Commonwealth v. Ortega

480 Mass. 603

106 N.E.3d 675

COMMONWEALTH

v.George ORTEGA.

SJC-12145

Supreme Judicial Court of Massachusetts, Suffolk..

Argued February 9, 2018.

Decided September 17, 2018.

Robert L. Sheketoff, Boston, 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, 91 N.E.3d 1126 (2018) ; Commonwealth v. Soares, 377 Mass. 461, 486–488, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (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 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, 387 N.E.2d 499 ], and the equal protection clause [of the Fourteenth Amendment to the United States Constitution], see Batson v. Kentucky, 476 U.S. 79, 84–88 [106 S.Ct. 1712, 90 L.Ed.2d 69] (1986)." Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (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, 785 N.E.2d 368 (2003) (purposeful exclusion based on intersectional status in group defined by race and gender prohibited). See also Commonwealth v. Robertson, 480 Mass. 383, 397, 105 N.E.3d 253 (2018). There is a presumption that the exercise of a peremptory challenge is proper. See Commonwealth v. Issa, 466 Mass. 1, 8, 992 N.E.2d 336 (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, 892 N.E.2d 314 (2008), citing Commonwealth v. Curtiss, 424 Mass. 78, 80, 676 N.E.2d 431 (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, 77 N.E.3d 278 (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, 77 N.E.3d 278. See Commonwealth v. Maldonado, 439 Mass. 460, 463 n.4, 788 N.E.2d 968 (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) "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, 77 N.E.3d 278, citing Issa, 466 Mass. at 9, 10-11, 992 N.E.2d 336.⁷ 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, 992 N.E.2d 336 ; Commonwealth v. Fryar, 414 Mass. 732, 738, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (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, 77 N.E.3d 278, citing Issa, supra at 10, 992 N.E.2d 336.

Similar to the judge's decision in the case underlying Jones, 477 Mass. at 325, 77 N.E.3d 278, the judge in this case relied exclusively on the presence of a single female African-American 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, 106 S.Ct. 1712, 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-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, 77 N.E.3d 278.¹⁰

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 instructions on self-defense and voluntary manslaughter. See Commonwealth v. Little, 431 Mass. 782, 785, 730 N.E.2d 304 (2000), citi...