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SJC-12678
COMMONWEALTH vs. JOSE RAMOS.
Hampden. May 8, 2026. - August 13, 2026.
Present: Budd, C.J., Gaziano, Wendlandt, Georges,
& Wolohojian, JJ.
Homicide. Self-Defense. Evidence, Self-defense, Prior violent
conduct. Practice, Criminal, Assistance of counsel,
Instructions to jury, New trial, Capital case.
Constitutional Law, Assistance of counsel.
Indictment found and returned in the Superior Court Department on April 15, 2015.
The case was tried before Constance M. Sweeney, J., and a motion for a new trial, filed on May 8, 2025, was considered by Michael K. Callan, J.
Michael Tumposky for the defendant.
Travis H. Lynch, Assistant District Attorney, for the Commonwealth.
WENDLANDT, J. After a jury trial, the defendant, Jose
Ramos, was found guilty of murder in the first degree on a
theory of deliberate premeditation for the stabbing death of
2
Luis Sanchez (victim). The defendant's principal defense at
trial was that he killed the victim in lawful self-defense.
In this consolidated appeal from his conviction and the
denial of his motion for a new trial, the defendant contends
that trial counsel was constitutionally ineffective because he
failed to introduce evidence of the victim's prior violent
conduct pursuant to Commonwealth v. Adjutant, 443 Mass. 649
(2005), and that the trial judge erred in failing to instruct
the jury sua sponte on voluntary manslaughter by sudden combat
after trial counsel withdrew a request for such an instruction.
The defendant also asks us to exercise our authority under G. L.
c. 278, § 33E, to order a new trial or a reduction in the
verdict. We affirm the defendant's conviction of murder in the
first degree and the denial of his motion for a new trial and
discern no reason to grant relief under G. L. c. 278, § 33E.
1. Background. a. Facts. We summarize the facts the
jury reasonably could have found, reserving certain details for
later discussion.
On the evening of March 10, 2015, the defendant went to the
intake office of a shelter where he and the victim had been
living and spoke with an employee (first employee) to report a
conflict with the victim; he stated that the victim was drunk,
"giving him a lot of attitude[,] and . . . somebody needed to
speak to [the victim]." After noticing the victim standing by
3
the office window, the first employee told the defendant that
she or another employee would talk to the victim and that he
should leave the office. The defendant promptly left the office
and headed to the basement; the victim hesitated, apparently
considering entering the office, but then followed the
defendant.
Surveillance video footage from the shelter showed the two
men entering a dormitory in the basement. The defendant put on
a leather jacket and beckoned the victim to follow him back
upstairs; the victim removed his jacket and followed the
defendant.1
Meanwhile, the first employee instructed another shelter
employee (second employee) to go to the basement to speak with
both men. As the second employee approached the stairwell the
men had used to enter the basement, the defendant and the victim
walked past him on their way up the stairs; the victim trailed
the defendant.
Although the defendant had requested staff intervention to
resolve his dispute with the victim, he did not stop to talk to
the second employee, whom he passed in a "rushy . . . hustle
manner." The victim also had a "hostile" demeanor as he passed
1 The video footage showed the defendant wearing dark clothes and a black leather jacket; the victim wore a red football jersey with the number twenty-one emblazoned in white on the front and back, and a black shirt underneath.
4
the second employee. The second employee followed the men and
saw them leave the shelter. Upon seeing the two men leave the
shelter and head toward the street, the second employee believed
there was going "to be a problem." Shelter rules prohibited
fighting on the property, and residents who violated the rule
were banned from the premises.2 Thus, residents intending to
fight without being banned would go "across the street to the
parking lot area." The second employee alerted staff and a
Springfield police officer assigned to the shelter (shelter
officer) that a fight was going to occur outside.
Surveillance video footage captured part of the physical
confrontation, which took place in the shelter's parking lot and
on the adjacent street. The video footage showed that the
victim was in front of the defendant when they left the shelter.
