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Commonwealth v. Ramos

2026-08-13

Authorities cited

Opinion

majority opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]

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

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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

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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.

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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.

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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.

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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."

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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.

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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.

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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.

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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

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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").

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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

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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).

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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.

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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.

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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

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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]).

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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

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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,

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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

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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

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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.