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13-P-1950                                               Appeals Court

                    COMMONWEALTH    vs.   JOHN LACOY.


                              No. 13-P-1950.

       Suffolk.           February 1, 2016. - October 6, 2016.

               Present:   Trainor, Meade, & Sullivan, JJ.


Homicide. Practice, Criminal, Challenge to jurors, Jury and
     jurors, Assistance of counsel, Opening statement,
     Instructions to jury. Jury and Jurors. Evidence, Prior
     misconduct.


     Indictment found and returned in the Superior Court
Department on September 29, 2011.

    The case was tried before Raymond J. Brassard, J.


     Neil L. Fishman for the defendant.
     Matthew T. Sears, Assistant District Attorney (Ursula A.
Knight, Assistant District Attorney, with him) for the
Commonwealth.


    SULLIVAN, J.      After a jury trial, the defendant, John

Lacoy, was convicted of murder in the second degree.        See G. L.

c. 265, § 1.     On appeal, he contends that (1) the Commonwealth's

exercise of two of its peremptory challenges violated art. 12 of

the Massachusetts Declaration of Rights and the equal protection
                                                                     2


clause of the United States Constitution; (2) trial counsel was

ineffective; (3) prior bad acts were admitted in error; and (4)

the judge erred by declining to instruct the jury on sudden

combat theory of voluntary manslaughter and involuntary

manslaughter.    We affirm.

     Background.    We recite the facts as the jury could have

found them, noting facts that are disputed, and reserving

certain details for our analysis of the issues raised on appeal.

     The defendant and the victim, Casey Taylor, met in a

homeless shelter.    After the defendant found an apartment with

two other men, Taylor stayed with him overnight from time to

time.    The landlord1 eventually told the defendant that Taylor

was not to come to the house any more.     The defendant did not

allow Taylor to leave the bedroom or make noise on those nights

when the landlord was at home, and required Taylor to urinate in

a bottle.

     Both men were alcoholics.    Over the course of the two years

that they knew each other, Taylor sought out the defendant after

the defendant's Social Security disability check had arrived.

Taylor wanted money to purchase alcohol.    When the defendant

received his disability check, the two men were seen on the back

porch of the apartment with large bottles of vodka for days at a

time.    When the alcohol was gone, Taylor left.

     1
         One of the men in the apartment was the landlord.
                                                                     3


     The defendant told friends that he was interested in Taylor

sexually, even though Taylor was straight.     Nine months before

Taylor's death, in a recorded telephone call, the defendant told

a friend that he had put pills in the victim's vodka because he

wanted to "molester" him.2    The defendant, who testified at

trial, admitted that he drugged Taylor because he felt used, and

that he was angry.   The defendant also admitted that he sexually

assaulted Taylor after Taylor drank too much and "blacked out."

He tried to justify his actions by pointing to Taylor's habit of

using the defendant for his money.     He also said that sex was

sometimes consensual.

     The defendant referred to the victim as a leech, meaning,

in the defendant's words at trial, "he used me a lot" and "he

wanted me for my money."     At trial, the defendant admitted that

he had threatened to beat up the victim, to hit him over the

head with a beer bottle, and to steal his money.     Several months

before the murder he told one friend, "If he shows up here I'll

murder him."

     On the night of July 31, 2011, the defendant and Taylor

were alone in the defendant's bedroom.     A neighbor overheard

part of an argument coming from the bedroom, during which the


     2
       Various electronic mail messages and recordings of
telephone calls were kept by a friend of the defendant.
Additional recorded telephone calls, made while the defendant
was in jail, were also admitted.
                                                                     4


defendant yelled, "I'm sick of you being a leech[.]   I'm sick of

supporting you[.]   [L]ook at you now[.]   I'm feeding you now."

There was an altercation, during which the defendant stabbed

Taylor in the chest with a knife, perforating his heart.     Taylor

cried out, "Call 9-."    Instead of calling for help, the

defendant dragged Taylor out of the bedroom, down the stairs,

and outside the house, and left him to die underneath a

latticework enclosure around the stairs that led to the back

porch.

    The defendant then went back to the bedroom where the

stabbing had taken place.    He flipped over the bloody mattress,

removed and disposed of the bloody sheets and the knife, and

fled.    Nine days later, Taylor's decomposing body was discovered

after several complaints were lodged that a foul, "nauseating"

smell was coming from somewhere near the defendant's residence.

    The cause of death was a single stab wound to the heart.

At trial, the issue before the jury was whether the killing was

committed with the requisite intent to sustain a charge of

murder in the second degree or involuntary manslaughter, or

whether the killing was done in self-defense or was accidental.