As the victim walked toward the adjacent street with his back to
the defendant and his arms by his side, the defendant suddenly
quickened his pace and closed the gap between them; lunging at
the victim, the defendant raised his arm in a forward slashing
movement, inferably stabbing the victim in the back. The victim
fell to the ground.
At this point, the video footage did not capture the
actions of the two men while they were out of the video frame
2 Residents are informed of the shelter rules on intake.
5
for roughly fifteen seconds. A woman who was visiting the
shelter the evening of the stabbing witnessed the fight; she
testified that she saw the defendant make upward punching
gestures at the victim, who was standing again. The victim was
unarmed and did not otherwise attack the defendant. The visitor
also did not see a weapon in the defendant's hands, although she
saw that the victim was bleeding after the men separated.
When the men moved back into the frame of the surveillance
video footage, the defendant was walking away from the victim
and toward the shelter; the victim briefly moved toward the
defendant in a jumping motion before falling behind, taking off
his jersey and black undershirt, and stumbling to the ground.
Subsequent forensic examination of the victim's jersey and
undershirt revealed cuts in both shirts matching the wounds on
the victim's body; in short, he was stabbed while wearing both
shirts.
By the time the two shelter employees and the shelter
officer reached the parking lot, the fight had concluded; they
saw the victim staggering and bleeding heavily from the abdomen
before collapsing. The defendant was holding a knife, which he
dropped upon the shelter officer's command. Police officers
later recovered a green-handled knife from the crime scene; the
knife contained the victim's deoxyribonucleic acid and matched
the green sheath found in the pocket of the defendant's jacket.
6
Police officers also recovered a yellow- and gray-handled
screwdriver from the crime scene; the screwdriver tested
positive for occult blood.
The shelter officer asked the second employee to watch the
defendant while he attended to the victim, who had suffered four
stab wounds to the chest, torso, and back. While the victim was
receiving medical attention, the defendant sat near the shelter
entrance and smoked a cigarette. The defendant was uninjured
from the altercation. The defendant's jacket had some damage on
the right front panel and left sleeve, but the cause of the
damage was unclear and none of the tears penetrated through the
interior lining of the jacket.
When police officers approached the defendant to arrest
him, he "casually, [and] nonchalant[ly]" took a final puff of
his cigarette, stood up, extinguished the cigarette, and turned
around, placing his hands behind his back to be handcuffed
without any direction to do so by the arresting officers. When
the officers asked the defendant if he had any weapons, the
defendant responded that he was unarmed because he had already
dropped the knife. As the officers escorted the defendant to
the police cruiser, they walked past the victim's body; the
defendant spontaneously remarked, "[T]hat guy's dangerous. He
always carried knives. I don't feel bad about it."
7
The victim was later transported to the hospital, where he
died. The medical examiner concluded that the cause of death
was multiple sharp-force injuries. The victim's injuries
included one stab wound to the back that probed from back to
front and slightly upwards; two stab wounds to the chest that
penetrated the heart; and one stab wound to the torso that
punctured the lung and stomach.
b. Self-defense. At trial, the defendant did not contest
that he had stabbed the victim; instead, he contended that the
victim was the first person to use deadly force. Specifically,
he claimed that the victim attacked the defendant with a
screwdriver and that the defendant acted in self-defense.
The defense rested primarily on the testimony of a shelter
resident who testified that he saw the defendant and the victim
engaged in a pushing and screaming match in the parking lot. He
saw the victim "pull[] a red-and-clear-handled screwdriver out
from his back and [come] around and [swing] it at" the
defendant, prompting the defendant to strike back.3 The resident
testified that the victim started swinging the screwdriver at
3 The jury were presented with conflicting evidence of the resident's view of the defendant's weapon. One month after the stabbing, the resident told the police, upon being presented with a photograph of the green knife recovered from the crime scene, that it was the weapon he observed the defendant using against the victim. However, at trial the resident testified that he did not see the green-handled knife in the defendant's hands.
