COMMONWEALTH vs. RICHARD F. JACKSON.

LIACOS, C.J. The defendant appeals from his convictions of murder in the first degree and kidnapping. As grounds for reversal, the defendant argues that the trial judge erred in allowing the admission of evidence of a prior bad act offered for identification purposes. The defendant also argues that the evidence was insufficient to support the guilty verdicts, and that his motion for required findings of not guilty should have been allowed. Mass. R. Crim. P. 25 (a), 378 Mass. 896 (1979). We address both of these arguments. In addition, we have reviewed the entire record before us as we must pursuant

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to G. L. c. 278, Section 33E (1992 ed.). We conclude that admission of the prior bad act evidence was not erroneous, and that there was sufficient evidence on which the jury could have found the defendant guilty. Finally, we conclude that there is nothing in the record that warrants relief under Section 33E.

1. Facts. We recite the facts which the jury could have found. On July 7, 1990, at approximately noontime, the body of William A. McGunagle was found in Savin Hill Park in the Dorchester section of Boston. [Note 1] Other than part of a T-shirt sleeve on the left arm, McGunagle's body was nude. McGunagle's arms and legs were tied together behind his back, with his legs bent backward and upward toward his arms, in a manner commonly referred to as "hog-tied." See Commonwealth v. Angiulo, 415 Mass. 502, 507 (1993). In addition, a rope was tied from McGunagle's neck to the rope binding his wrists. [Note 2] McGunagle's head and neck had several severe abrasions, lacerations, and bruises. The soles of his feet and his toes were dirty, abraded, and lacerated. [Note 3] There also were superficial injuries to McGunagle's chest, back, and abdomen. There was a one-quarter inch tear in the lining of McGunagle's anus consistent with insertion of a large,

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hard object. McGunagle's blood alcohol level was 0.47 per cent and his blood contained 0.7 milligrams per cent of phenobarbital. The cause of death was ligature strangulation. The approximate time of death was from ten to twelve hours before the body was discovered.

As noted above, note 1, supra, it was the defendant who "discovered" the victim's body. He told the witness whom he approached that he had been walking in the park because his back was bothering him. There was evidence that the defendant had an existing back problem. The body was discovered, however, several feet from the footpath where the defendant claimed he was walking. The body largely was obscured from the view of someone on the footpath by dense vegetative growth.

The witness to whom the defendant reported finding the body testified at trial. She lived across the street from the entrance to the park. In the early morning hours of the day the body was discovered, the witness was watching television when she heard an automobile outside her home. She saw two men getting out of a large white automobile. [Note 4] She gave descriptions of the two men which generally fit the descriptions of the victim and of the defendant. She saw the larger man walk to the trunk of the automobile, open the trunk, and close it. He then spoke to the smaller man and they went into the park. The witness thought that the smaller man appeared intoxicated. The two men entered the park and sat on some rocks. The witness then went to bed.

In investigating the murder, police officers questioned the defendant because he had discovered the body. He said that he had touched the victim to see if he was breathing, but said that he did not recognize the body. The next day, police officers questioned the defendant again. One officer intended to ask the defendant about an incident involving John McHugh, but asked him, mistakenly, if he remembered "Michael McHugh."

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The defendant replied that he did not, so the officer reminded the defendant of the details. The officer again asked him, mistakenly, if he remembered "Michael McHugh." The defendant replied that the officer was trying to trick him and that he did not know any "McGunagle." At this point, the body of the victim had not yet been identified by the police as that of William McGunagle.

A search of the trunk of the defendant's automobile produced, among other things, a can of transmission fluid, a length of clothesline rope, three hand-held vacuum cleaners, and a roll of duct tape. A chemist who examined the transmission fluid found in the defendant's trunk and the fluid extracted from the T-shirt sleeve on the victim, testified that, in his opinion, the transmission fluid was consistent with the liquid extracted from the sleeve. [Note 5] A criminalist testified that the rope found in the trunk of the defendant's automobile was similar in all characteristics to the rope used to bind the victim. He also testified that hairs found in the defendant's automobile were similar to hair samples from the victim.

Before trial, the defendant moved to exclude from admission at trial evidence relating to an incident involving the defendant which occurred in May, 1988 (McHugh incident). The judge conducted a hearing on this motion at which several witnesses testified. We summarize the testimony adduced at that hearing and repeated at trial.

On May 28, 1988, at approximately 3:30 A.M., three investigators from the Boston fire department's arson squad were returning from a fire at 120 Grampian Way in the Savin Hill neighborhood of Dorchester. [Note 6] While traveling on Grampian Way, two of the arson investigators simultaneously noticed

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the nude body of John McHugh [Note 7] in the front seat of a large, white, four-door automobile pulled over at the side of Grampian Way. The automobile belonged to the defendant. He still had this same automobile in July, 1990. The defendant was standing outside the automobile. The arson investigators stopped to investigate. On touching McHugh, one of the investigators realized that McHugh was alive. His eyes and mouth were covered with silver duct tape and his hands and legs were hog-tied behind his back with clothesline rope. There was no rope running from his neck to his arms. McHugh's body did not have abrasions, lacerations, or bruises.