    Needing a place to go and wanting to "hide," the defendant

checked himself into Beth Israel Hospital, professing to be
                                                                      5


suicidal.3    His stated reason for admission was that he felt

depressed and drank too much, and too many people were leeching

off him.     Once admitted, the defendant told a nurse about the

stabbing.    The defendant said that he had become "annoyed" with

Taylor when Taylor had asked him to buy more vodka, and that he

then punched Taylor.     Taylor bit the defendant's finger and

punched the defendant, and the defendant then stabbed Taylor,

who ran away.    He told a similar story to a friend, claiming

that Taylor had run away.     He told another friend that he and

Taylor had passed out on the beach and that Taylor may have been

swept out with the tide.

     During his stay at the hospital, the defendant sent an

electronic mail (e-mail) message to a friend stating "I heard

they found Taylo[r's] courpse [sic][.]     I'm glad[.]   No[w] he

will not leach [sic] off me anymore[.]"     The e-mail was sent six

days before Taylor's body was discovered by the police.

     The defendant lied to his friends about Taylor's

whereabouts, and about how (and whether) Taylor had died, even

after Taylor's body was discovered at the defendant's residence

on August 9, 2011.     Recorded telephone calls were introduced at

trial, in which the defendant admitted to killing Taylor and

     3
       The defendant told a friend that he needed a place to stay
so he was going to check himself into Beth Israel Hospital and
say that he was suicidal. The defendant told his mother that he
was going there "to hide."
                                                                     6


said that he would "make stuff up."4   On August 16, 2011, fifteen

days after the killing, and seven days after the discovery of

the body, he admitted to one friend that he had "got [Taylor]

once . . . right under the heart" and "dragged him down the back

stairs, threw him underneath."

     The theory of the defense was that the stabbing was either

in self-defense or accidental.   The defendant testified that he

purchased alcohol on the day of the killing.    He and Taylor

drank together at the defendant's home, and then went to the

beach and drank some more.    Upon their return to the defendant's

home, the defendant prepared chicken for the two of them.       He

brought the plate of chicken, together with a knife and fork, to

the defendant's bedroom, where Taylor was waiting.    Complaining

that he wanted more "booze," Taylor threw the plate of food

across the bedroom, and then attacked the defendant with a metal

box fan, hitting him in the shoulder and the side of his head.

Taylor jumped on top of the defendant, tried to strangle him,

and bit one of his fingers.   At that point, the defendant pulled

his finger from Taylor's mouth, and the knife that the defendant

brought with the chicken "fell into his body accidentally."       The



     4
       During his first interview with the police, the defendant
stated that he did not know Taylor. When pressed, he said "I
don't know him very well. I might have met him." At trial, the
defendant testified that had lied to the police, and that he had
known Taylor about two years.
                                                                      7


defendant also testified that he stabbed Taylor "to get him off

of me" and that he was "protecting himself from getting killed."

    Discussion.    1.   Peremptory challenges.   The defendant

contends that the judge's allowance of the Commonwealth's

peremptory challenges of an African-American female juror (juror

165) and a gay African-American male juror (juror 179) denied

him his right to a jury selection process free from invidious

discrimination.   "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]

. . . and the equal protection clause [of the United States

Constitution]."   Commonwealth v. Issa, 466 Mass. 1, 8 (2013)

(citations and quotation omitted).     See Commonwealth v. Soares,

377 Mass. 461, 486-488, cert. denied, 444 U.S. 881 (1979);

Batson v. Kentucky, 476 U.S. 79 (1986) (Batson).     "The

Constitution forbids striking even a single prospective juror

for a discriminatory purpose."   Foster v. Chatman, 136 S. Ct.

1737, 1747 (2016) (quotation omitted).

    A defendant may "object to the use of a peremptory

challenge without regard to whether the defendant and the

excused juror are of the same race."     Sanchez v. Roden, 753 F.3d

279, 292 (1st Cir. 2014), citing United States v. Mensah, 737

F.3d 789, 797 (1st Cir. 2013), cert. denied, 134 S. Ct. 1912
                                                                     8


(2014).   See Powers v. Ohio, 499 U.S. 400, 402 (1991) (Powers).

The defendant is entitled to a choice of jurors free of the

taint of racial bias.   Miller-El v. Dretke, 545 U.S. 231, 237-

238 (2005).   The defendant is also entitled to assert the right

of each juror to sit under the equal protection clause of the

United States Constitution.     Powers, supra at 415.

     "There is a presumption that the exercise of a peremptory

challenge is proper.    That presumption may be rebutted, however,

if [the objecting party shows] that (1) there is 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) (Benoit).     In addition, "[a] single peremptory

challenge may be sufficient to make a prima facie showing,"

where the circumstances of the challenge so indicate.     Ibid.

"Once an issue is raised concerning an improper use of a

peremptory challenge, 'the judge must make a finding as to

whether a prima facie showing of an improper use . . . has been

made.'"   Commonwealth v. Rodriguez, 457 Mass. 461, 471 (2010)

(Rodriguez), quoting from Commonwealth v. Maldonado, 439 Mass.

