Commonwealth v. Winquist , 474 Mass. 517 ( 2016 )

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SJC-12005
COMMONWEALTH vs. JAMES S. WINQUIST.
Plymouth. March 8, 2016. - June 14, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Homicide. Joint Enterprise. Evidence, Hearsay, Common criminal
enterprise, Joint venturer, Statement of codefendant.
Practice, Criminal, Hearsay.
Indictments found and returned in the Superior Court
Department on September 28, 2007.
The cases were tried before Richard J. Chin, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Leslie W. O'Brien for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
SPINA, J. On May 9, 2005, the badly decomposed bodies of
two homeless men, subsequently identified as William Chrapan and
David Lyon, were discovered inside an abandoned ammunition
bunker located in Bare Cove Park in Hingham. The cause of death
2
for each man was blunt force trauma and "semi-sharp" injuries to
the head. In addition, Chrapan was missing his right hand,
which was found two months later by two men walking their dogs
in Bridgewater. The defendant, James S. Winquist, was indicted
by a grand jury on September 28, 2007, on two counts of murder,
G. L. c. 265, § 1. Following a jury trial in the Superior Court
in September, 2012, he was convicted of two counts of murder in
the second degree. The defendant was sentenced to concurrent
terms of life in prison. On appeal, he argued that (1) two out-
of-court statements made by Eric Snow,1 a purported joint
venturer in the murders, were erroneously admitted against the
defendant under the joint venture exception to the hearsay rule;2
(2) the trial judge erred in denying his midtrial request for a
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (3)
the prosecutor's closing argument was improper; and (4) a key
witness was incompetent to testify. The Appeals Court affirmed
the judgments. Commonwealth v. Winquist, 87 Mass. App. Ct. 695,
1
Approximately six months before the start of the
defendant's trial, Eric Snow, who also was charged with two
counts of murder, committed suicide in jail. This fact was not
introduced in evidence at the defendant's trial.
2
"Under the joint venture exception to the hearsay rule,
'[o]ut-of-court statements by joint criminal venturers are
admissible against the others if the statements are made during
the pendency of the criminal enterprise and in furtherance of
it.'" Commonwealth v. Hardy, 431 Mass. 387, 393 (2000), S.C.,
464 Mass. 660, cert. denied, 134 S. Ct. 248 (2013), quoting
Commonwealth v. Clarke, 418 Mass. 207, 218 (1994). See Mass. G.
Evid. § 801(d)(2)(E) & notes (2015).
3
696 (2015). We granted the defendant's application for further
appellate review, limited to the issue of the admissibility of
Snow's out-of-court statements. As to that issue, we conclude
that the statements properly were admitted.3
1. Background. The facts as they could have been found by
the jury are set forth in the decision of the Appeals Court.
See id. at 696-699. We reiterate the pertinent details.
Snow and the defendant were members of the "Brotherhood of
Blood" (Brotherhood), a small neo-Nazi group of friends that
"look[ed] out for each other" and shared "white pride beliefs."
One day in April, 2005, the defendant, his girl friend, Snow,
and Kelly Burgess, a woman with whom Snow and the defendant were
friends, were walking in Bare Cove Park when they encountered
Chrapan and Lyon. When Burgess offered them some money to buy
coffee, Snow slapped the money from her hand and made
disparaging comments about the two homeless men.
A day or two later, at around 11 P.M., Snow asked Burgess
to drive him and the defendant down the street. She gave them a
ride to a grocery store parking lot that was across the street
from Bare Cove Park, and Snow asked her to return thirty minutes
later to pick them up. Within a few minutes of Burgess's return
to the parking lot, Snow and the defendant emerged from Bare
3
With regard to the other issues raised by the defendant
before the Appeals Court, the decision of the Appeals Court is
final and binding.
4
Cove Park and got into Burgess's motor vehicle. She drove them
back to the defendant's house, where they all went downstairs to
the basement.
Burgess saw that Snow was covered in blood, and the
defendant had blood on the bottom of his pants and boots. Each
man was carrying a baseball bat; bloody spikes protruded from
the bat in Snow's hands. Snow and the defendant changed
clothes, putting their bloody clothes and the bats in a bag on
the floor. Snow told the defendant to "get rid of them," and
the defendant responded that he would. Burgess asked Snow what
he was talking about, and he replied that it was none of her
business. Shortly thereafter, right before Snow and Burgess
left the house, Burgess heard Snow tell the defendant that he
(the defendant) had "made his bones." Among members of the
Brotherhood, this expression referred to "killing somebody,
putting in work that would prove you were worthy" of membership
in the group. Burgess proceeded to drive Snow to his mother's
house in Bridgewater, behind which Snow buried a bag containing
a human hand. Then, they parted company. Several weeks later,
the defendant telephoned Burgess and told her that two bodies
had been found in Bare Cove Park.