One of the arson investigators removed the duct tape from McHugh's mouth and eyes. After removing the tape, the investigator detected a strong smell of alcohol emanating from McHugh's mouth. [Note 8] Soon, Boston police officers and emergency medical technicians, who had been summoned by the arson investigators, arrived on the scene. One of the emergency medical technicians untied McHugh. McHugh, whose clothing and boots were found in the defendant's automobile, was assisted in dressing himself. He was unable to put on his underwear because it had been torn in such a way that it was no longer wearable.

Although the defendant was taken into protective custody by police officers, he was not arrested. No charges were filed against him. McHugh testified that he did not pursue criminal action against the defendant because McHugh was embarrassed by the whole incident. At the time, the defendant

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first claimed that McHugh had tried to rob him, then claimed that McHugh was so severely under the influence of drugs and alcohol that the defendant had to hog-tie him in order to restrain him.

After this hearing, the judge ruled that the incident met the requirements of Commonwealth v. Brusgulis, 406 Mass. 501, 505-506 (1990), and that he would allow the admission of evidence of this prior incident. The judge therefore denied the defendant's motion to exclude the evidence. During the trial, over the defendant's objection, several witnesses testified to the events of the McHugh incident, describing it substantially similar to the way it was described at the motion hearing. Just before the testimony was offered at trial, the judge instructed the jury that the evidence of the McHugh incident could be used only for the issue of identification. In charging the jury at the close of all the evidence, the judge again instructed the jurors that the evidence of the prior incident could be used only for the issue of identification. He further instructed the jury that to use the prior incident for identification purposes, they must be satisfied beyond a reasonable doubt that "the prior misconduct or event and the circumstances of the crime or crimes here charged, have such similarities as to be meaningfully distinctive," and that the "Commonwealth must prove beyond a reasonable doubt uniqueness of technique, a distinctiveness or a particularly distinguishing pattern of conduct common to the current and former incidents as tending to prove that the defendant was the person who committed the crime or crimes charged." [Note 9]

2. Prior bad act evidence. Evidence of prior bad acts generally is not admissible to prove bad character or propensity to commit the crime charged, but may be admissible if relevant

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for some other purpose. Commonwealth v. Brusgulis, supra at 504-505, and cases cited. Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). When prior bad acts are offered to prove a defendant's identity, that evidence is likely to have an improper influence on the jury. Brusgulis, supra at 505. Thus, "evidence of prior bad acts is not admissible to prove identity unless there is a special mark or distinctiveness in the way the acts were committed (i.e., in the modus operandi)." Id., citing Commonwealth v. Lacy, 371 Mass. 363, 366 (1976). See Commonwealth v. Helfant, supra at 235 (O'Connor, J., dissenting). See also Commonwealth v. Cordle, 404 Mass. 733, 747 (1989) (Liacos, J., dissenting), S.C., 412 Mass. 172 (1992) (for identification, prior bad act must be "so unusual and distinctive as to be like a signature"), quoting McCormick, Evidence Section 190, at 559 (3d ed. 1984).

In order for evidence of prior bad acts to be admitted to prove identity, the Commonwealth must show that "the prior events and the circumstances of the crime charged have such similarities as to be meaningfully distinctive. . . . There must be a uniqueness of technique, a distinctiveness, or a particularly distinguishing pattern of conduct common to the current and former incidents to warrant the admission of evidence of prior bad acts as tending to prove that the defendant was the person who committed the crime charged." (Citations omitted.) Brusgulis, supra at 505-506. It is not enough that there is some "general, although less than unique or distinct, similarity between the incidents." Id. at 507. When reviewing a trial judge's decision to admit evidence of prior bad acts to show identity, we examine whether the judge committed palpable error. Commonwealth v. Cordle, supra at 744.

In Brusgulis, we concluded that it was error to admit evidence of prior acts (sexual assaults or attempted sexual assaults on women), alleged to have been committed by the defendant, where the features that were common to the incidents in question were also common generally to numerous assaults or attempted assaults on women (secluded site,

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use of threatening but not unique words, use of force, abandonment because of fear of discovery). Brusgulis, supra at 506-507. We also noted that the differences in the way the incidents were committed were substantial. Id. at 507. See Cordle, supra at 748 (Liacos, J., dissenting) ("A marked difference in circumstances prevents the original episode from functioning as an identifying factor"), citing Commonwealth v. Key, 21 Mass. App. Ct. 293, 297 (1985).