460, 463 (2003) (Maldonado).5



     5
       "We have stressed the importance of this task, noting that
'an appellate court must be able to discern from the record
whether the preliminary finding has been made, one way or the
                                                                    9


     If that showing is made, the burden shifts to the party

making the peremptory challenge to "provide a group-neutral

reason."   Benoit, supra at 219 (citation omitted).    The

proponent of the challenge "must give a 'clear and reasonably

specific' explanation of his 'legitimate reasons' for exercising

the challenges."    Commonwealth v. Burnett, 418 Mass. 769, 771

(1994), quoting from Batson, supra at 98 n.20.     To be bona fide,

reasons must be both "adequate" and "genuine."     Benoit, supra at

219-220.   "The judge should make 'specific findings' or provide

an 'explanation' ascertainable to an appellate court concerning

whether the reason for removal offered by the challenging party

is both adequate and genuine."     Rodriguez, supra at 471, quoting

from Maldonado, supra at 465-466.

     a.    Juror 165.   After the individual voir dire of juror

165, an African-American woman, the Commonwealth exercised a

peremptory challenge.6    The judge, sua sponte, noted that the

Commonwealth had already challenged "one black female and one

black male[, a]nd this would be the second black female."7    The




other.'" Rodriguez, supra at 471, quoting from Maldonado, supra
at 463 n.5. Oral findings are sufficient for this purpose.
     6
       Defense counsel did not challenge the juror for cause and
had said the juror was acceptable.
     7
       At the time of the challenge, the Commonwealth had
exercised four peremptory challenges, of which three were
directed to African-American jurors. Of the twenty-nine jurors
                                                                              10


judge sought an explanation, and the prosecutor offered one:

that the juror worked at Beth Israel Hospital, the hospital to

which the defendant had been admitted.            After expressing some

skepticism about the explanation given, but accepting its truth,

the judge allowed the challenge, stating, "[W]ere we involved

with a [d]efendant that [sic] was African American I would not

permit the challenge.          But here I will.   Although I think it’s

very marginal.       Okay."8    Defense counsel did not object at any

time.    See Rule 6 of the Rules of the Superior Court (1989).9



questioned to that point, fifteen had been excused for cause,
the defense challenged three, and seven jurors had been seated.
     8
         The full colloquy is as follows:

          Judge: "I can't imagine what the racial basis,
     conscious or unconscious would be. Because the Defendant
     appears to be a person of Caucasian heritage. Is that
     right, [defense counsel]?"

            Defense counsel:        "I didn't hear the last part."

          Judge:       "The Defendant is a person of Caucasian
     heritage."

            Defense counsel:        "He does [sic], yes."

          Judge: "Yes, I'm just asking. But there is a little
     bit of a pattern there that's concerning to [prosecutor]."

          Prosecutor: "Nothing to do with race, Your Honor.               I
     can tell you more specifically."

            Judge:     "Yes?"

          Prosecutor: "[Juror 165] works at the Beth Israel
     Deaconess [Hospital]. There are medical records, that is
     where the Defendant checked himself into. And so I just
                                                                11


     The defendant, citing Powers, supra, contends that the

judge's ruling was error because it was based on the mistaken

premise that a white defendant is not entitled to make a Soares-

Batson challenge.10   Looking at the colloquy as a whole, see note



     don’t want there to be any sort of -- if you were to [sic]
     overlap between what occurred with him checking himself
     into Beth Israel and her position there."

          Judge:   "That seems like an awfully attenuating
     concern?"

          Prosecutor: "It's just a concern, Your Honor. It
     really is a legitimate concern."

          Judge: "Yes, I don't have any reason to doubt the
     truth of what you say. I accept that. It's a marginal
     reason to exercise a peremptory. But were we involved with
     a Defendant that [sic] was African American I would not
     permit the challenge. But here I will. Although I think
     it’s very marginal. Okay."
     9
       General Laws c. 234, § 32, as in effect at the time of
trial, purported to permit a challenge to an "irregularity" in
the "impanelling" of jurors at any point until the verdict. No
objection was lodged before the verdict, and we need not address
the relationship between the statute and Superior Court rule 6
and cases arising thereunder. General Laws c. 234 was repealed
in 2016 and replaced with amendments to G. L. c. 234A. See St.
2016, 36, § 1 (approved February 10, 2016). Section 32 was not
retained in the amendments to G. L. c. 234A.
     10
       The truncated nature of the judge's findings leaves room
for misinterpretation. We take this opportunity to emphasize
the importance of making clear findings at each stage of the
Soares-Batson inquiry. See Commonwealth v. Rodriquez, 457 Mass.
461, 471 (2010); Agnes, Peremptory Challenges in Massachusetts:
Guidelines to Enable the Bench and the Bar to Comply with
Constitutional Requirements, 94 Mass. L. Rev. 81 (2012)
(including a checklist of findings). In the absence of such
findings, the judge's ruling receives no deference, and the
appellate court reviews the ruling de novo. See Rodriguez,
supra at 472-473.
                                                                   12


