Com. v. Jackson

• Decision Date: 18 May 1994
• Citation: 417 Mass. 830,633 N.E.2d 1031
• Parties: COMMONWEALTH v. Richard F. JACKSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1031

633 N.E.2d 1031

417 Mass. 830

COMMONWEALTH v. Richard F. JACKSON.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 8, 1993.

Decided May 18, 1994.

Jonathan Shapiro, Boston (Jenny C. Chou with him), for defendant.

Kenneth H. Anderson, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

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 to G.L. c. 278, § 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 § 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. 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, 615 N.E.2d 155 (1993). In addition, a rope was tied from McGunagle's neck to the rope binding his wrists. 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. 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, 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. 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." 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. 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. ⁶ While traveling on Grampian Way, two of the arson investigators simultaneously noticed the nude body of John McHugh 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. 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 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, 548 N.E.2d 1234 (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." 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 for some other purpose. Commonwealth v. Brusgulis, supra at 504-505, 548 N.E.2d 1234, and cases cited. Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (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, 406 Mass. at 505, 548 N.E.2d 1234. 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, 358 N.E.2d 419 (1976). See Commonwealth v. Helfant, supra, 398 Mass. at 235, 496 N.E.2d 433 (O'Connor, J., dissenting). See also Commonwealth v....