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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, 470

Mass. 228, 251-252 (2014) (jury prohibited from inferring that

defendant's interest in child pornography meant he must have

been person who accessed child pornography in library).

Admitting the photographs as "state of mind" evidence where the

photographs reflect only a general character trait of the
                                                                      9


defendant eviscerates any distinction between evidence of a

character trait and that of state of mind.

    The admission of this evidence was coupled with testimony

from one witness that she observed "a lot of creepy shit

everywhere" inside the defendant's apartment.     On this theory of

admissibility, the Commonwealth does not attempt to factually or

temporally tie this so-called "state of mind" evidence to the

crime at issue.      Contrast Commonwealth v. Drew, 397 Mass. 65,

78-79 (1986), S.C., 447 Mass. 635 (2006),     (defendant's

participation in Satanic rituals relevant to prove involvement

in ritualistic killings).     Accordingly, I would conclude that

the posters were not admissible to prove the defendant's state

of mind.

    3.     Motive.   The court concludes that the posters were

independently probative of the defendant's "motive."     The court

relies on cases in which we have allowed the Commonwealth to

establish a "context for the killing" when it would otherwise

appear to the jury as an "inexplicable act of violence"

(citation omitted).      Commonwealth v. Marrero, 427 Mass. 65, 68

(1998).    The circumstances of this case do not resemble those

relied on by the court.     See, e.g., id. (Commonwealth allowed to

introduce significant detail regarding defendant's relationship

with victim and witnesses involved in drug business connected to

murder); Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982)
                                                                  10


(Commonwealth permitted to introduce evidence of defendant's

activities on day of murder because they were "inextricably

intertwined with the description of events on the [day] of the

killing").   See also Commonwealth v. Guy, 454 Mass. 440, 443

(2009) (Commonwealth permitted to admit evidence of defendant's

fascination with serial killings in absence of any other

evidence of motive).

     The court relies primarily on Guy, 454 Mass. at 443-444,

which is not analogous.   In that case, the Commonwealth had

significant physical evidence tying the defendant to the crime,

but was faced with a peculiar situation of having no explanation

for the jury as to why the defendant had committed the crime.4

By contrast, Hall orchestrated David Glasser's death to prevent

his testimony.   The other two victims were murdered to eliminate

witnesses to Glasser's killing.    The defendant, as the

Commonwealth argued at trial, was motivated to assist Hall

because the defendant was aspiring to become a member of the

Hells Angels motorcycle club.     The Commonwealth did not, and

     4
       There was also a greater quantum of evidence that the
defendant in Guy, 454 Mass. at 443-444 & n.3, had a significant
fascination with serial killings, including a large number of
books seized from his home (which were not themselves admitted
in evidence, but were referenced) and testimony from his
coworkers attesting to his ongoing fascination. Here, the only
evidence of the defendant's "fascination" was that he had placed
posters on his wall, and the record suggests that the posters
had not been displayed on the wall for a long period of time
because the defendant was still in the process of moving his
belongings from his previous residence into this residence.
                                                                     11


does not on appeal, argue that the defendant was motivated to

participate in the crime to seize the opportunity to dismember

human beings, or that the dismemberment had no practical

purpose.

    4.     Prejudicial effect.   For the reasons set forth above, I

would conclude that the anatomical drawings were probative only

of the defendant's character and were thus inadmissible.

Accordingly, it is unnecessary to weigh the probative value

against the danger of undue prejudice, since this evidence has

no probative value other than propensity.    Instead, the relevant

inquiry is whether the error created a "reasonable possibility

that . . . might have contributed to the jury's verdict."

Commonwealth v. Alphas, 430 Mass. 8, 23 (1999).    The

Commonwealth bears not only the burden to show the lack of

error, but also the "risk of doubt when any exists" as to

whether the error influenced the jury's verdict.     Id.   The

Commonwealth does not even argue that the evidence, if

erroneously admitted, was not prejudicial.    That may well end

the inquiry, but there are five factors that I believe enhanced

the danger of prejudice in this case.

    First, even if the evidence had been admissible, it should

have been accompanied by a limiting instruction.    No limiting

instruction was requested or given at trial, despite the

palpable danger of undue prejudice of the evidence.      Without a
                                                                   12


limiting instruction, the photographs were before the jury for

all purposes, including as impermissible propensity evidence.

This danger created a substantial likelihood of a miscarriage of

justice.   G. L. c. 278, § 33E.   See Crayton, 470 Mass. at 252

(illustrations too prejudicial to justify admission, even with

limiting instruction).

    Second, in other cases, we have found that the failure to

give a limiting instruction did not warrant reversal, when other

circumstances mitigated the danger of unfair prejudice.    For

example, in Guy, 454 Mass. at 443-444 & n.3, in which we did not

discuss a limiting instruction, we noted that the prosecutor

utilized evidence of the defendant's interest in books about

serial killings -- which were not admitted in evidence -- in a

"technical, analytical manner, without drama or undue emphasis

that might have released its potential for unfair prejudice."

Further, the prosecution in that case had compelling physical

evidence connecting the defendant to the crime, reducing the

probability that the jury would return a guilty verdict based on

the defendant's macabre interest.

    This case is distinguishable from Guy.     Unlike the books in

Guy, the posters themselves, depicting graphic images, were

admitted in evidence.    Also, the prosecutor was not especially

cautious in avoiding drama or character-related implications in

his closing argument, to mitigate the danger of unfair
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prejudice.   Rather, the prosecutor made a graphic emotional

appeal to the jury, referring to the defendant's intent "not

just . . . to keep three men from testifying in court but of

satisfying some retribution and intent to take apart humanity

piece by piece."   The court concludes that this statement,

clearly referring to the horrendous nature of the dismemberment

and not any pertinent evidentiary point, is comparably

"technical and analytic."    I disagree.

    Third, although the prosecutor did not explicitly refer to

the photographs in his closing argument, defense counsel quite

understandably addressed the evidence in his closing argument

three times, in an effort to dampen its prejudicial force.

    Fourth, the judge gave proper limiting instructions

regarding the defendant's association with the Hells Angels and

Hall's history with Glasser.    By informing the jury that there

was specific evidence that they should not consider as evidence

of bad character, the jury were left to infer that the remainder

of the evidence could be considered as evidence of the

defendant's bad character.

    Finally, the likelihood that the jury considered the

evidence for a prohibited purpose was further enhanced by the

entirely circumstantial nature of the case against the
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defendant.5   As in Crayton, 470 Mass. at 250, the primary issue

at trial was the defendant's identity.   Due to the lack of

direct evidence and a limiting instruction, the jury were more

apt to use the photographs as character evidence to infer the

defendant's guilt.   Contrast Guy, 454 Mass. at 442-444, 447

(evidence of defendant's interest in serial killings used to

establish his identity as killer, but also deoxyribonucleic acid

evidence matched defendant).   Even with the impermissible

character evidence, the issues were difficult enough to resolve

that the jury deliberated nearly five full days before reaching

verdicts.

     I believe that the Commonwealth did not satisfy its burden

to demonstrate that there was no "reasonable possibility" that

the erroneous admission of these photographs contributed to the

jury's verdicts.   Accordingly, I would have reversed the

defendant's convictions and granted a new trial.




     5
       Of course, the Commonwealth is entitled to prove its case
entirely by circumstantial evidence. Commonwealth v. Woods, 466
Mass. 707, 713, cert. denied, 134 S. Ct. 2855 (2014).