8
the defendant after he removed his jersey and undershirt. As
discussed, the surveillance video footage contradicted this
testimony; it showed the victim collapsing to the ground and
remaining on the ground immediately after removing his clothing.
Further, when presented with photographs of the yellow- and
gray-handled screwdriver that police officers had recovered from
the shelter parking lot on the day of the stabbing and that
tested positive for occult blood, the resident testified that it
was not the screwdriver he had seen the victim use.
At the close of evidence, the trial judge conducted a
charge conference during which the defendant's trial counsel
withdrew his request for a voluntary manslaughter by sudden
combat instruction, explaining that the case law showed the
instruction was unwarranted under the circumstances.4 The jury
were instructed on the law of self-defense, murder in the first
degree by deliberate premeditation and extreme atrocity or
cruelty, murder in the second degree, and voluntary manslaughter
by excessive use of force in self-defense and reasonable
provocation.
4 Specifically, trial counsel said that he believed there was a case that foreclosed the availability of a voluntary manslaughter by sudden combat instruction and the judge agreed, noting that she had read the same case in connection with another trial. Neither counsel nor the trial judge specified the referenced case.
9
On April 12, 2018, the jury convicted the defendant of
murder in the first degree on a theory of deliberate
premeditation. The defendant timely appealed.
c. Motion for a new trial. In May 2025, the defendant
filed a motion for a new trial, which we remitted to the trial
court. In his motion, the defendant argued that his trial
counsel was constitutionally ineffective for failing to
introduce Adjutant evidence, including the victim's two 2010
convictions of rape of a child, G. L. c. 265, § 23; three 2010
convictions of indecent assault and battery on a child under
fourteen, G. L. c. 265, § 13B; 2009 conviction of resisting
arrest, G. L. c. 268, § 32B;5 and 2007 conviction of assault and
battery, G. L. c. 265, § 13A. The defendant maintained that
this evidence would have bolstered his defense that the victim
was the first to use deadly force.
In connection with the motion, trial counsel provided an
affidavit, in which he averred in relevant part:
"Based on my review of the discovery, including the
surveillance video of the altercation, it is and was my
opinion that there was no issue as to who the first
aggressor in this altercation was. . . . Additionally,
based on the information I had relating to [the
defendant's] and [the victim's] records of violent
offenses, [the defendant] had a more significant record for
5 While the victim was not charged with assault and battery on a police officer, the defendant argues that the police report for the resisting arrest charge to which the victim pleaded guilty shows that the victim's conduct constituted assault and battery on a police officer.
10
violence. [The defendant] had a number of convictions for
assault and battery, including assault and battery by means
of a dangerous weapon . . . . [The defendant] also had a
number of assault and battery cases that were
dismissed. . . . If the court had allowed [the defendant]
to introduce [the victim's] record for violence, it would
have opened the door to allow the Commonwealth to introduce
[the defendant's] record for violence. It is/was my
opinion that this strategy would not have advanced [the
defendant's] interests."
The defendant's prior violent acts included a 2013 conviction of
assault and battery, 2008 charges of assault and battery and
breaking and entering in the nighttime with intent to commit a
felony that were dismissed, and 2001 convictions of assault by
means of a dangerous weapon and assault and battery by means of
a dangerous weapon.
