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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 AfricanAmerican 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 

 

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

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-

 

8 The 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.

10 Although 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 

 

11 The 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 

 

12 Generally, 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).

13 To 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 selfdefense. 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 selfdefense 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

 

14 The 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.