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2017-07

Commonwealth v. Veiovis , 477 Mass. 472 ( 2017 )

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SJC-12017
COMMONWEALTH   vs.   CAIUS VEIOVIS.
Berkshire.       November 10, 2016. - July 19, 2017.
Present:   Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.
Homicide. Evidence, Photograph, Relevancy and materiality,
Inflammatory evidence, Prior misconduct, Identity, State of
mind, Motive. Practice, Criminal, Capital case, Argument
by prosecutor, Instructions to jury.
Indictments found and returned in the Superior Court
Department on October 6, 2011.
The cases were tried before C. Jeffrey Kinder, J.
Dana Alan Curhan (Christie L. Nader also present) for the
defendant.
David F. Capeless, District Attorney for the Berkshire
District, for the Commonwealth.
GANTS, C.J.     The defendant was found guilty by a Superior
Court jury on three indictments charging murder in the first
degree on the theory of deliberate premeditation for the grisly
2
killing of David Glasser, Edward Frampton, and Robert Chadwell.1
The Commonwealth's theory of the case was that the defendant
participated in these killings with Adam Lee Hall and David
Chalue to prevent Glasser from testifying against Hall in two
criminal cases.   They kidnapped Frampton, who was Glasser's
roommate, and Chadwell, who was Glasser's neighbor, simply
because Frampton and Chadwell had the misfortune of being in
Glasser's apartment when they entered to kidnap and later kill
Glasser, and then killed Frampton and Chadwell to ensure their
silence regarding the kidnapping and killing of Glasser.     After
the three victims were killed, the defendant, Hall, and Chalue
dismembered their bodies and placed the body parts in plastic
bags, and Hall arranged for the burial of the plastic bags.2
The defendant presents four primary claims on appeal:     (1)
that the evidence of his knowing participation in these crimes
was insufficient as a matter of law to support his convictions;
(2) that the judge abused his discretion in admitting evidence
of other acts the probative value of which was outweighed by the
risk of unfair prejudice; (3) that the judge abused his
discretion in admitting in evidence a statement by the defendant
1
The defendant was also found guilty on three indictments
charging kidnapping and three indictments charging witness
intimidation.
2
Adam Lee Hall and David Chalue were found guilty of the
three murders in separate trials that preceded the defendant's
trial.
3
regarding the scars on his right arm; and (4) that the
prosecutor presented facts in closing argument that were not
supported by the evidence at trial.    We affirm the convictions
and conclude that the defendant is not entitled to relief under
G. L. c. 278, § 33E.
Background.     Because the defendant challenges the
sufficiency of the evidence at trial, "we recite the evidence in
the Commonwealth's case-in-chief . . . in the light most
favorable to the Commonwealth."    Commonwealth v. Penn,