In Commonwealth v. Lacy, supra at 365, the defendant was charged with murder; he gained entrance to the victim's apartment building using false identification. Ten days after the murder, the defendant was arrested when he tried to gain entry to another apartment in the same building. Id. During the subsequent incident, the defendant wore clothes matching the description of those worn by the man observed ten days earlier, tried to gain entrance to the building in the same manner (using false identification), and used the same false identification card. Id. at 366. This court concluded there was no error in admitting evidence of the subsequent incident. Id. We did not note any substantial differences between the two incidents.

The Commonwealth argues that the similarities between the two incidents, including the victims, the timing, the location, the manner and the means by which the crimes were carried out, when considered as a whole, bear the requisite mark of distinctiveness. The Commonwealth asserts distinctiveness in that the victim and McHugh both were hog-tied and both were nude except for minimal clothing (a T-shirt sleeve, in the former case, and socks, in the latter case). [Note 10]

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Examining the over-all pattern allegedly followed by the defendant in both incidents, it is significant that a distinctive pattern is shown because each involved a very unusual method of incapacitation.

The Commonwealth also argues that the manner of tying demonstrates distinctiveness. At the pretrial hearing and at trial, there was extensive testimony about the ropes, loops, and knots used in both the murder and the McHugh incident. We summarize that evidence.

Thomas J. Gallagher, a Boston police officer at the time of trial, was an emergency medical technician in May, 1988. [Note 11] He testified that he untied McHugh after he was discovered by the arson investigators in the defendant's automobile. Gallagher testified that McHugh was bound with one piece of rope. [Note 12] McHugh's arms were behind his back. The rope was looped once around each wrist at the wrist bone, then looped around both wrists together two to four times. The rope was tied a few inches below the wrists in a knot consisting of two to four loops. [Note 13] Gallagher called this a "taut line

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hitch," [Note 14] and testified that it is a knot commonly used in the military to pitch tents. The rope continued down to McHugh's ankles, which were pulled upward behind his back. Like the wrists, the ankles were bound at the ankle bone, first individually with one loop around each ankle, and then together with two to four loops. The rope was tied off with a knot heading back up toward the wrists, a few inches above the ankles. This knot was the same as the knot that was tied just below the wrists.

Gallagher was shown several photographs of the murder victim depicting the method of tying used. Gallagher testified that the knots tied below the wrists and above the ankles, as depicted in the photographs, were taut line hitches. [Note 15] On cross-examination, he testified that the knot at the ankles in the photographs did not consist of the same number of loops as the knot at the wrists in the photographs. He also testified that, on viewing the photographs, he could see only one loop around both wrists, but could not tell if the single loop went around each wrist separately or both wrists together.

Doctor Gerald Feigin, associate medical examiner for Suffolk County, testified that he performed an autopsy on McGunagle's body. He described the manner in which McGunagle was bound: "The rope . . . was looped around the neck twice and tied to the wrists, turned double and then to the ankles, where it was looped four times." [Note 16] He testified that the rope was "turned double" on the right wrist "three inches above the end of the bone towards the pinky," and on

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the left wrist "one inch above." As for the ankles, the rope was immediately above the malleolus of the right foot and one inch above the malleolus of the left foot.

The Commonwealth further asserts similarity between the two incidents in that the victims of each incident, McHugh and McGunagle were both males, with histories of drug or alcohol problems, who were highly intoxicated at the time the respective incidents occurred, "making them both pliable for the defendant." Furthermore, both men were acquainted with the defendant so they had "a degree of trust in him."

The Commonwealth next relies on the timing and location of the two incidents: both occurred in the early morning hours and both occurred in the Savin Hill neighborhood of Dorchester, within 400 yards of each other. We agree that both of these similarities contribute to a finding of a distinctive pattern in both incidents. We note that, as for the location, the McHugh incident occurred on a public street near the park while McGunagle's body was found inside the park.

In passing on whether the McHugh incident is admissible to show identification, we are mindful that dissimilarities between the previous incident and the crime charged may prevent the admission of evidence of the previous incident. See Key, supra at 297. In our review of the record in this case, we have discovered some dissimilarities between the McHugh incident and the murder. The Commonwealth argues that most of these distinctions should be disregarded. The Commonwealth contends that, had the defendant not been interrupted by arson investigators, he would have done to McHugh what he allegedly did to McGunagle, and therefore we should draw that inference. We conclude that this aspect of the Commonwealth's argument, if accepted, would relieve the Commonwealth of its burden of establishing that the prior incident and the crimes charged actually share unique or distinctive features. More importantly, the Commonwealth's contention that we should draw such an inference assumes the answer to the question whether the defendant murdered McGunagle. In essence, the Commonwealth would require a finder of fact to assume, prematurely and without

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proof, the identity of the defendant as the perpetrator of the crimes charged, and then, based on that assumption, to assume and to infer further that the defendant would have completed the McHugh incident in the same way that McGunagle was murdered, and finally, having inferred that the defendant would have murdered McHugh by hog-tying and beating him, to use that inference as evidence that the defendant is the one who hog-tied and beat, and thus murdered, McGunagle. Such circular logic based wholly on speculation and a mere assumption cannot be used to satisfy the strict rule that prior bad acts used to show identity actually must share some uniqueness or distinctiveness with the crime charged. We decline to pile inference upon inference in the manner that the Commonwealth urges on us. See Commonwealth v. Ferguson, 384 Mass. 13, 17-18 (1981).

