the defendant took every opportunity to avoid combat

. . .").   Our case law does not, however, "impose an absolute

duty to retreat regardless of personal safety considerations,"

Benoit, 452 Mass. at 227; it only requires that a person avoid

using deadly force against another if there is a "reasonable

avenue of escape available" (emphasis added).    Pike, 428 Mass.

at 398.    If a person is threatened with death or serious bodily

injury by an aggressor armed with a firearm, in open space away

from cover or safety, it would be unreasonable to impose a
                                                                   16


categorical rule that requires him or her to be shot in the back

in a fruitless attempt to retreat.   If the weapon requires close

proximity to inflict injury and threaten death, then retreat in

an open space becomes a more viable option so long as the

aggressor is not within range to use the weapon.   In light of

the myriad possible permutations of facts and circumstances,

whether a defendant has used all available and reasonable means

to retreat is generally a question of fact.   See Harrington, 379

Mass. at 452 (whether defendant could have retreated was

question for fact finder).12   Here, there was evidence that the

victim had a gun and had tried to shoot the defendant first, and

that the defendant was jogging backwards prior to, or at the

same time, that he first started shooting at the victim.13   Based

on this evidence, whether the defendant could have retreated (or


     12Generally, determination whether a defendant has availed
himself or herself of "all reasonable means to avoid physical
combat before resorting to the use of deadly force depends on
all of the circumstances, including the relative physical
capabilities of the combatants, the weapons used, the
availability of room to maneuver or escape from the area, and
the location of the assault." Model Jury Instructions on
Homicide 30 (2018). See Commonwealth v. Pike, 428 Mass. 393,
399 (1998).

     13To the extent that the jury heard conflicting testimony
regarding whether the victim had turned away from the defendant
before the defendant started shooting, the decision whether to
accept or reject that testimony was a question for the jury.
See Commonwealth v. Santos, 454 Mass. 770, 773 (2009), citing
Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975)
(credibility of evidence or whether it is controverted or
conflicts with other evidence is question for fact finder).
                                                                   17


should have attempted to retreat) from the victim, whom he could

have believed had a gun and who had already attempted to fire

before the weapon malfunctioned, was a question for the jury.

See id.    See also Iacoviello, 90 Mass. App. Ct. at 240.

     We reach the same conclusion with respect to an instruction

on the mitigating circumstance of excessive force in self-

defense.   In a deadly force case, if the Commonwealth fails to

disprove all the elements of self-defense except the element of

reasonableness of the force used, then the jury may not return a

verdict of murder, but must find the defendant guilty of

voluntary manslaughter.   See Commonwealth v. Grassie, 476 Mass.

202, 210 (2017), citing Commonwealth v. Glacken, 451 Mass. 163,

167 (2008) (excessive force in self-defense will mitigate murder

to voluntary manslaughter); Commonwealth v. Walker, 443 Mass.

213, 216 (2005) (same prerequisites for self-defense apply where

defendant seeks instruction on manslaughter based on excessive

use of force).   The evidence here, considered in the light most

favorable to the defendant, warranted instructions on self-

defense and voluntary manslaughter based on the theory of

excessive use of force in self-defense.    See, e.g., Iacoviello,

90 Mass. App. Ct. at 241-242.14


     14The defendant does not argue on appeal that he was
entitled to jury instructions on voluntary manslaughter based on
reasonable provocation or heat of passion caused by sudden
combat. Because issues and evidence relevant to these
                                                                  18


    3.   Conclusion.   The defendant's convictions are vacated

and set aside.   The case is remanded to the Superior Court for

further proceedings consistent with this opinion.

                                    So ordered.




instructions may or may not arise in the same way at the
retrial, we do not consider whether the jury should have been
instructed on these theories.