472 Mass. 610

, 611-612 (2015), cert. denied,

136 S. Ct. 1656

 (2016).     We
focus primarily on the evidence implicating the defendant in the
joint venture, because the defendant does not dispute that there
was abundant evidence that Hall and Chalue participated in the
killings.
The circumstances leading up to the killings began in July,
2009, when Hall beat Glasser with a baseball bat because he
believed that Glasser had stolen and sold motor vehicle parts
that belonged to Hall.    While Glasser was being interviewed by a
State police trooper two days later, Hall threatened Glasser in
a telephone call.    The State police arrested Hall that day and
recovered a baseball bat from Hall's vehicle.
In July, 2010, while the charge against Hall of assault and
battery by means of a dangerous weapon was pending, Hall
concocted a scheme to discredit Glasser by framing him on a
4
false kidnapping charge.   As part of this scheme, a friend of
Hall, Nicole Brooks, falsely reported to the police that Glasser
kidnapped her and shot at her when she escaped; another friend
of Hall, Scott Langdon, planted Brooks's wallet and a revolver
in Glasser's truck, where they were found by police during a
search of the truck.   The scheme resulted in Glasser's arrest,
but the police soon exonerated Glasser and brought criminal
charges against Hall and those who participated with him in the
scheme.
The defendant began spending time with Hall and Chalue in
the latter half of August, 2011.   Hall was a "sergeant [at]
arms" in a local chapter of the Hells Angels motorcycle club and
was described as an "enforcer."    The defendant was not a member
of the Hells Angels, but there was evidence that he wanted to
be.   He began to wear a vest with a Hells Angels insignia on the
front and kept a Hells Angels sticker in his Jeep and apartment.
Hall told a witness in the defendant's presence of the
possibility that the defendant would get a motorcycle and become
a prospective member of the Hells Angels.   The defendant's
employer told the police that the defendant had wanted to
establish credit because he wanted to buy a motorcycle and that
"you cannot be in the Hells Angels without buying the
motorcycle."
5
The time line of events before and after the killings is
important in evaluating the weight of the evidence implicating
the defendant as a participant in the killings.    On Friday,
August 26, 2011, Hall picked up a friend, Katelyn Carmin, in the
tan Buick vehicle3 he had purchased earlier that month; the
defendant and Chalue were with him.   While driving around to
various bars, Hall went into a tirade about a person he called
"Drummer Dave,"4 who he said had robbed him and then "snitched"
on him.   Hall said he was "going to kill that motherfucker."
The defendant, along with Chalue, responded to Hall by assuring
him that Hall will "get him."   Later that evening, they drove to
the Hells Angels clubhouse in Lee, where they rode in an all-
terrain vehicle.   Hall told Carmin to be careful because he
needed the defendant and Chalue for "a job."
On Saturday, Hall was seen outside the building where the
defendant's girl friend resided, talking to the defendant while
sitting in the girl friend's pickup truck.     In the early
3
The Buick at other times during the trial was described as
gold in color.
4
Andrew Johnston, a childhood friend of Robert Chadwell,
testified that people often referred to David Glasser by his
5
nickname, "Drummer Dave."       There was some confusion as to
the color of the vehicle that was at Rose Dawson's residence at
1:30 A.M. Edwin Sutton, Rose's father described it as a Jeep
Wrangler and testified that, although he was not sure, he
thought it might have been yellow. Ocean Sutton, one of Edwin's
daughters, described it as a green Jeep Wrangler. The
defendant's Jeep is black.
6
afternoon, Hall, Chalue, and the defendant went to a party held
by the Springfield chapter of the Hells Angels at a tavern in
Springfield; Hall and the defendant left the party together
early in the afternoon and returned at approximately 4:30 P.M.
Hall, Chalue, and the defendant left the tavern together at
approximately 6:30 P.M., and drove away in Hall's Buick.     Later
that evening, Hall, Chalue, and the defendant were at the Hells
Angels clubhouse in Lee; they left later to go to the
defendant's house in Pittsfield.   Hall drove to the defendant's
home in his own vehicle but first stopped at Steven Hinman's
home in Lenox.   Hall showed Hinman a .45 semiautomatic pistol
that he had in his vest, as well as a "dog food bag" that
contained a .44 Magnum revolver, a sawed-off AR-15-type weapon,
and a small revolver.
The defendant and Chalue traveled to the defendant's home
with two women, Allyson Scace and Kayla Sewall, in Sewall's
vehicle after stopping at a liquor store.   When Hall arrived at
the defendant's home, he pulled the firearms out of the dog food
bag and asked the defendant where he kept brake cleaner and
gloves.   The defendant directed him to a cabinet and went
upstairs with Sewall.   While they were upstairs, Hall and Chalue
disassembled and cleaned the firearms.   The defendant asked
Sewall to stay, but she declined and left with Scace at
7
approximately 9 P.M., leaving Hall, Chalue, and the defendant
alone in the apartment.
The kidnapping of the three victims in Glasser's apartment
in Pittsfield occurred shortly before midnight that Saturday or
early Sunday morning.     Glasser's upstairs neighbor asked Glasser
to move his truck at approximately 10:30 P.M. that Saturday, and
saw the three victims (and a fourth man) in the kitchen of
Glasser's apartment at that time.    The last telephone call made
from Chadwell's cellular telephone was at 11:21 P.M.     Shortly
after midnight, the upstairs neighbor heard banging from the
front downstairs hallway, and heard the voices of Glasser and
Frampton, as well as some unfamiliar voices.    Hall later told a
friend, Rose Dawson, that, when they arrived at Glasser's
apartment, one of the victims was using a computer and another
was playing a video game.
The defendant's girl friend had returned from a hiking trip
on Friday night and was at her home on Saturday night.     She made
a telephone call to the defendant's cellular telephone at 12:09
A.M. on Sunday, but the defendant did not answer and she left a
voicemail message.   She sent him a text message on his cellular
telephone at 1:20 A.M., but received no reply.     She telephoned
him again at 1:40 A.M., and again left a voicemail message after
the call was not answered.
8
At approximately 1:30 A.M. on Sunday, Hall appeared at
Dawson's home in Pittsfield.   He asked to borrow Dawson's
cellular telephone, which she gave to him; he said he would be
back soon.   He entered the passenger seat of a vehicle described
as a Jeep Wrangler5 and left; the defendant owned a Jeep
Wrangler.
Hall was next seen at a convenience store in Pittsfield at
approximately 5:30 A.M., where he purchased three candy bars and
a pack of cigarettes.   Hall returned a few minutes later and
purchased a pack of Black and Mild cigars.   The police seized
the defendant's Jeep seven days later and subsequently searched
it; they found a Black and Mild cigar wrapper inside.   On
September 12, in a search of the defendant's apartment, to which
he had recently moved, the police found four or five Black and
Mild cigar wrappers in a duffle bag.
The store clerk observed that Hall had mud on his shirt and
that his boots and blue jeans were wet, as was the cash he
handed over to pay for the items.   Tropical Storm Irene had
reached western Massachusetts during the night, bringing heavy
rain and high winds for much of the night and into the morning.
5
There was some confusion as to the color of the vehicle
that was at Rose Dawson's residence at 1:30 A.M. Edwin Sutton,
Rose's father described it as a Jeep Wrangler and testified
that, although he was not sure, he thought it might have been
yellow. Ocean Sutton, one of Edwin's daughters, described it as
a green Jeep Wrangler. The defendant's Jeep is black.
9
Shortly thereafter, Hall returned to the Dawson residence
and parked his Buick on the front lawn.     The defendant's Jeep
arrived behind the Buick.    Hall walked from the Buick to the
Jeep and left in the Jeep.
At approximately 10:30 A.M., Hall returned to the Dawson
residence with Chalue and the defendant in the defendant's Jeep,
which Hall was driving.     Hall, who was wet and not wearing
shoes, asked Dawson and her friend, Alexandra Ely, who was
staying overnight with Dawson, to come to Hall's home to make
breakfast.   Hall gave them money, which was soaking wet, and
told them to buy breakfast food and bleach; he also told them to
wash their hands after handling the money.     As Dawson and Ely
drove to a supermarket in Hall's Buick, Hall telephoned Ely and
told her to skip the bleach and not look in a bag in the
vehicle.   They looked inside the bag and saw what looked like a
"batting glove or golf glove."
When they arrived at Hall's house, the defendant's Jeep was
parked in front; Hall, Chalue, and the defendant were inside.
Hall returned Dawson's cellular telephone to her and told her to
delete her call log and tell no one that he had borrowed it.
Chalue was in bed, and the defendant sat in a recliner
"sleeping" and looking "tired."     Dawson and Ely left later in
Hall's Buick to return home.     Hall, Chalue, and the defendant
retrieved the Buick from Dawson's home later that day.
10
At approximately 2 P.M., Hall arrived at the home of David
Casey in Canaan, New York, approximately eighteen miles from
Pittsfield, in the Buick.    Hall said that he was having trouble
with his vehicle and asked Casey if he knew anywhere nearby
where he could park it overnight.    Casey called a friend, Alan
Pavoni, who agreed to let Hall park the vehicle in Pavoni's
driveway in Becket.    Hall then told Casey that he had killed
Glasser, as well as "a fat guy" and a black man who were with
Glasser.   He explained that he had held Glasser down and pulled
the trigger, but the gun misfired.    As he tried to rechamber
another round, Glasser ran into the woods.    "Davey" ran after
him and shot him, but did not kill him.    "Davey" brought Glasser
back to Hall, who then shot him.     Hall said the other two men
were stabbed to death.    He said they thought the black man was
dead and left him but, when they came back, they saw him sitting
on a log, moaning.    Hall also said that they "chopped [the
victims] up," and added that "one of the guys really enjoyed
torturing and cutting them up."    Hall noted that it was "raining
very hard" while this was happening.
Hall asked if Casey was still working with an excavator at
a property in Becket, and Casey said that he was.     Hall then
asked if Casey would do him a favor; he wanted Casey to dig a
hole to bury the bodies.    Hall added that, if Casey did this
11
favor for him, he would not harm Langdon.6   Hall wanted to go
with him to dig the hole that day, but Casey said he would meet
him there on Monday morning.
Between 5 and 6 P.M., Hall drove his Buick to Pavoni's
property and parked it there; another person was with him in the
Buick.   A "Jeep-like vehicle" also arrived and picked up Hall.
Hall, Chalue, and the defendant were seen late in the
afternoon standing near the defendant's Jeep in the parking lot
of the apartment building in Pittsfield where the defendant's
girl friend resided.
Casey met Hall as scheduled at approximately 8:30 A.M. on
Monday at Pavoni's property.7   Hall was with a man he identified
as "Davey," whom Hall assured Casey he could trust because the
man was a member of the Aryan Brotherhood, and a person had to
kill someone to become a member; Casey identified this man at
trial as Chalue.   Hall opened the trunk of the Buick and said
that it was "starting to smell."   Hall later drove the Buick to
the property where Casey kept the excavator.   Casey used the
excavator to dig a large hole, and Hall opened the trunk and
6
David Casey testified that Scott Langdon was living with
and planned to marry Casey's sister. Casey knew that Langdon
was cooperating with the police regarding the pending charges
against Hall.
7
The defendant arrived for work as usual on Monday morning
at the design firm where he was employed as a gardener.
12
dropped a number of plastic garbage bags, which Hall said
contained body parts, into the hole.
On Monday afternoon, Hall and Chalue brought the Buick to a
salvage yard and sold it for scrap, where it was later placed in
a crusher.   The interior carpets were coated with liquid, the
back seat was mostly missing, and the carpet had been removed
from the trunk.   On Sunday, September 4, Hall, Chalue, and the
defendant drove past the salvage yard in the defendant's Jeep,
and then drove back in the other direction, arguably for the
purpose of checking to see that Hall's Buick had actually been
crushed.   After they were stopped by police at a nearby gasoline
station, the police seized and searched the Jeep, but found
nothing of evidentiary value.
On Friday, September 9, after Casey had revealed to police
the location of the bodies, the police dug up the plastic bags
containing the victims' body parts.    The autopsy of the body
parts revealed that all of the victims had been shot and
stabbed; their neck, arms, and legs had been removed, and two of
the bodies had been cut through the torso.    Most of the
dismemberment had been accomplished by chopping or hacking with
a sharp instrument such as a butcher knife.
On September 10, the defendant was arrested and brought to
the Pittsfield police station.   At the station, a State police
lieutenant told the defendant that he was protecting a "rat,"
13
referring to Hall, because Hall had offered to cooperate with
the Federal Bureau of Investigation regarding the Hells Angels
clubhouse in Lee a year earlier.     As the defendant was walking
back to his cell, the defendant said to Chalue, "[Y]ou hear what
they're saying about our partner?     They're saying he's a
stoolie."
On September 12, the police executed search warrants at two
apartments in the same building in Pittsfield:      an apartment
where the defendant lived and an apartment from which he had
recently moved.      In the apartment where he lived, among other
items that will be described later in this opinion, the police
found a September 6 edition of a newspaper with an article
describing the disappearance of the three victims, and an
article dated September 8, describing the search for the missing
men.
Discussion.   1.   Sufficiency of the evidence.   In reviewing
a claim of insufficiency of the evidence, we determine whether,
"after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt"
(emphasis in original).      Commonwealth v. St. Hilaire,