8, supra; note 12, infra, there are two possible interpretations

of the judge's ruling.    The first is that the experienced judge

raised, sua sponte, the issue of discriminatory peremptory

challenges.   He mentioned the possibility of both conscious and

unconscious bias -- clearly a nuanced approach to the

challenge.11,12   He made a finding of a pattern, and made findings

on genuineness and adequacy under the second prong of Soares-

Batson.   That is, he would have found the explanation inadequate

and therefore discriminatory if the defendant had been African-

American, but did not find the marginal reason offered to be

discriminatory where the defendant was white.    As the Supreme

Court stated in Powers, supra, "Racial identity between the

defendant and the excused person might in some cases be the

explanation for the prosecution's adoption of the forbidden

stereotype, and if the alleged race bias takes this form, it may

provide one of the easier cases to establish both a prima facie

case and a conclusive showing that wrongful discrimination has

occurred.   But to say that the race of the defendant may be

     11
       Later, during the colloquy concerning juror 179, the
judge stated that there was no "racial issue" in the case, but
went on to consider other aspects of the challenge, thus
indicating that the race of the defendant was one factor he
would consider. The judge specifically described the sexual
orientation of juror 179 as "a factor." See note 12, infra.
     12
       The judge also conducted a voir dire of the jurors to
identify any bias on the basis of sexual orientation, and
instructed the jurors that sexual orientation should not play a
role in their deliberations.
                                                                    13


relevant to discerning bias in some cases does not mean that it

will be a factor in others, for race prejudice stems from

various causes and may manifest itself in different forms."        Id.

at 416.     One possible view of the judge's ruling is that it was

not based on an error of law or impermissible considerations.

       Alternatively, even if we were to read the judge's ruling

to give inadequate consideration to the juror's right to sit, or

to a white defendant's entitlement to raise a Batson challenge

(as the defendant urges us to do), counsel's failure to object

to the judge's ruling poses an additional appellate challenge.13

Batson held that, on remand, if the prosecution's peremptory

challenges were found to be discriminatory, relief would be

required without a showing of prejudice.     Batson, 476 U.S. at

100.    However, in Batson there was "timely objection."   Ibid.

In the absence of objection, "even structural errors can be

waived when they are not properly preserved."    Commonwealth v.

Petetabella, 459 Mass. 177, 186 n.9 (2011) (in dicta, discussing

waiver of exclusion of women from jury).14    Cf. Commonwealth v.


       13
       The defendant argues, without citation to authority, that
the fact that the judge raised the issue is sufficient to
preserve it. However, his objection on appeal is not to the
fact that the judge raised the issue, but to how he ruled on it.
The defendant was obligated to object to the judge's ruling "at
the time the ruling or order of the court is made or sought."
See Mass.R.Crim.P. 22, 378 Mass. 892 (1979).
       14
       The defendant asserts that he is entitled to relief
without a showing of prejudice because racial bias in jury
                                                                 14


Burnett, 428 Mass. 469, 476 (1998) (waiver of error in

reasonable doubt instruction; "structural error objections can

be waived"); Commonwealth v. Vargas, 475 Mass. 338, 357 (2016)

and cases cited (waiver of right to public trial).   Here the

defendant did not object at any time during trial, and did not

signal in any way that he was dissatisfied with the judge's

decision.




selection is structural error -- a question we need not reach in
light of our disposition. The United States Supreme Court has
not explicitly held that Batson error is structural error,
although several Federal cases have touched on the question.
See, e.g., Winston v. Boatwright, 649 F.3d 618, 628-629 (7th
Cir. 2011) (erroneous denial of defendant's Batson objection is
structural error). Cf. Vasquez v. Hillery, 474 U.S. 254, 263-
264 (1986) ("discrimination [on the basis of race] in the
[selection of the] grand jury undermines the structural
integrity of the criminal tribunal itself, and is not amenable
to harmless-error review"); Batson, supra at 84 n.3, quoting
from Alexander v. Louisiana, 405 U.S. 625, 626 n.3, (1972) ("The
basic principles prohibiting exclusion of persons from
participation in jury service on account of their race 'are
essentially the same for grand juries and for petit juries'").
But see Rivera v. Illinois, 556 U.S. 148 (2009) (erroneous
denial of defendant's peremptory challenge on Batson grounds is
not structural error). Several Federal circuit courts have held
that a Batson objection must be made during voir dire, or at the
latest before the venire has been dismissed, or it is waived.
See United States v. Reid, 764 F.3d 528, 533 (6th Cir. 2014)
(and cases cited).