The motion judge, who was not the trial judge (the trial
judge having retired), denied the motion without an evidentiary
hearing, concluding that trial counsel's tactical decision not
to introduce Adjutant evidence was not manifestly unreasonable
as that evidence provided "little support for the notion that
[the] victim had a propensity to be the first aggressor" and
would have permitted the Commonwealth to introduce the
defendant's prior violent conduct. The motion judge also
questioned whether the trial judge would have allowed the
admission of the victim's child sexual assault convictions, as
those offenses were "markedly dissimilar to his alleged conduct
here -- escalating a fist fight into a lethal encounter by
11
attempting to stab his opponent with a screwdriver." The
defendant timely appealed from the denial of his motion, and
that appeal was consolidated with his direct appeal.6
2. Discussion. a. Ineffective assistance of counsel.
i. Adjutant evidence. "Evidence of prior bad acts is generally
inadmissible to show a defendant's propensity to commit a
crime." Commonwealth v. Don, 483 Mass. 697, 713 (2019). In
Adjutant, we carved a narrow exception to this rule; we
determined that "where the identity of the first aggressor[7] is
in dispute and the victim has a history of violence, . . . the
trial judge has the discretion to admit evidence of specific
acts of prior violent conduct that the victim is reasonably
alleged to have initiated, to support the defendant's claim of
self-defense." Adjutant, 443 Mass. at 664. The jury may infer
based on such evidence that "the victim and not the defendant
6 In May 2020, the defendant filed a G. L. c. 278A motion, the denial of which we reversed on appeal. See Commonwealth v. Ramos, 490 Mass. 818, 819 (2022). The defendant has not filed a motion for a new trial based on the results of the requested scientific testing.
7 Pertinent here, "the term 'first aggressor' is not limited to the person who provokes or initiates a nondeadly assault"; it may also refer to the individual who "escalated the potential for violence through the use or threat of deadly force." Commonwealth v. Deconinck, 480 Mass. 254, 263 (2018), citing Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013). See Chambers, supra at 530 (victim's prior bad acts are admissible where "the initiator of the nondeadly assault is known, [but] it is disputed whether the victim or the defendant was the first to use or threaten deadly force").
12
was likely to have been the first aggressor because . . . the
victim acted in conformance with his character for violence on
the occasion in question" (quotations and citation omitted).
Commonwealth v. Souza, 492 Mass. 615, 621 (2023).
Because the purpose of admitting Adjutant evidence is to
provide the jury with "as complete a picture of the (often
fatal) altercation as possible before deciding on the
defendant's guilt," the judge may "admit not only evidence of
the victim's prior acts of violence, but also 'evidence (if it
exists) of specific violent acts of the defendant.'"
Commonwealth v. Rateree, 495 Mass. 610, 619 (2025), quoting
Commonwealth v. Morales, 464 Mass. 302, 310 (2013). "In
deciding whether to admit evidence concerning prior acts of
violence by the victim and more particularly by the defendant
. . . , the judge must carefully examine the particular
circumstances of the case and weigh the probative value of such
evidence against its prejudicial effect." Morales, supra at 312
n.16. If the trial judge admits evidence of prior violent
conduct, he or she must instruct the jury that they may consider
the evidence only for the limited purpose of evaluating the
defendant's disputed self-defense claim. See id. at 310-311;
Adjutant, 443 Mass. at 663-664.
ii. Standard of review. "Because the motion judge did not
preside over the trial or conduct an evidentiary hearing, and
13
the only relevant evidence submitted . . . consisted of
affidavits and other documentary evidence, we review the denial
of the motion for a new trial de novo." Commonwealth v. Mazza,
484 Mass. 539, 547 (2020). "In reviewing a defendant's claim of
ineffective assistance of counsel in a case of murder in the
first degree, we do not evaluate the claim under the traditional
standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96
(1974)." Commonwealth v. Noguera, 496 Mass. 601, 610 (2025).
"Instead, we apply the more favorable standard of G. L. c. 278,
§ 33E, and review the defendant's claim for a substantial
likelihood of a miscarriage of justice" (citation omitted). Id.
"Under this standard, we first ask whether defense counsel
committed an error in the course of trial, and if there was
error, we ask whether it was likely to have influenced the
jury's conclusion" (quotations and citation omitted). Id.
"Where a claim of error is based on a tactical or strategic
decision by trial counsel, rather than an omission or mistake,
an attorney's decision is only ineffective if it was manifestly
unreasonable" (quotation and citation omitted). Commonwealth v.