470 Mass. 338

, 343 (2015), quoting Commonwealth v. Latimore,

378 Mass. 671

, 677 (1979).     The defendant notes accurately that there was
no percipient witness who testified to the defendant's
14
participation in the killing and dismemberment of the three
victims, and no forensic evidence that linked him to the crimes.
Circumstantial evidence, however, "alone may be sufficient to
meet the burden of establishing guilt."     Commonwealth v. Woods,

466 Mass. 707

, 713, cert. denied,

134 S. Ct. 2855

 (2014).     We
conclude that the evidence was sufficient in this case to
support a finding beyond a reasonable doubt that the defendant,
with the intent to kill, knowingly participated in the
premeditated murder of the three victims.    See Commonwealth v.
Zanetti,

454 Mass. 449

, 467 (2009).
A reasonable jury could have found that the defendant was
aware on the Friday before the killings that Hall planned to
kill Glasser in order to silence him as a witness.    They also
could find that the defendant had a motive to assist Hall in
killing Glasser, because he wanted to be a member of the Hells
Angels chapter where Hall served as sergeant at arms, and
helping Hall in the killing would curry favor with Hall and
cause Hall to believe him worthy of trust.
On Saturday evening, shortly before the victims were
kidnapped and killed, the defendant was with Hall and Chalue at
the defendant's home when they disassembled and cleaned multiple
firearms that Hall had just brought.   At approximately the time
of the kidnappings and killings, the defendant failed to answer
two telephone calls and a text message from his girl friend.       As
15
described by Hall in his conversation with Casey, Hall, Chalue,
and a third assailant brought the victims to the woods in the
heavy downpour of the tropical storm, killed them, and
dismembered their bodies.8    It can reasonably be inferred that
the dismemberment of the victims took a substantial period of
time to accomplish and that it would have been bloody and messy
work in a tropical storm.     It is therefore probative that Hall
was a passenger in what reasonably could be inferred to be the
defendant's Jeep at approximately 1:30 A.M., when Hall stopped
at the Dawson residence.     It can also reasonably be inferred
that Chalue and the defendant were still with Hall at
approximately 5:30 A.M., because Hall purchased three candy bars
at the convenience store and a brand of cigars smoked by the
defendant.   This inference grows stronger when one considers
that the defendant's Jeep followed Hall when he dropped the
Buick off at the Dawson residence shortly after leaving the
convenience store, and that Hall immediately left in the Jeep.
Because nothing of evidentiary value was found in the Jeep, it
can be inferred that the victims' dismembered bodies by this
time were in the trunk of the Buick.     The defendant was still
8
Hall's statements to Casey were admissible for their truth
against the defendant because they were made to induce Casey's
cooperation in burying the bodies and therefore were made in the
course of and in furtherance of the joint venture. See
Commonwealth v. Winquist,