     As a matter of State law, the Supreme Judicial Court has
held that "structural error is error that denies a defendant his
right to an impartial adjudicator, be it judge or jury."
Commonwealth v. Hampton, 457 Mass. 152, 163 (2010) (quotation
and citation omitted). Structural error exists where it is
shown that a seated juror was biased. Ibid. The court has not
addressed whether improper jury selection criteria based on a
protected class is structural error. Id. at 163 n.9.
                                                                   15


    Accordingly, even if there were error, the objection was

waived.    We review for a substantial risk of a miscarriage of

justice.   See generally Commonwealth v. Berardi, 88 Mass. App.

Ct. 466, 473 (2015).     There is no evidence of the racial

composition of the venire or the jury panel.     There is no

evidence that the jury seated was unrepresentative, unfair, or

biased in any way.      The defendant has not shown that there is a

"serious doubt" as to the impartiality of the jury, and has

therefore not demonstrated a substantial risk of miscarriage of

justice.   See Commonwealth v. Millien, 474 Mass. 417, 432

(2016).

    b.     Juror 179.   On the first day of jury empanelment, juror

179, a gay African-American man, was seated on the jury without

challenge.    On the second day of empanelment, after the

Commonwealth had an opportunity to check the probation records

of the jurors seated on day one, the Commonwealth alerted the

judge that juror 179 had a more extensive criminal record than

he had reported.     The defendant stated on his juror

questionnaire that he had been charged with disorderly conduct,

a charge which was dismissed.     However, his probation record

revealed that he had also been charged with several other

crimes, including four assault and battery offenses, one with a

dangerous weapon; two larceny offenses; a compulsory insurance

violation; a number plate violation; resisting arrest; and
                                                                  16


malicious destruction of property, all of which had been

continued without a finding, dismissed, or withdrawn.     Two

restraining orders had been issued against him.

     The judge conducted a voir dire of the prospective juror.

When asked about the other charges, juror 179 responded that he

did not list them in the questionnaire because they had been

dismissed.   The Commonwealth exercised a peremptory challenge,

arguing that the omissions were substantial, and the restraining

orders were not reported at all.   The defendant objected, noting

that the restraining orders "go back six, seven years," that it

was understandable for juror 179 to omit charges that were

dismissed or withdrawn, and that "one gay on the jury would be,

you know, helpful to talk with the jury."

     The judge concluded that the reason given by the prosecutor

was the true reason for the challenge, was based solely on the

juror's inaccurate reporting, and was not a pretext for

discrimination on the basis of sexual orientation.15    These


     15
       The judge made initial findings after hearing from the
prospective juror. "The record should reflect that [juror 179]
appears to be an African American gentleman. We don’t have any
racial issue in this case. To my understanding, the defendant
is Caucasian, and I gather Mr. Taylor is Caucasian as
well. . . . I think I remember [juror 179] saying he was
gay. . . . So, that seems to me a factor in scale [sic]
here. . . . [T]his is a case involving apparently at least the
defendant, who is homosexual, and I gather there's going to be
some dispute about whether or not Mr. Taylor was heterosexual or
homosexual. And, so, this is a bit sensitive."
                                                                   17


findings addressed both the soundness of the rationale

proffered, and the genuineness of the reasons given.     The

reasons were specific to the juror and unrelated to whether he

was gay16 or black.   In light of the nature of the offense, the

omission of the restraining orders was particularly relevant.

The judge did not abuse his discretion in excusing the juror.

See Rodriguez, 457 Mass. at 473-474 (dismissal of juror for



     After hearing from the parties, the judge made further
findings on the record: "[I]s the peremptory grounded in some
way in a demographic type characteristic, here sexual
preference[?] . . . I find under the [Supreme Judicial Court]
case that requires me to evaluate both the ground asserted here
as well as the truthfulness of the ground asserted, I find that
the ground asserted is the actual ground on which [the
prosecutor] puts forward the challenge. I do not think it's a
pretext to challenge a man who happens to be homosexual. I
think it's grounded legitimately in the accuracy of his report
on the [probation record], and I find no reason to doubt the
sincerity of the government’s challenge. So, I am going to
permit that challenge. . . . I find, that the government's
challenge is not based on the juror's expressed sexual
preference, but rather is grounded solely in the juror's
unreliability, inaccurate report of his prior experience with
the criminal justice system."
     16
       The scope of protection under Soares extends to all
groups falling under the Equal Rights Amendment, that is group
affiliation based on "sex, race color, creed or national
origin." Soares, 377 Mass. at 488 n.33, quoting from Article I
of the Declaration of Rights of the Constitution of the
Commonwealth, as amended by art. 106 (1976). The judge
considered the applicability of Soares and concluded that Soares
should apply to peremptory challenges based on sexual
orientation. Because the challenge here was proper, we assume,
without deciding, that Soares also extends to sexual
orientation. Cf. SmithKline Beecham Corp. v. Abbott Labs., 740
F.3d 471, 486 (9th Cir. 2014) (extending Batson to peremptory
challenges based on sexual orientation under the Federal equal
protection clause).
                                                                   18


failing to disclose her own experience with violent crime and

her son's prior criminal record).