In December, 2006, Snow, who was then in prison serving an
unrelated sentence, wrote a letter to the defendant expressing
his concern that Burgess, whom he referred to as "Bigfoot," was
5
plotting against them, and stating that "she obviously knows way
too much and needs to be taken under soil."4 Snow also stated
that Burgess was "the type of individual that sold her own kids
out for crack," and that "hopefully we'll get lucky and they'll
just die on their own." On April 26, 2007, Snow wrote another
letter to the defendant on the occasion of the second
anniversary of the murders. In this letter, Snow wrote, "You
made your bones while the rest smoked them." Suspecting that
certain of their friends wanted "to see [them] go down for
eternity" and were planning to tell the police about the
murders, Snow also wrote, "[W]e know who the real threats are
and what needs to become of them." He provided the defendant
with the address of Burgess and her roommate, Jack Amaral, on
East Main Street in Brockton, and he instructed the defendant to
"make sure you take out [Amaral's son] as well."
One evening in June, 2007, the defendant drove to the
address provided by Snow. Amaral observed the defendant parking
his vehicle and opening its trunk, in which he saw a white,
five-gallon bucket. Amaral ran down the stairs from his third-
floor apartment, and as the defendant, who had nothing in his
hands, started to climb up the stairs, Amaral confronted him.
4
This letter and many others were discovered on September
6, 2007, during a search of the defendant's bedroom at his
parents' home in Weymouth. The defendant had been arrested the
prior month.
6
The defendant told Amaral that Snow had sent him there to burn
down the house because Snow had concerns about Burgess. The
defendant also told Amaral that he could not go through with it
because Amaral's son was in the apartment.
At trial, the theory of the defense was that although the
defendant had accompanied Snow to Bare Cove Park and was present
when Snow purportedly killed Chrapan and Lyon, he did not
participate in the murders. To counter this defense, the
Commonwealth sought to introduce, among other evidence, the two
statements made by Snow that the defendant had "made his bones."
The Commonwealth sought to admit one of these statements through
the testimony of Burgess, and the other by way of the April 26,
2007, letter from Snow to the defendant. The defendant
objected. The judge ruled that the statements were admissible
because they were made during a joint venture as part of an
ongoing effort to conceal the crime. After being instructed on
murder in the first degree on theories of extreme atrocity or
cruelty and deliberate premeditation, murder in the second
degree, and joint venture liability, the jury convicted the
defendant of two counts of murder in the second degree.
2. Admission of Snow's statement in April 26, 2007,
letter. The defendant first challenges the admission of Snow's
statement in his April 26, 2007, letter to the defendant that he
(the defendant) had "made [his] bones." In the defendant's
7
view, the judge erred in admitting this statement because it was
not made during a cooperative effort to murder Chrapan and Lyon,
or soon thereafter. We conclude that, in the circumstances of
this case, even though the letter was written nearly two years
after the murders, the joint venture remained ongoing, and,
therefore, the challenged statement was properly admitted.5
"Out-of-court statements by joint venturers are admissible
against the others if the statements are made during the
pendency of the criminal enterprise and in furtherance of it."6
Commonwealth v. Carriere, 470 Mass. 1, 8 (2014), quoting
Commonwealth v. Burton, 450 Mass. 55, 63 (2007). See
Commonwealth v. Bongarzone, 390 Mass. 326, 340 (1983). See also
Mass. G. Evid. § 801(d)(2)(E) & notes (2015). The admissibility
of such statements is premised on a belief that common interests
and activities among coventurers during a criminal enterprise
tend to ensure the reliability of their statements to one
another. See Commonwealth v. White, 370 Mass. 703, 712 (1976).
In essence, "the statement of each joint venturer is equivalent
to a statement by the defendant." Commonwealth v. Stewart, 454
5
"[T]he question whether an out-of-court statement
satisfies an exception to the hearsay rule is one for the judge
alone." Commonwealth v. Bright, 463 Mass. 421, 428 (2012).