474 Mass. 517

, 522 (2016), and cases
cited.
16
with Hall and Chalue when they returned to the Dawson residence
at 10:30 A.M., with Hall now driving the defendant's Jeep, and
continued with them to Hall's house later that morning in the
Jeep, where the defendant appeared to be sleepy.
There was credible evidence that a third person
participated in the killings and dismemberments with Hall and
Chalue, and that the defendant was the only third person with
Hall and Chalue immediately before and immediately after the
killings.    Moreover, Hall was seen in the defendant's Jeep at or
around the time period when the bodies were likely being
dismembered.    If the defendant had not participated in the
killings, it is unlikely that he would have chosen to keep
newspaper articles about the disappearance and the search for
the victims in his apartment or that he would have referred to
Hall in a conversation with Chalue as "our partner."    In light
of this evidence, a reasonable jury could have found beyond a
reasonable doubt that the defendant was the third person who
participated in the killings and subsequent dismemberments.
2.   Admission of photographs of items found in defendant's
apartment.   The defendant argues that the judge abused his
discretion in admitting photographs of items found during the
search of the defendant's apartments because their probative
value was outweighed by the risk of unfair prejudice.    The
defendant moved in limine to bar these items from evidence, but
17
the judge denied the motion.    The objected-to photographs show
(1) anatomical drawings from a medical textbook with images of
human dissections and amputation of body parts, some of which
were presented as a collage hung on the wall; and (2) a machete,
a cleaver, hatchets, various knives, and a baseball bat with
spikes.
The nature of so-called prior bad act (or other act)
evidence under Mass. G. Evid. § 404(b) (2017) is that it
reflects badly on the character of the defendant and might show
a propensity to commit the crime charged, which poses a risk of
unfair prejudice to the defendant.    If it is offered solely for
that purpose, it is not admissible.    But if it is offered for a
purpose other than character or propensity, such as to establish
motive, opportunity, intent, preparation, plan, knowledge,
identity, or pattern of operation, the evidence is admissible
where its probative value is not outweighed by the risk of
unfair prejudice to the defendant.    See Commonwealth v. Crayton,

470 Mass. 228

, 249 (2014).     See also Commonwealth v. Drew,

397 Mass. 65

, 79 (1986), S.C.,

447 Mass. 635

 (2006), quoting
Commonwealth v. Bradshaw,

385 Mass. 244

, 269 (1982) (prosecution
may not introduce evidence that defendant previously misbehaved
for purpose of showing his or her bad character or propensity to
commit crime charged, but such evidence may be admissible if
"relevant for some other purpose"); Commonwealth v. Trapp, 396

18 Mass. 202

, 206 (1985) (prior bad act admissible where it is not
offered to demonstrate that defendant acted in conformity with
his or her past actions but rather to "prove a relevant
subsidiary fact").   See generally Mass. G. Evid. § 404(b).    We
give great deference to a trial judge's exercise of discretion
in deciding whether to admit a prior bad act, and we will
reverse for an abuse of discretion only where the judge made "'a
clear error of judgment in weighing' the factors relevant to the
decision, . . . such that the decision falls outside the range
of reasonable alternatives."   L.L. v. Commonwealth,

470 Mass. 169

, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co.,

512 F.3d 9

, 15 (1st Cir. 2008).
Here, there were three relevant, noncharacter purposes to
the admission of the amputation drawings and the collage of
anatomical drawings.   First, their admission was probative of
the identity of the defendant as the third man who participated
in the killings.   A critical piece of evidence in this case was
the statement made by Hall in furtherance of the joint venture
that "one of the guys really enjoyed torturing and cutting [the
victims] up."   Evidence that the defendant chose to put on his
wall anatomical drawings showing the dissection of the human
body and chose to possess drawings depicting the amputations of
arms and legs tends to identify the defendant as the person who
likely fit Hall's description of the third accomplice as someone
19
who enjoyed "cutting [the victims] up."   If Hall had said that
the third person who participated in the killings was fascinated
by medieval weapons, it would have been highly probative of
identity if one of his friends had photographs of such weapons
on his wall and a collection of such weapons on his mantel.       The
collage and drawings in the defendant's apartment are no less
probative of identity.
Generally, we characterize other act evidence that is
admissible to show identity as "modus operandi" evidence and
allow its admission only where "the prior events and the
circumstances of the crime charged have such similarities as to
be meaningfully distinctive" (citation omitted).    Commonwealth
v. Jackson,

417 Mass. 830

, 836 (1994).    See, e.g., Commonwealth
v. Holliday,

450 Mass. 794

, 815, 555, cert. denied sub. nom
Mooltrey v. Massachusetts,

555 U.S. 947

 (2008); Commonwealth v.
Montez,

450 Mass. 736

, 743-746 (2008).    The theory underlying
its admission is that the distinctive commonality between the
prior or subsequent conduct and the charged act creates "a
sufficient nexus to render the conduct relevant and probative"
on the issue of identity (citation omitted).    Commonwealth v.
Walker,