     2.   Ineffective assistance of counsel.   The defendant

argues that defense counsel's "weird and bigoted dwelling on

defendant's homosexuality" in his opening statement and closing

argument constituted ineffective assistance of counsel.17

     The prosecutor began her opening statement with the

following sentence:   "Ladies and gentlemen, words cannot prepare

you for what you are about to hear."   She then summarized the

facts in outline form, emphasizing the nonconsensual sex between

the defendant and Taylor, and the abandonment of Taylor beneath

the house.   Defense counsel sought to undercut the prosecutor's

portrayal of his client, describing him as a "[m]arginally

retarded" individual who had been taken advantage of by Taylor.

However, after suggesting that the facts were embellished by the

prosecutor, defense counsel went on to say:

     "However, what the evidence will show, and you should
     prepare yourselves, will be a descent into obscure
     obsolescence of the abnormal psychology variety. This is a
     case of homosexual behavior and alcoholism. That's really
     what the case is about, and certainly when the [c]ourt, His
     Honor, Judge Brassard, asked you about homosexual behavior
     and that variety, he said, well, it may contain the
     evidence the way it is. I mean, that is the behavior of
     gay, homosexual men. . . . Anyway, for whatever
     disconcerting and sexual behavior you will hear -- and it

     17
       The word "homosexual" was used by counsel and the judge
at trial. We quote the term when so used, noting that the word,
by contrast to "gay" or "same sex," may carry a negative
connotation for some.
                                                                  19


    is lewd, it is sometimes open and lascivious in public. It
    is disgusting, obscene, you know, beyond reason even of any
    heterosexual act when in public. But in private, it is what
    it is. However, with any of those acts, it never broke up
    the couple. They were bombed out of their minds in
    Braintree, in East Boston, in Revere, in Quincy, a lot."
    (Emphasis added.)

    In his closing argument, defense counsel again returned to

this theme, asking the jury not to be distracted by the

testimony concerning sexual conduct, and to focus solely on the

murder charge.   However, as he did in his opening statement,

defense counsel continued to make additional remarks.

    "Ladies and gentlemen of the jury, when I made an opening
    statement to you I told you that we would be descending
    into the depravity area of the world into some form of
    abnormal psychology. Well, we did and certainly a lot of
    that is propelled by the evidence proffered by the
    government. And there was a lot of, you know, lewd,
    lascivious, florid, obscene behavior. And they brought it
    out anyway. . . .

    "And we’ve heard, well, every part of the disparaging
    aspect of it all that we could see. Trying to make Mr.
    Lacoy a demon. Loathsome, diabolical, malevolent,
    horrible, horrible, evil. It has nothing to do with the
    elements of homicide. Not all. They know it. Shoved it
    into your face anyway. Please, don’t fall for that. Don't
    fall for that. It's a common sense case, please, got to
    get it out of your mind. It's for another day. Today,
    it's homicide. It's about the story in the bedroom."
    (Emphasis added.)

    "[T]he burden of proving ineffectiveness rests with the

defendant."   Commonwealth v. Kolenovic, 471 Mass. 664, 673

(2015) (Kolenovic), quoting Commonwealth v. Montez, 450 Mass.

736, 755 (2008).   "Counsel is ineffective where his conduct

falls 'below that which might be expected from an ordinary
                                                                  20


fallible lawyer' and prejudices the defendant by depriving him

'of an otherwise available, substantial ground of defence.'"

Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013), quoting from

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).   In assessing

the second prong of Saferian, "a defendant is entitled to a new

trial 'if we have a serious doubt whether the result of the

trial might have been different had the error not been made.'"

Millien, 474 Mass. at 432, quoting from Commonwealth v. Azar,

435 Mass. 675, 685 (2002).

     It is evident even from the bare record that counsel's

choice was a tactical one.18   Faced with the likelihood that the

relationship between the two men, the sexual assaults, and the

abandonment of the dying Taylor would all come in to evidence,

defense counsel made a tactical decision to try to deflate those

arguments from the beginning, and again at the end, with his

admonition not to "fall for that."19   See Commonwealth v.