6
Generally speaking, the statements of joint venturers are
the type of remarks that are deemed nontestimonial under
Crawford v. Washington, 541 U.S. 36, 56 (2004). See
Commonwealth v. Carriere, 470 Mass. 1, 8-9 (2014); Commonwealth
v. Burton, 450 Mass. 55, 63-64 (2007).
8
Mass. 527, 535 (2009). "Before statements by coventurers may be
admitted, the Commonwealth first must establish the existence of
the joint venture (and the defendant's involvement in it) by a
preponderance of the evidence, independent of the out-of-court
statements." Carriere, supra. See Commonwealth v. Cruz, 430
Mass. 838, 844 (2000). "If the judge is satisfied that the
Commonwealth has met this burden, the statement may be admitted,
and the jury are instructed that they may consider the
statements only if they find that a joint venture existed
independent of the statements, and that the statements were made
in furtherance of that venture."7 Carriere, supra, and cases
cited.
"A joint venture is established by proof that two or more
individuals 'knowingly participated in the commission of the
crime charged . . . with the intent required for that offense.'"
Commonwealth v. Bright, 463 Mass. 421, 435 (2012), quoting
Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). "[W]e view
the evidence presented to support the existence of a joint
venture 'in the light most favorable to the Commonwealth,'
recognizing also that the venture 'may be proved by
circumstantial evidence.'" Bright, supra, quoting Commonwealth
v. Braley, 449 Mass. 316, 320 (2007), and cases cited. A
7
The judge in this case properly instructed the jury
regarding the consideration of statements made by purported
joint venturers.
9
judge's determination as to the existence and scope of a joint
venture is reviewed under the abuse of discretion standard. See
Commonwealth v. Angiulo, 415 Mass. 502, 520 (1993).
As an initial matter, we conclude that the judge here did
not abuse his discretion in determining that the Commonwealth
had established, by a preponderance of the evidence, a joint
venture between Snow and the defendant to murder Chrapan and
Lyon. Snow had made disparaging comments about two homeless men
when he and the defendant first encountered them in Bare Cove
Park. A day or two later, Snow asked Burgess to drive him and
the defendant to the vicinity of Bare Cove Park late at night,
and then return for them in thirty minutes. When Burgess picked
them up, Snow and the defendant had blood on their clothes and
they were carrying baseball bats, one of which had bloody spikes
protruding from its surface. Snow told the defendant to get rid
of these items, and the defendant said that he would. Snow
proceeded to bury behind his mother's house a bag containing a
human hand. Several weeks later, the badly decomposed bodies of
two men, one of whom was missing a hand, were found in an
abandoned ammunition bunker in Bare Cove Park. The defendant
telephoned Burgess and informed her of the discovery. Based on
the entirety of this evidence, the Commonwealth satisfied its
burden of proof as to the existence of a joint venture. The
question then becomes whether the out-of-court statement made by
10
Snow in his April 26, 2007, letter exceeded the scope of the
joint venture.
It is well established that the joint venture exception to
the hearsay rule does not apply to statements made after the
joint venture has ended. See Commonwealth v. Colon-Cruz, 408
Mass. 533, 543 (1990) (criminal enterprise ended when joint
venturer apprehended). See also Stewart, 454 Mass. at 537. "At
that point, the joint venturers no longer share the commonality
of interests which is some assurance that their statements are
reliable." Colon-Cruz, supra. See Bongarzone, 390 Mass. at
340. However, "[s]tatements made in an effort to conceal a
crime, made after the crime has been completed, may be
admissible under the joint venture exception because the joint
venture [remains] ongoing, with a purpose to ensure that the
joint venture itself remains concealed." Carriere, 470 Mass. at
11. See Commonwealth v. Freeman, 430 Mass. 111, 117 (1999)
(statements made subsequent to crime when coventurers are
attempting to evade arrest are admissible); Colon-Cruz, supra at
545 (where joint venturers attempted to conceal evidence of
crime and to avoid detection and detention, interests "still
were closely bound together, tending to ensure the reliability
of their statements"). In essence, the inquiry to determine
whether a statement was made during the pendency of a criminal
enterprise and in furtherance of it "focuses not on whether the
11
crime has been completed, but on whether a joint venture was
continuing." Stewart, supra, citing Braley, 449 Mass. at 322.