442 Mass. 185

, 202 (2004).   We require a tight nexus
because modus operandi evidence poses a high risk of unfair
prejudice in that it allows the jury to learn about prior or
subsequent bad acts of the defendant that are similar in nature
20
to the crime charged.   The commonalities among the crimes,
therefore, need to be so distinctive that their probative value
in identifying the defendant as the perpetrator of the crime
charged outweighs the substantial risk of unfair prejudice.
We do not suggest that the anatomical drawings found in the
defendant's apartment are admissible as modus operandi evidence.
The method or location of the amputations shown in the drawings
in the defendant's apartment are not so similar to the method or
location of the actual dismemberment of the victims as to permit
a finding that the drawings demonstrate the method of operation
of the dismemberment.   See Crayton, 470 Mass. at 251
(pornographic drawings found in defendant's jail cell not
admissible as evidence of modus operandi "where the drawings had
only a general similarity to the child pornography" found on
public library computer he was charged with having possessed).
Rather, the anatomical drawings are admissible as a
different species of identity evidence:   evidence of
idiosyncratic conduct by a defendant that, in light of the
specific evidence in a case, tends to identify the defendant as
the perpetrator of a crime.   Generally, the probative weight of
such identity evidence need not be as great as modus operandi
evidence because it does not involve the commission of similar
crimes, and therefore poses less risk of unfair prejudice
(although we do not minimize the risk of such prejudice arising
21
from the drawings in this case).   The probative weight of this
type of identity evidence depends on its connection to the other
evidence in the case that ties the idiosyncratic conduct to the
identity of the perpetrator, as in our medieval weaponry
example.9   Here, the anatomical drawings would not be admissible
as identity evidence if Hall had not identified the third
assailant as someone who enjoyed "cutting [the victims] up."
The drawings have probative weight as to identity only because
the drawings tend to identify the defendant as a person well
known to Hall who appeared to have an unusual interest in the
amputation and dissection of the human body.
Apart from identity, a second relevant, noncharacter
purpose for admitting the drawings is to show state of mind.
One of the extraordinary features of these killings is the
dismemberment of the victims, which appears to have had no
9
In dissent, Justice Lowy argues that our decision to admit
the anatomical drawings is improper because "the connection
between the defendant's other conduct and the charged conduct is
squarely based on an impermissible propensity inference." Post
at    . While the admission of any evidence that suggests the
defendant's bad character risks inviting the jury to draw the
improper inference that the defendant acted in conformity with
his past conduct, the admission of the drawings in this case is
not premised on such an improper inference. Rather, the
drawings invite the jury to conclude that the defendant matched
Hall's description of the third participant in the crime. While
it would be improper to admit the drawings for the purpose of
demonstrating that the defendant was predisposed to commit the
crime, there is nothing improper about asking the jury to infer
that the uncommon trait Hall attributed to the crime's third
participant is also attributable to the defendant.
22
pragmatic purpose and which must have taken a considerable
amount of time to complete, especially in the midst of a
tropical storm.   The collage and drawings in the defendant's
apartment are probative of the defendant's state of mind as a
person fascinated by amputation and human dissection, and of an
intent to seize the opportunity of these killings to engage in
actual amputations and human dissection.   Cf. Commonwealth v.
Howard,

469 Mass. 721

, 739-740 (2014) (confrontations between
defendant and victim three months prior to workplace shooting
and between defendant and another employee were relevant to
defendant's motive and state of mind).
Third, the motive for the killings was to silence Glasser,
who would have testified against Hall in two criminal cases, and
to silence the other two victims, who would otherwise have been
witnesses to Glasser's killing.   But these motives do not
explain the victims' dismemberment.   We have admitted other act
evidence where, without it, a crime may appear to be an
inexplicable act of violence.   See Commonwealth v. Marrero,

427 Mass. 65

, 68 (1998); Drew,

397 Mass. at 78-79

.   The defendant's
apparent fascination with amputation and human dismemberment
offers an explanation for what would otherwise be inexplicable.
Where there were three relevant, noncharacter purposes for
the admission of the anatomical drawings, the judge did not
abuse his discretion in ruling that, "[i]n light of the other
23
evidence in the case, I do believe they have some probative
value which outweighs the prejudicial effect."     In Commonwealth
v. Guy,

454 Mass. 440

, 443-444 (2009), we concluded that the
trial judge did not abuse his discretion where the probative
weight of the evidence was less compelling than it was here, and
where the risk of unfair prejudice was equally significant.
Where an apparently randomly chosen victim was murdered in a
park by stabbing, strangulation, and blunt trauma, we found no
abuse of discretion in the admission of evidence that the
defendant "spoke to coworkers about serial killings, and that he
often read books about murder and serial killings" (footnote
omitted).     Id. at 441, 443.   We concluded that evidence of the
defendant's fascination with murder "was relevant to the
defendant's motive and state of mind and to explain what
otherwise might be seen as an inexplicable act of violence."
Id. at 443.    We reach a comparable conclusion as to the
anatomical drawings in this case.
Our analysis is different with respect to the admission of
the photographs depicting the cutting objects found in the
defendant's apartment.     "A weapon that could have been used in
the course of a crime is admissible, in the judge's discretion,
even without direct proof that the particular weapon was in fact
used in the commission of the crime," because "[s]uch evidence
is relevant for demonstrating that the defendant had the 'means
24
of committing the crime.'"    Commonwealth v. Barbosa,

463 Mass. 116

, 122 (2012), quoting Commonwealth v. Ashman,

430 Mass. 736

,
744 (2000).   Based on the testimony of the medical examiner and
forensic anthropologist, the machete, cleaver, hatchets, and
various knives found in the defendant's apartment were
consistent with the types of tools used to dismember the
victims, and could have served as the means to accomplish the
dismemberment.    Although they tested negative for blood at the
time of the search of the defendant's apartment on September 12,
approximately two weeks after the killings, and therefore were
not seized for further testing, they could not reasonably be
excluded as weapons that were used in the commission of the
dismemberment.    Therefore, we conclude that the judge did not
abuse his discretion in admitting the photographs of the
machete, cleaver, hatchets, and knives.
In contrast, the judge did abuse his discretion in
admitting the spiked baseball bat, which had no probative value
and posed a needless risk of unfair prejudice.    "Where a weapon
definitively could not have been used in the commission of the
crime, we have generally cautioned against admission of evidence
related to it."   Barbosa, 463 Mass. at 122, citing Commonwealth
v. Toro,

395 Mass. 354

, 357-358 (1985).    Because there was no
evidence that the baseball bat with spikes could have been used
in the commission of the killings or the dismemberments, we
25
conclude that the judge erred in admitting the photograph
depicting it.    We also conclude that, given the other admissible
evidence depicting what was found in the search of the
defendant's apartment, the error was not prejudicial.
Commonwealth v. Graham,

431 Mass. 282

, 288, cert. denied,

531 U.S. 1020

 (2000), quoting Commonwealth v. Flebotte,

417 Mass. 348

, 353 (1994) (error not prejudicial "if we are sure that the
error did not influence the jury, or had but very slight
effect").
We note that the defendant, although he unsuccessfully
moved in limine to exclude this other act evidence and timely
objected to its admission, did not seek a limiting instruction
regarding the jury's consideration of this evidence, and the
judge did not give one.    As a result, the jury were not told
that this evidence may not be considered by them as evidence of
the defendant's bad character or his propensity to commit the
crimes charged.10   See Massachusetts Superior Court Criminal
Practice Jury Instructions §§ 7.7.2, 7.7.3 (Mass. Cont. Legal
Educ. 2013).    Because there was no motion for a new trial, we do
not know whether the absence of a request for a limiting
instruction arose from a tactical choice by defense counsel not
to focus the jury's attention on this evidence, or from an error
10
The judge did instruct the jury that the defendant's
affiliation with the Hells Angels may not be considered as
evidence of a bad character or a criminal personality.
26
of judgment by counsel.   Regardless, we review the absence of
such a limiting instruction under G. L. c. 278, § 33E, to
determine whether it created a substantial likelihood of a
miscarriage of justice.   See Commonwealth v. Sullivan,