     18
        Although we disfavor claims of ineffective assistance on
direct appeal of a defendant's conviction, there is a narrow
exception for a "claim of ineffective assistance [which] may be
resolved on direct appeal . . . when the factual basis of the
claim appears indisputably on the trial record." Commonwealth
v. Zinser, 446 Mass. 807, 811 (2006) (quotation and citation
omitted). Compare Commonwealth v. Lane, 462 Mass. 591, 598-599
(2012).
     19
       The Commonwealth had also suggested during the course of
the motions in limine that it would consider introducing
evidence of sex in public places. Counsel also anticipated that
evidence in his opening statement, but did not return to it in
closing argument, because no such evidence was admitted.
                                                                      21


Beauchamp, 49 Mass. App. Ct. 591, 612 (2000) ("Counsel's opening

was a reasonable strategy in light of his realization that the

Commonwealth would inevitably make the jury aware of that

testimony")   Cf. Commonwealth v. Durakowski, 58 Mass. App. Ct.

92, 93 (2003) ("a defendant is not necessarily deprived of a

defense when some guilt is conceded").

    "Where, as here, the defendant's ineffective assistance of

counsel claim is based on a tactical or strategic decision, the

test is whether the decision was manifestly unreasonable when

made."    Kolenovic, supra at 674 (quotations and citation

omitted).    While the strategic decision itself may have been a

reasonable one, we understand the argument on appeal to be that

the manner of making the argument was manifestly unreasonable,

because it indulged in gross and discriminatory stereotype, and

was condemnatory of the defendant.    We do not condone

presentation of incompetent generalizations and baseless, florid

characterizations that did not have, and would not reasonably be

expected to have, any factual basis in the evidence.      See Mass.

R. Crim. P. 24, 378 Mass. 895 (1979); Reporters' Notes to Rule

24, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at

1605-1606 (LexisNexis 2015).   See also Mass. G. Evid. § 1113

(a)(1) (2016), and Note, citing Commonwealth v. Fazio, 375 Mass.

451, 454 (1978), and Commonwealth v. Croken, 432 Mass. 266, 268

(2000).   However, even if we assume that this much of the
                                                                    22


strategic judgment regarding the manner of presentation was

manifestly unreasonable when made, the evidence was quite simply

overwhelming.   The defendant's prior recorded statements, his

emails, his efforts to cover up and mislead, and his admissions

at trial provided ample basis for the conviction, and we do not

have a serious doubt as to whether the result of the trial would

have been different if the offending statements had not been

made.20

     3.   Prior bad acts.   The defendant contends that the judge

erred in allowing the Commonwealth to admit evidence of prior

bad acts that showed that the defendant had sexually assaulted

Taylor on several occasions.   The defendant points to four

instances of prior bad acts:    (1) about one year before the


     20
       Relying on United States v. Cronic, 466 U.S. 648, 659
(1984), the defendant asserts that no showing of prejudice is
required because counsel's performance was so deficient as to
create a conflict of interest and deprive him of counsel. See
Commonwealth v. Mosher, 455 Mass. 811, 819 (2010) (no showing of
prejudice required under art. 12 where counsel has a conflict of
interest). Constructive deprivation of counsel based on a
conflict of interest is narrowly construed. Id. at 820.
Counsel here had no conflict of interest as the cases define it,
participated fully in the trial, cross-examined witnesses, and
presented a defense. This is not a case of "[a]ctual or
constructive denial of the assistance of counsel altogether."
Perry v. Leeke, 488 U.S. 272, 280 (1989), quoting Strickland v.
Washington, 466 U.S. 668, 692 (1984). Nor is it a case where
counsel was sleeping or absent, or where there was "a complete
failure to subject the prosecution's case to adversarial
testing." Scarpa v. Dubois, 38 F.3d 1, 12 (1st Cir. 1994) (and
cases cited). Counsel did not "align[] himself with the
prosecution against his own client." Rickman v. Bell, 131 F.3d
1150, 1159 (6th Cir. 1997).
                                                                  23


killing, the defendant "attempted to open the person's pants"

while that person was sleeping, and that person "woke up,

screaming and yelling, I'm not gay, you don't do that, I'm not

into that"; (2) the defendant "knew [that Taylor] was a

[heterosexual] guy but he liked having sex with [Taylor]"

anyway; (3) the defendant's admission on cross-examination that

on several occasions he had sexually assaulted Taylor after

Taylor had "blacked out" from drinking excessively; and (4) the

underwear that was found on Taylor's corpse was torn on the

backside.21

     "Evidence of a defendant's prior . . . bad acts is

inadmissible for the purpose of demonstrating the defendant's

bad character or propensity to commit the crimes charged. . . .