Robinson, 493 Mass. 775, 789 (2024). "Manifestly unreasonable
decisions are those 'which lawyers of ordinary training and
skill in criminal law would not consider competent.'" Id. at
789-790, quoting Commonwealth v. Ayala, 481 Mass. 46, 62 (2018).
14
iii. Reasonableness. Here, trial counsel averred that he
declined to introduce Adjutant evidence of the victim's prior
violent conduct because he believed that doing so would have
opened the door to the admission of the defendant's prior
violent conduct, which, in counsel's estimation, would have
revealed to the jury that the defendant had a greater propensity
for violence than the victim. Trial counsel's strategic
decision was not manifestly unreasonable.
To begin, the acts underlying the victim's child sexual
assault convictions, although perhaps indicative of violent
behavior in general, had minimal probative value to show that
the victim was likely to have been the first to employ deadly
force. See Commonwealth v. Deconinck, 480 Mass. 254, 267 (2018)
("judge did not abuse her discretion in finding that the
violation of the restraining order did not tend to show that the
victim was the initial aggressor" as it was "different in nature
from the knife fight"); Commonwealth v. Gaynor, 73 Mass. App.
Ct. 71, 75-76 (2008) (judge would not have abused discretion in
declining to admit Adjutant evidence where prior incidents of
domestic violence "were different in nature from the incident
underlying the offense, a street fight, and they were separated
in time from the charged offense by approximately four years").
And the prejudicial effect of the child sexual assault
convictions may have outweighed their minimal probative value.
15
Cf. Commonwealth v. Peno, 485 Mass. 378, 398-399 (2020) ("[an]
equally fundamental concern resulting from the piling on of
impermissible prior bad act evidence, particularly involving a
young child and a brutal crime, is that the . . . evidence . . .
could so inflame the jury's passion or sympathy that they would
be unable to remain impartial").
Even assuming, arguendo, that the trial judge would have
allowed the Adjutant evidence of the victim's prior violent
conduct to be admitted, trial counsel's decision to forgo it
because it would open the door to the introduction of the
defendant's prior convictions was not manifestly unreasonable.8
The defendant's theory of self-defense rested on whether he or
the victim was the first to use a deadly weapon, and the
Adjutant evidence at issue showed that the defendant was the
only one of the two men with a conviction of assault and battery
8 The defendant also argued that trial counsel's averment that he declined to introduce Adjutant evidence because he believed there was "no issue as to who the first aggressor in this altercation was" showed that counsel's decision was predicated on a lack of understanding of the law --specifically, that Adjutant applies where the defendant started the fight but the victim was the first to introduce lethal force -- and that therefore his decision was manifestly unreasonable. Because trial counsel also averred that he predicated his decision on his estimation that any positive effect of Adjutant evidence would be outweighed by the prejudicial effect of counter-Adjutant evidence, and we conclude that that rationale was not manifestly unreasonable, we do not reach the defendant's additional argument.
16
by means of a dangerous weapon.9 See Commonwealth v. Kirkland,
491 Mass. 339, 348-349 (2023) (decision not to call witness not
manifestly unreasonable where counsel believed witness could
"open up Pandora's box" as she "knew details that could really
hurt [the] defense"); Commonwealth v. Teixeira, 486 Mass. 617,
638 (2021) (decision "not to a call a witness whose testimony
counsel felt might . . . harm his client's case . . . is not
manifestly unreasonable"); Commonwealth v. Thompson, 431 Mass.
108, 121, cert. denied, 531 U.S. 864 (2000) (decision not to
present evidence that "was as potentially inculpatory as it was
exculpatory" was reasonable tactical decision). Thus, the
motion judge did not abuse his discretion in denying the
defendant's motion.10 See Kirkland, supra at 349 ("we cannot say
9 Although the defendant asserts that the Commonwealth would have been unable to introduce in evidence his 2001 assault and assault and battery by means of a dangerous weapon convictions because the Superior Court destroyed the 2001 records, the Commonwealth averred that it retained its file of the case. The defendant's further assertion that the Commonwealth would have been unable to present a witness to prove the defendant's violent conduct in the 2008 case for assault and battery lacks factual support. See Commonwealth v. Marinho, 464 Mass. 115, 123 (2013) ("A defendant bears the burden of proof on a motion for a new trial").