436 Mass. 799

, 809 (2002) (substantial likelihood of miscarriage of
justice standard applied to absence of limiting instruction in
case of murder in first degree).   See also Commonwealth v.
Roberts,

433 Mass. 45

, 48, 61 (2000).
The jury are always free to consider evidence without
limitation whenever a judge fails to give a limiting instruction
under Mass. G. Evid. § 404(b), but we do not always conclude
that the absence of such an instruction creates a substantial
likelihood of a miscarriage of justice.   See Commonwealth v.
Morgan,

460 Mass. 277

, 290 (2011).   One factor in considering
whether its absence produced a substantial likelihood of a
miscarriage of justice is whether the prosecutor in his or her
closing argument misused the other act evidence to invite the
jury to consider it as proof of the defendant's bad character or
propensity to commit the crime.    Cf. Commonwealth v. McCowen,

458 Mass. 461

, 479-480 (2010) (prior bad act evidence not
mentioned in prosecutor's closing argument).   In Guy, 454 Mass.
at 443-444, we noted that "[t]he prosecutor elicited the
testimony and referred to it in his closing in a technical,
analytical manner, without drama or undue emphasis that might
27
have released its potential for unfair prejudice."     The same
could be said here; the prosecutor did not speak of this
testimony in his closing argument, and alluded to it only when
he argued that the murders were not just an attempt to keep
three men from testifying in court "but of satisfying some
retribution and intent to take apart humanity piece by
piece. . . .     [T]he defendant, quote, really enjoyed torturing
and cutting them up."     In short, the prosecutor alluded to this
evidence for its relevant, noncharacter purposes.     Where those
purposes were themselves compelling, the absence of a limiting
instruction did not create a substantial likelihood of a
miscarriage of justice.
3.   Statement by defendant regarding scars on his right
arm.    Hinman testified that, on an unspecified date, Hall
brought the defendant to Hinman's property, and Hinman stared at
the scars on the defendant's right arm.     Over objection, Hinman
testified that the defendant told him, "See these scars[;]
imagine what I can do to somebody else."     The defendant contends
that the judge abused his discretion in determining that the
probative weight of this statement outweighed the risk of unfair
prejudice, and consequently admitting it in evidence.
We recognize that this statement generally would be
relevant only for the forbidden purpose of suggesting the
defendant's violent character and his propensity to commit acts
28
of violence, and therefore would be inadmissible.    But in the
unusual context of this case, it, like the collage of human
dissections on the defendant's apartment wall, is relevant to
identify the defendant as the third person participating in the
killings who Hall described as someone who "really enjoyed
torturing and cutting [the victims] up."   In essence, through
this statement, the defendant was describing himself as someone
who is capable of extraordinary acts of violence against other
persons, which tends to identify him as someone who would enjoy
torturing and dismembering other persons, and which therefore
permits the inference that he is the third person referred to by
Hall in speaking with Casey.   Where this statement is probative
of the defendant's identification as the third assailant, we
conclude that the judge did not abuse his discretion in
concluding that its probative weight outweighed the risk of
unfair prejudice.
4.   Prosecutor's closing argument.    The defendant contends
that the prosecutor in closing argument "argued a number of
points based on facts that do not appear in the record."    Where
there was no objection to the closing argument, we review the
record to determine whether there was a substantial likelihood
of a miscarriage of justice.   We conclude that there was not.
The defendant identifies four instances where the
prosecutor allegedly argued facts not in evidence.    First, he
29
claims that there was no evidence supporting the prosecutor's
statement that the three assailants had "the instruments in bags
available for the dismemberment," which the prosecutor argued
showed that the killings and dismemberments were planned.    The
defendant is correct that no witness testified to this fact, but
the prosecutor is entitled to argue that it was a fair inference
that the assailants had the tools with them when they killed the
victims, even though it was also possible that they retrieved
the tools after the killings based on Hall's statement that they
left the scene believing that the black man was dead and were
surprised to find him still alive when they returned.
Second, the defendant claims that the prosecutor improperly
suggested that the cleaver found in the defendant's apartment
was used to dismember the bodies.   The prosecutor properly noted
that the three assailants had access to the types of tools that
could have been used to dismember the victims, including the
cleaver.   He also properly argued that the jury should not infer
that the cleaver was not used in the killings because it did not
test positive for blood, asking rhetorically, "Wouldn't you
expect that [the cleaver] would test positive unless it was very
carefully cleaned . . . ?"   Where a kitchen cleaver would
routinely be used to cut meat, and therefore would be expected
to have blood residue if not carefully cleaned, this was not an
improper argument.
30
Third, the defendant takes issue with the prosecutor's
suggestion to the jury that the defendant was the third
assailant whom Hall said "really enjoyed torturing and cutting
them up."   This was fair argument based on inferences from the
evidence in the case.
Finally, the defendant claims that the prosecutor misstated
the evidence by telling the jury that the defendant had "boasted
to Steve Hinman that he had scarred himself."    This was a fair
inference from the defendant's statement to Hinman in which he
invited Hinman to imagine what he could do "to somebody else."
5.    Review under G. L. c. 278, § 33E.   As part of our
plenary review of the case, we note that the judge, in defining
reasonable doubt in his final jury instructions, told the jury
that "the evidence must convince you of the defendant's guilt to
a reasonable and moral certainty," but omitted the phrase from
the reasonable doubt instruction in Commonwealth v. Webster,

5 Cush. 295

, 320 (1850), that clarified the meaning of that
phrase:   "a certainty that convinces and directs the
understanding, and satisfies the reason and judgment, of those
who are bound to act conscientiously upon it."    Because the
defendant did not object, we review to determine whether the
judge's deviation created a substantial likelihood of a
miscarriage of justice.   See Commonwealth v. Figueroa,

468 Mass. 204

, 220 (2014).
31
"A constitutionally deficient reasonable doubt instruction
amounts to a structural error which defies analysis by harmless
error standards."    Commonwealth v. Russell,