However, such evidence may be admissible . . . 'to establish

motive, opportunity, intent, preparation, plan, knowledge,


     21
       Although these evidentiary issues were addressed in
various motions in limine, the only objection made at trial
concerning this prior bad acts evidence was an objection to the
admission of photographic evidence depicting the torn underwear.
Therefore, the defendant's arguments as to the other prior bad
acts evidence have been waived, and we review for error and, if
error, for a substantial risk of a miscarriage of justice. See
Commonwealth v. Whelton, 428 Mass. 24, 25 (1998) ("a motion in
limine, seeking a pretrial evidentiary ruling, is insufficient
to preserve appellate rights unless there is an objection at
trial"). We note that this rule of preservation has been
changed for cases tried since the issuance of Commonwealth v.
Grady, 474 Mass. 715, 719 (2016) ("Going forward, . . . [w]e
will no longer require a defendant to object to the admission of
evidence at trial where he or she has already sought to preclude
the very same evidence at the motion in limine stage").
                                                                   24


identity, or pattern of operation.'"   Commonwealth v. Crayton,

470 Mass. 228, 249 (2014) (Crayton), quoting from Commonwealth

v. Walker, 460 Mass. 590, 613 (2011) (Walker).   "Other bad acts"

evidence should be excluded where "the risk of unfair prejudice

outweighs its probative value."   Crayton, supra at 249 n.27.

     Before trial, the Commonwealth moved to admit the evidence

to show the relationship between the defendant and Taylor.      The

Commonwealth argued, and the judge agreed, that the evidence

that the defendant sexually assaulted Taylor and may have

sexually assaulted another individual, was relevant to the

defendant's state of mind and intent, and was not unduly remote.

The evidence was directly relevant to the Commonwealth's theory,

namely that the defendant was angry at Taylor for "leeching" off

him and for refusing to engage in consensual sex with him, and

to rebut the defenses of self-defense and accident.    See

Commonwealth v. Butler, 445 Mass. 568, 574-575 & n.6 (2005) (and

cases cited) (hostile nature of relationship).   Cf. Commonwealth

v. Sharpe, 454 Mass. 135, 144 (2009) (Sharpe) (evidence of abuse

of a former girlfriend admissible in first degree murder case of

current girlfriend to show pattern of hostility based on

arguments over money and progression of violence).22   The judge


     22
       With respect to the evidence of the assault on an
unidentified person, neither party argued this evidence to the
jury, and the jury were not informed whether the person was
Taylor or a third party. For the reasons stated in Sharpe, the
                                                                  25


clearly instructed the jury regarding the proper use of the

evidence on two occasions, i.e., during the presentation of the

evidence and before deliberations.    "We leave to the judge's

sound discretion whether the probative value of the evidence

outweighs the risk of unfair prejudice. . . . and conclude that

the judge did not abuse his discretion by admitting this

testimony."   Walker, supra at 613 (citation omitted).

    4.   Jury instructions.   The defendant asserts that the

judge erred by declining to give an instruction on sudden combat

and on involuntary manslaughter.     The judge instructed the jury

on self-defense, accident, and manslaughter by reason of

provocation and use of excessive force in self-defense.

    Sudden combat has been described as follows: "[w]hen 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 . . . ."



evidence was admissible to show the defendant's pattern and
course of conduct. Additionally, the testimony was brief, no
emphasis was placed on it by the Commonwealth in its closing
argument, and the evidence paled in comparison to the
defendant's explicit admission that he sexually assaulted Taylor
when he had passed out.
                                                                   26


Commonwealth v. Rodriquez, 461 Mass. 100, 107 (2011), quoting

from Commonwealth v. Webster, 5 Cush. 295, 308 (1850).       The

defendant's testimony, that Taylor attacked him and then "fell"

into the knife by "accident," was inconsistent with a theory of

sudden combat.   See ibid.

    "Involuntary manslaughter is an unlawful homicide

unintentionally caused by an act which constitutes such a

disregard of probable harmful consequences to another as to

amount to wanton or reckless conduct."    Commonwealth v. Life

Care Centers of America, Inc., 456 Mass. 826, 832 (2010)

(quotation and citation omitted).   "Although our cases state

frequently that the essence of wanton or reckless conduct is

intentional conduct, . . . reckless conduct does not require

that the actor intend the specific result of his or her conduct,

but only that he or she intended to do the reckless act. . . .

Accordingly, when we refer to the intent required to support a

conviction of involuntary manslaughter, we refer to the intent

to perform the act that causes death and not the intent that a

death occur."    Ibid. (citations and quotations omitted).     As the

judge noted at trial, the defendant testified that he did not

intend to stab the victim.   This testimony supported the defense

of accident, but did not form the basis for asserting that he

engaged in conduct which involved a high degree of likelihood

that substantial harm will result to another.    Id. at 836 ("the
                                                                27


crime of involuntary manslaughter requires an act taken in

disregard of a high probability of harm to others so that the

act is wanton or reckless").

    There was no error in declining to give the instructions.

                                   Judgment affirmed.