"Absent clear indication that the venture [has] ended, it is
reasonable to infer that concealment of the venture [is]
ongoing." Stewart, supra.
Generally speaking, as the defendant points out, our
appellate courts thus far have deemed admissible statements made
by joint venturers during the so-called concealment phase of
their criminal enterprise when such phase is relatively close in
time to the commission of the crime. See, e.g., Bright, 463
Mass. at 425, 436-437 (statements made "in the days following
the shooting" regarding efforts to conceal crime were
admissible); Angiulo, 415 Mass. at 506-507, 518-520 (statements
made approximately three weeks after murder urging associates to
keep silent deemed admissible where joint venture not yet
terminated when statements made); Commonwealth v. Ali, 43 Mass.
App. Ct. 549, 562 (1997) (statements made "during the four days
following the crime" supported inference that joint criminal
enterprise had not ended and were admissible). Cf. Commonwealth
v. Rankins, 429 Mass. 470, 474 (1999) (letter written by
coconspirator to defendant approximately three months after
conspiracy began but two years before murder committed was
admissible). However, as we have pointed out, the relevant
consideration is not whether the statements of a joint venturer
12
were made close in time to the commission of a crime, but
whether the joint venture remained ongoing at the time the
statements were made.
Here, notwithstanding the fact that nearly two years had
elapsed between the commission of the murders and Snow's
statement to the defendant in his April 26, 2007, letter that
the defendant had "made [his] bones," the two men remained
actively engaged in an effort to conceal their involvement in
the crimes and thereby evade arrest. In his December, 2006,
letter to the defendant, Snow expressed his concerns that
Burgess knew too much, was plotting against them, and "need[ed]
to be" buried. In his subsequent letter to the defendant in
April, 2007, Snow provided Burgess's address and gave the
defendant instructions to burn down her house. A month or two
later, the defendant went to Burgess's home and told her
roommate why he was there, although the defendant ultimately
decided that he was unable to commit the act of arson. Based on
these circumstances, we conclude that there was sufficient
evidence to support the judge's determination that the joint
venture remained ongoing at the time Snow wrote to the defendant
that he (the defendant) had "made [his] bones." Although it was
made a significant period of time after the murders of Chrapan
and Lyon, this statement was not outside the scope of the joint
13
venture. Accordingly, the judge did not abuse his discretion in
admitting Snow's statement.
Relying on Krulewitch v. United States, 336 U.S. 440
(1949), and Grunewald v. United States, 353 U.S. 391 (1957), the
defendant urges this court not to broaden the scope of
admissibility of out-of-court statements made by joint venturers
during the concealment phase of a criminal enterprise.
Acknowledging that the framers of the United States Constitution
intended to "afford the States flexibility in their development
of hearsay law," Crawford v. Washington, 541 U.S. 36, 68 (2004),
the defendant nonetheless asserts that under Federal law,
statements made during the concealment phase of a criminal
enterprise are not admissible because, among other reasons,
permitting such statements would improperly expand a narrow
exception to the hearsay rule. In the defendant's view, the
inference of reliability loses whatever force it may have when
it is stretched to include, years after the completion of a
crime, "desperate attempts to cover up after the crime begins to
come to light." Grunewald, supra at 403.
In Krulewitch, a case alleging conspiracy to transport a
woman across State lines for the purpose of prostitution, the
United States Supreme Court concluded that a hearsay statement
attributed to one purported coconspirator was not admissible
against another where the alleged conspiracy, if it ever
14
existed, had ended and the coconspirators had been arrested
before the hearsay statement was made. Krulewitch, 336 U.S. at
441-443. The government argued for the admissibility of the
hearsay statement "as one in furtherance of a continuing
subsidiary phase of the conspiracy," namely concealment in order
to prevent detection, conviction, and punishment. Id. at 443.
The Court was not persuaded to expand its narrow exception to
the hearsay rule for statements made in furtherance of a charged
conspiracy, declining to hold admissible "a declaration, not
made in furtherance of the alleged criminal transportation
conspiracy charged, but made in furtherance of an alleged
implied but uncharged conspiracy aimed at preventing detection
and punishment." Id. at 443-444. See Lutwak v. United States,
344 U.S. 604, 617-618 (1953). To the extent that the Supreme
Court held that the hearsay statement was not admissible because
it was not made pursuant to and in furtherance of the objectives
of the charged conspiracy, Krulewitch is not inconsistent with
our conclusions in the present case.