10To the extent that the defendant argues that admission of Adjutant evidence could have supported a manslaughter verdict, he is wrong. The jury may consider Adjutant evidence for the limited purpose of assessing a defendant's disputed self-defense claim. See Morales, 464 Mass. at 311 n.14 ("with respect to evidence of prior specific acts of violence by the victim and the defendant, the limiting instruction [delineating that evidence may only be used to assess a self-defense claim] should
17
that trial counsel's decision was manifestly unreasonable" and
that trial counsel was therefore ineffective where "we can
ascertain counsel's strategic and tactical reasons" behind
decision).
b. Voluntary manslaughter by sudden combat. The defendant
next contends that he was entitled to an instruction on
voluntary manslaughter by sudden combat and that the trial
judge's failure to give the instruction sua sponte created a
substantial likelihood of a miscarriage of justice. In
particular, he maintains that the evidence, including the
shelter resident's testimony, the damage to the exterior of the
defendant's jacket, and the presence of occult blood on the
screwdriver recovered from the crime scene, when viewed in the
light most favorable to him, showed that the victim struck the
defendant with a screwdriver first and that, accordingly, he was
entitled to a sudden combat instruction. We disagree.
"A manslaughter instruction is required if the evidence,
considered in a light most favorable to the defendant, would
permit a verdict of manslaughter rather than murder."
Commonwealth v. Howard, 479 Mass. 52, 57 (2018). "Voluntary
be given both during trial, when the evidence is admitted, and during the judge's final charge"). See also Commonwealth v. Webster, 480 Mass. 161, 171 (2018) ("The jury are presumed to have followed jury instructions" [quotation and citation omitted]).
18
manslaughter is [an unlawful] killing committed in a sudden
transport of heat of passion or heat of blood, upon reasonable
provocation and without malice, or upon sudden combat"
(quotation and citation omitted). Id.
We have described the type of altercation that may
constitute sudden combat as follows:
"When two meet, not intending to quarrel, and angry words
suddenly arise, and a conflict springs up in which blows
are given on both sides, without much regard to who is the
assailant, it is a mutual combat. And if no unfair
advantage is taken in the outset, and the occasion is not
sought for the purpose of gratifying malice, and one seizes
a weapon and strikes a deadly blow, it is regarded as
homicide in heat of blood . . . ."
Commonwealth v. Poum, 496 Mass. 267, 274 (2025), quoting
Commonwealth v. Webster, 5 Cush. 295, 308 (1850). "Generally,
to warrant a sudden combat instruction the 'victim . . . must
attack the defendant or at least strike a blow against the
defendant.'" Poum, supra, quoting Commonwealth v. Espada, 450
Mass. 687, 696-697 (2008). And even if "there is physical
contact between a defendant and a victim[, it] is not always
sufficient to warrant a manslaughter instruction" (quotation and
citation omitted). Espada, supra at 697. At bottom, "[t]here
must be evidence that would warrant a reasonable doubt that
something happened which would have been likely to produce in an
ordinary person such a state of passion, anger, fear, fright, or
nervous excitement as would eclipse his capacity for reflection
19
or restraint, and that what happened actually did produce such a
state of mind in the defendant" (citation omitted). Howard, 479
Mass. at 59 n.7.
Viewed in the light most favorable to the defendant, the
evidence did not warrant a sudden combat instruction. Far from
a meeting of individuals "not intending to quarrel" during which
angry words "suddenly arise" and a conflict "springs up"
(citation omitted), Poum, 496 Mass. at 274, the evidence at
trial was that the defendant and the victim had a preexisting
dispute, the defendant reported the conflict to shelter staff,
and staff assured the defendant that someone would come down to
the basement to resolve the matter between him and the victim.