470 Mass. 464

, 468
(2015), quoting Commonwealth v. Pinckney,

419 Mass. 341

, 342
(1995).   But "[t]he Constitution does not require that any
particular form of words be used in advising the jury of the
government's burden of proof."    Russell, supra, quoting
Pinckney, supra.    It suffices that the words used "impress[]
upon the factfinder the need to reach a subjective state of near
certitude of the guilt of the accused."    Russell, supra, quoting
Pinckney, supra at 344.11
The phrase "moral certainty" if used "in isolation, without
further explanation, might amount to an erroneous instruction on
reasonable doubt."    Pinckney, supra at 345, citing Commonwealth
v. Gagliardi,

418 Mass. 562

, 571 (1994), cert. denied,

513 U.S. 1091

 (1995).   But its use was not reversible error "where it was
used with an additional instruction which impressed upon the
factfinder the need to reach a subjective state of near
certitude of the guilt of the accused."    Pinckney, supra at 344,
citing Victor v. Nebraska,

511 U.S. 1

, 14-15 (1994).    Although
11
In Commonwealth v. Russell,

470 Mass. 464

, 477-478
(2015), we exercised "our inherent supervisory power to require
a uniform instruction on proof beyond a reasonable doubt that
uses more modern language, but preserves the power, efficacy,
and essence of the Webster charge." The trial in this case
resulted in verdicts in 2014, before the new instruction was
mandated.
32
the phrase must be linked with "language that lends content to
the phrase," Pinckney, supra at 345, "[w]e have never held that
'moral certainty' must be immediately followed by content-
lending language, only that it must be linked with such
language" (emphasis in original).   Commonwealth v. LaBriola,

430 Mass. 569

, 573 (2000).   Additionally, we have said that use of
the phrase "abiding conviction" in conjunction with the moral
certainty language "does much to alleviate any concerns that the
phrase 'moral certainty' might be misunderstood in the
abstract."   Id. at 572-573, quoting Victor,

511 U.S. at 21

.    The
judge's use of the phrase "abiding conviction" in conjunction
with "moral certainty," coupled with his fidelity to the Webster
instruction in every respect except for the noted omission,
convinces us that the omission did not create a risk that the
jury failed adequately to understand the reasonable doubt
standard, and therefore did not create a substantial likelihood
of a miscarriage of justice.   See Commonwealth v. Beldotti,