Although we decline to make the inferences suggested by the Commonwealth and therefore do not dismiss these dissimilarities out of hand, we nevertheless conclude that they were not so significant that they "prevent the original episode from functioning as an identifying factor." Commonwealth v. Cordle, 404 Mass. 733, 748 (1989) (Liacos, J., dissenting), citing Commonwealth v. Key, 21 Mass. App. Ct. 293, 297 (1985).

The defendant argues that the McHugh incident, occurring over two years before the murder, was too remote in time to be admissible for identification purposes. There is no bright-line test for determining whether a prior incident is too remote to be admitted to prove the defendant's identity. Commonwealth v. Helfant, 398 Mass. 214, 228 n.13 (1986), and cases cited. In Brusgulis, we determined that two prior incidents occurring four years and ten years, respectively, before the crime charged were inadmissible to prove identity, although we did not address the remoteness issue. Brusgulis, supra at 503 n.3, 506-507. In Helfant, three years was not too great a time lag to render the prior incident inadmissible. Helfant, supra at 228. In this case, we conclude that slightly more than two years between the incidents, although near the limit, was not too great, in consideration of the over-all

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distinctiveness with which the two incidents were carried out, and especially considering the strikingly similar physical proximity of the two incidents.

On viewing both incidents in their entireties, [Note 17] we conclude that the question whether to admit evidence of the McHugh incident as a prior bad act to prove identity was a close one. Although we may have decided the question differently, we cannot say that the judge was palpably wrong in concluding that there was a uniqueness of technique, a distinctiveness, or a particularly distinguishing pattern of conduct common to the current and former incidents. [Note 18] Furthermore, we cannot conclude that there was palpable error in the judge's implicit conclusion that the probative value of the evidence out-weighed its "potential for undue prejudice." Brusgulis, supra at 505, and cases cited.

3. Sufficiency of the evidence. The defendant argues that the evidence was insufficient for the jury to return guilty verdicts on the indictments. The defendant's main contention is that there was no evidence establishing that he was the murderer. In passing on the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth to determine whether the evidence and the permissible inferences drawn therefrom are sufficient "to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt." Commonwealth v. Latimore,

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378 Mass. 671, 676 (1979), quoting Commonwealth v. Cooper, 264 Mass. 368, 373 (1928).

There was evidence from which the jury could have inferred that the defendant was seen at the scene of the crime with the victim shortly before the time of death. Hair similar to the victim's was found in the defendant's automobile, suggesting that the victim had been in the defendant's automobile at some point. The identification of the defendant's automobile by a witness is further evidence of his presence at that time. In addition, the evidence of the McHugh incident, which we have concluded was not admitted erroneously, tended to establish the defendant's identity as the perpetrator of the murder. [Note 19] On several occasions, the defendant displayed consciousness of guilt. There was evidence from which the jury could have found that the defendant possessed the means to commit the crime (clothesline found in his trunk) and also that he tried to destroy evidence of the crime (transmission fluid, found on the T-shirt sleeve and in trunk, may have been used to burn clothing).

The jury could have found that the murder was committed with extreme atrocity or cruelty or that it was premeditated and deliberate. In addition to the circumstances of the murder which speak for themselves, there was testimony by the medical examiner that the cause of death was gradual strangulation

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over some period of time and that the victim was severely beaten before death. Also, if the jury were satisfied that the defendant perpetrated the McHugh incident, they could have used that incident to infer the defendant's malice on this occasion. See Commonwealth v. Zagranski, 408 Mass. 278, 281 (1990), and cases cited.

As for the kidnapping charge, there was evidence that the victim was transported, that he was alive at the time that he was bound, and that the manner in which he was bound would have rendered him incapacitated. From the circumstances, the jury could infer that this binding was against McGunagle's will.

Based on our review of the entire record, we conclude that the evidence was sufficient to support guilty verdicts on the indictments.

4. Review under G. L. c. 278, Section 33E. We have reviewed thoroughly the entire record before us as is our responsibility under G. L. c. 278, Section 33E. We conclude that nothing in the record warrants our granting any relief under that section.

5. Conclusion. The judgments of the Superior Court are affirmed.

So ordered.