Rather than wait for the promised mediator, upon arriving in the
basement the defendant donned a jacket containing a knife and
beckoned the victim to follow him outside. On their way to the
planned rumble, the two men passed at least one other shelter
employee; they did not seek assistance from him. Instead, the
two men briskly walked past the employee in such a manner as to
cause the employee to understand that the men were going to
engage in a physical altercation in the street where shelter
residents would fight in order to avoid the consequence of being
banned from the shelter. The central dispute at trial was
whether the defendant or the victim was the first to employ
deadly force, not whether the men decided to fight; indeed,
20
trial counsel told the jury that the undisputed evidence was
that the men "went outside to have a fist fight." In sum, the
evidence did not support the inference that the defendant was in
"a state of passion, anger, fear, fright, or nervous excitement
as would eclipse his capacity for reflection or restraint"
(citation omitted). Howard, 479 Mass. at 59 n.7.
To be sure, the shelter resident testified that, when the
defendant and the victim were outside the shelter, he observed
the defendant and victim yelling and pushing at each other
before the victim pulled out a screwdriver and swung it at the
defendant. This testimony, however, does not contradict the
evidence that there was nothing "sudden" about the altercation
between these combatants. Specifically, the resident's
testimony had no bearing on the evidence showing that the
defendant and the victim had a preexisting conflict, that the
defendant put on a jacket containing the murder weapon before
beckoning the victim to follow him, that both men left the
building in a manner that made it apparent to shelter staff that
they were going to fight, and that the defendant ambushed the
victim from behind. See Poum, 496 Mass. at 275 (fact that
defendant brought weapon with him weighed against sudden
combat); Commonwealth v. Miranda, 492 Mass. 301, 308 (2023)
(sudden combat instruction not warranted in part because
21
defendant, who followed victim around building before striking
fatal blow, had time to regain self-control).
Nor does the evidence support the requirement that "no
unfair advantage [was] taken [at] the outset" (citation
omitted). Poum, 496 Mass. at 274. Instead, the surveillance
video footage showed that as the men left the shelter, the
victim walked ahead of the defendant at such a pace that a
distance was created between the two, and that as the victim's
back was turned, the defendant suddenly quickened his pace to
close the gap between them and then raised his arm above his
head and brought it down on the victim's backside in a slashing
motion. The victim fell to the ground thereafter. Nothing in
the resident's testimony that the men were yelling at each other
before the victim began swinging a screwdriver at the defendant
contests the captured footage showing the defendant striking the
victim as the victim was walking away with his back to the
defendant.
In these circumstances, the trial judge was not required to
give a sudden combat instruction sua sponte after trial counsel
specifically withdrew his request for it. See Commonwealth v.
Waller, 486 Mass. 72, 76 (2020) ("judge did not abuse his
discretion by deciding to abide by the defendant's request not
to provide the self-defense instruction"); id. at 75 ("judge has
no obligation to instruct [on self-defense] when neither party
22
requests [the instruction], because doing so may interfere[]
with the defendants' right to present their chosen defenses"
[quotation and citation omitted]); Commonwealth v. Acevedo, 446
Mass. 435, 442 n.12 (2006) (judge not required to sua sponte
instruct jury on reasonable provocation); Commonwealth v. Berry,
431 Mass. 326, 337 (2000) ("[w]hen the evidence permits a
finding of a lesser included offense, a judge must, upon
request, instruct the jury on the possibility of conviction of
the lesser crime" [citation omitted; emphasis in original]).
3. Conclusion. For the foregoing reasons, we conclude
that trial counsel was not constitutionally ineffective for not
introducing Adjutant evidence and that the trial judge did not
err in failing to instruct the jury on voluntary manslaughter by
sudden combat. Further, after careful review of the entire
record, we conclude that there is no reason to exercise our
power under G. L. c. 278, § 33E, to order a new trial or reduce
the verdict. We therefore affirm the conviction and the denial
of the motion for a new trial.
So ordered.