409 Mass. 553

, 562 (1991) (no error where moral certainty language
used as part of Webster charge).
Having addressed this omission in the reasonable doubt
instruction, we conclude that the verdicts of murder in the
first degree are fully consonant with justice and we decline to
exercise our authority under G. L. c. 278, § 33E, to order a new
33
trial or to direct the entry of verdicts of a lesser degree of
guilt.
Judgments affirmed.
LOWY, J. (dissenting, with whom Lenk, J., joins).     I agree
with the court that the evidence was legally sufficient to
support the defendant's convictions.    Because I disagree with
the court's analysis of the admission of photographs of items
found in the defendant's apartment, however, I respectfully
dissent.
Today, the court purports to announce a new brand of
identity evidence, which involves the use of similar, but not
distinctive, conduct of a defendant to infer that the defendant
acted in conformity with that conduct on another occasion.     If
this sounds like the language often used to describe the type of
character inference that fact finders are roundly prohibited
from making, that is because it is.
The court sets forth three "relevant, noncharacter
purposes" for which it holds the photographs were admissible:
(1) identity, (2) state of mind, and (3) motive.    I address each
in turn, and finally, I assess the prejudicial effect in this
case.
1.    Identity evidence.   I agree with the court that the
posters hanging in the defendant's apartment were not
sufficiently similar to the methods by which the victims' bodies
were dismembered to qualify as modus operandi evidence.1    I also
1
When asked whether the dismemberment of the victims was
consistent with the surgical illustrations, the Commonwealth's
2
agree that evidence may be admissible to prove a defendant's
identity, absent such similarity, when the evidence is
ultimately relevant because the evidence makes it more likely
than it would be without the evidence that the defendant is the
individual responsible for the crime.   This latter category of
"identity" evidence, however, does not permit the use of the
defendant's conduct "to prove [his] character in order to show
that on a particular occasion [he] acted in accordance with the
character."   Mass G. Evid. § 404(b)(1) (2017).   This rule
limiting the use of a defendant's prior conduct applies without
regard to the probative strength of the conduct.
"One of the oldest principles of Anglo-American law is that
a person 'should not be judged strenuously by reference to the
awesome spectre of his past'" (citation omitted).    D.P. Leonard,
The New Wigmore:   A Treatise on Evidence § 1.2, at 2 (2009)
expert said, "They do show amputation of limbs, so that portion
is consistent. I can't say if the exact location on the bone is
consistent in some of them. I can see at least one is
inconsistent in terms of location. Sometimes I just can't tell
what part of the bone I'm looking at." The prosecutor then
asked whether the victims' limbs were dismembered at the site of
the joint (as depicted in the illustrations), the witness
responded, "They were chopped through sometimes near a joint but
they were chopped through mostly right to the bone itself. In
terms of the vertebrae, a lot of the chopping was aimed between
two bones, so both bones were damaged but they were separated
where they normally separate." Further, on cross-examination,
defense counsel asked, "There's nothing in that diagram that's
consistent with the multiple large chopping injuries which you
just discussed, correct?" The witness answered, "That's
correct."
3
(Wigmore).   "For nearly two centuries, courts have excluded the
evidence not because of its lack of probative value but
primarily because of the dangers it is thought to present.       Most
commonly cited is the danger of unfair prejudice."    Id. at 6.
This prohibition on character evidence includes using a
defendant's other, relevant conduct to prove his or her
"propensity" to commit the charged crime.    Id. at 2-3.   See
Mass. G. Evid. § 404(b).   The danger of admitting such character
evidence against the defendant is not that it is irrelevant.
Rather, the danger is that the jury will overvalue the evidence.
Wigmore, supra at 5-7.
To say that other conduct is permissibly probative of
"identity," rather than impermissibly probative of character,
merely because a defendant's character makes him more likely to
be guilty, is an exercise in circular logic that renders the
prohibition on the character inference inert.   Thus, the court's
reasoning today, at best, dilutes the stringent requirements for
modus operandi evidence, or, at worst, eviscerates the rule
prohibiting use of a defendant's other conduct to show his
propensity to commit the crime charged.
I would classify admissible evidence that is probative of
identity into two categories:   (1) modus operandi, and (2) what
I will call "identity-based evidence."    Unlike modus operandi,
identity-based evidence does not require a high level of
4
distinctiveness shared between the defendant's other conduct and
the charged conduct.2   Rather, such other conduct constitutes
admissible identity-based evidence when introduced for a
nonpropensity purpose, such as, motive, opportunity, knowledge,
state of mind, or many other purposes, but the nonpropensity
purpose is ultimately relevant to "identify" the defendant as
the individual who committed the charged crime.   See P.C.
Giannelli, Understanding Evidence 174-175 (4th ed. 2013)
(Giannelli).
The following example of identity-based evidence is
illustrative.   If shortly before committing armed robbery, a
defendant steals a particular weapon to commit the armed
robbery, evidence that the defendant stole the weapon would be
admissible to establish that he had the means or opportunity --
because he had the particular weapon used to commit the crime.
See Giannelli, supra at 174.   That the defendant had the means
to commit the crime is relevant to his "identity" as the
perpetrator of the armed robbery.   See id.   The judge, however,
must still balance the probative value of the theft of the
weapon against the danger of undue prejudice that the jury will
2
As the court notes, ante at    , a similarity that is
merely general is a reason to exclude evidence of other conduct.
The danger that a jury will consider prior conduct as propensity
evidence is at its apex when the prior conduct resembles the
charged conduct, but is not sufficiently similar for purposes of
modus operandi.
5
consider the theft as evidence of bad character.    See Mass. G.
Evid. § 403.   Yet, there is minimal danger that a jury would
impermissibly consider the theft as indicative of the
defendant's propensity to commit armed robbery, i.e., that the
defendant showed his bad character by stealing a firearm, and
that it was more likely that he committed the crime due to this
bad character.   Rather, the more probable and logical inference
is that the evidence "identifies" the defendant as the
individual who committed the crime because he possessed the
weapon used in its commission.   The latter conclusion is not
based on an impermissible propensity inference.
In this case, the connection between the defendant's other
conduct and the charged conduct is squarely based on an
impermissible propensity inference.   The other conduct is
hanging posters depicting medical amputations.     The charged
conduct is chopping up three human beings.   The logical
connection between the two is that the defendant acted in
conformity with the character trait demonstrated by displaying
images of amputation by brutally chopping up the victims on a
subsequent occasion -- a stark contrast to the firearm example
above, which involves no such impermissible character inference.
The court conditions the admissibility of the drawings on
Adam Lee Hall's statement that "one of the guys really enjoyed"
chopping the victims up.   The court says that the anatomical
6
drawings are thus probative of identity in the same way that
posters of medieval weapons would be admissible identity
evidence if Hall had said one of the participants was fascinated
by medieval weapons.
The court's example is not analogous to the present case.
Unlike the present case, the court's example does not implicate
a propensity inference, because the medieval weapons referred to
in the hypothetical example do not relate to the commission of
the crime.    Thus, the example does not ask the jury to conclude
that, because the defendant had posters of medieval weapons, he
is the type of person who would participate in three brutal
murders.    In the hypothetical example, Hall's statement serves
only to identify a person who has an interest in medieval
weapons.    The medieval weapons posters are relevant because they
show an interest of the accused, and the hypothetical statement
identifies an individual who has that interest as a participant
in the crime.    The posters in no way suggest that the defendant
acted in accordance with that interest in killing the victims.
By contrast, in this case Hall stated that one of the
participants enjoyed the act of torturing and chopping up
people.    The anatomical drawings only corroborate this statement
if one presumes that the defendant acted in accordance with his
interest in anatomical dismemberment on a subsequent occasion by
chopping up the victims in a manner that did not meaningfully
7
resemble the dissections depicted in the drawings.    Regardless
of whether the defendant's display of the posters makes it more
likely that he was the third participant than it would be
without such evidence, this is the quintessential, impermissible
propensity inference.
2.   State of mind.   The court concludes that the fact that
the dismemberment of the victims "appears to have had no
pragmatic purpose and . . . must have taken a considerable
amount of time to complete" was an indication of the defendant's
state of mind.   Ante at     .   Even setting aside the evidence
suggesting that there was in fact a pragmatic purpose for
dismembering the bodies,3 this evidence still requires a jury to
assume that an individual who is "fascinated by amputation and
human dissection," demonstrated only by display of posters,
would "seize the opportunity of these killings to engage in
actual amputations and human dissection."    See ante at     .
3
The court concludes that the dismembered bodies were
likely all placed in Hall's Buick. Ante at     . Further, after
the killings, Rose Dawson and Alexandra Ely, who were not
alleged participants in the killings, drove in the Buick to a
supermarket. They did not look in the trunk, but they also did
not testify that they saw any blood or body parts in the cabin
of the automobile. Moreover, David Casey testified that he
later observed Hall open the trunk of the Buick and drop a
number of plastic garbage bags into the hole Casey had dug.
Accordingly, chopping up the bodies may well have been a
practical measure for purposes of transporting three bodies in
the trunk of the vehicle, while still retaining the vehicle for
limited use until the time it could be destroyed. Whether the
dismemberment of the bodies had any practical purpose was not an
issue at trial and was not argued by the Commonwealth on appeal.
8
Under this rubric, the court's theoretical path of
admissibility is "identity-based" evidence:    a person who is
fascinated with amputation is more likely to engage in the act
of physically dismembering people.   The court may be correct
that displaying the posters is probative of the defendant's
state of mind, which ultimately is relevant to identify him as
the perpetrator of the crime.    But, we do not allow in evidence
simply because it is relevant.   See Wigmore, supra at 5.   This
theory still requires the quintessential prohibited inference,
although labeled as "state of mind," in this application.     To be
relevant to the defendant's state of mind, one must conclude
that he acted in conformity with his other conduct of hanging
the posters on a subsequent occasion by participating in the
murders.
The Commonwealth itself described the state of mind only as
"depraved."   This is a thin veil.   It is difficult to imagine an
interpretation of this argument that is not a bald assertion
that the defendant's bad or "depraved" character makes him more
likely to be guilty of murder.   See Commonwealth v. Crayton,