The defendant's reliance on Grunewald is similarly
misplaced. In that case, three petitioners were convicted of
conspiracy to defraud the United States with regard to certain
tax matters. Grunewald, 353 U.S. at 393. One of the questions
before the Court was whether the prosecution was barred by the
applicable three-year statute of limitations. Id. at 396. The
15
Court declined to adopt the government's theory that an
agreement to conceal a conspiracy after the accomplishment of
its criminal purpose can be deemed part of the conspiracy and,
therefore, can extend its duration for purposes of the statute
of limitations. Id. at 398-399, 402, 406. Sanctioning such a
theory, the Court reasoned, "would for all practical purposes
wipe out the statute of limitations in conspiracy cases, as well
as extend indefinitely the time within which hearsay
declarations will bind co-conspirators." Id. at 402. The Court
distinguished between "acts of concealment done in furtherance
of the main criminal objectives of the conspiracy," which are
necessary for its successful accomplishment, and "acts of
concealment done after these central objectives have been
attained, for the purpose only of covering up after the crime"
(emphasis in original). Id. at 405.
Here, the challenged statement in Snow's letter dated April
26, 2007, was not made after his criminal enterprise with the
defendant had been accomplished. Rather, the statement was part
and parcel of their ongoing joint venture to murder Chrapan and
Lyon, to conceal their involvement in the crimes, and to avoid
detection and arrest by eliminating a potential witness who knew
too much about their activities. The concern expressed by the
Supreme Court in Grunewald, 353 U.S. at 402, that expanding the
life of a conspiracy effectively would eliminate the statute of
16
limitations in conspiracy cases, has no bearing on the present
case given that there is no statute of limitations in a murder
case. See G. L. c. 277, § 63 ("An indictment for murder may be
found at any time after the death of the person alleged to have
been murdered"); Commonwealth v. Dixon, 458 Mass. 446, 455 n.21
(2010) ("The Legislature has declined to enact a statute of
limitations for murder"). Cf. Dutton v. Evans, 400 U.S. 74, 80-
83 (1970) (plurality opinion) (policy considerations pertaining
to hearsay exception in Federal conspiracy trials that preclude
out-of-court statements made when conspirators are engaged in
nothing more than concealment of criminal enterprise have no
bearing on State prosecution for substantive offense of murder).
That said, this court is cognizant of the fact that the
commonality of interests among joint venturers may change over
an extended period of time, potentially diminishing the
reliability of their statements. We caution that our decision
today should not be interpreted as simply extending indefinitely
the time within which the out-of-court statements of joint
venturers may be admissible against each other. A trial judge
must give careful consideration to whether such statements
actually were made "both during the pendency of the cooperative
effort and in furtherance of its goal." Colon-Cruz, 408 Mass.
at 543, quoting White, 370 Mass. at 708-709. This requires a
fact-intensive analysis. Here, the judge did not err in
17
determining that the specific facts concerning the joint venture
between Snow and the defendant warranted the admission of Snow's
statement that the defendant had "made [his] bones," expressed
nearly two years after the commission of the murders.
3. Admission of Burgess's testimony. The defendant also
challenges the admission of Burgess's testimony that she heard
Snow tell the defendant in the immediate aftermath of the
murders that he (the defendant) had "made his bones." In the
defendant's view, this statement was not made in furtherance of
an ongoing joint venture, and the judge's conclusion to the
contrary was based on speculation. The defendant also contends
that Snow's statement was not admissible because it was made in
Burgess's presence, potentially revealing the crimes to an
uninvolved third party. We disagree with the defendant's
arguments.
Snow's statement to the defendant was made right after the
men returned to the defendant's home from Bare Cove Park and
prepared to dispose of their bloody clothes and weapons. The
judge reasonably could infer that Snow made the statement to
praise the defendant for his participation in the murders, to
reinforce the men's trust in and loyalty to each other, and to
encourage the defendant's active participation in the
concealment phase of their criminal enterprise. See Stewart,
454 Mass. at 537 (judge can infer existence of ongoing joint
18
venture in absence of clear indication that venture had ended).
See also Burton, 450 Mass. at 62-64 (testimony regarding
conversation that took place immediately after murder when joint
venturers still were together, discussing what had happened, and
when murder weapon was hidden in effort to evade detection
deemed admissible); Colon-Cruz, 408 Mass. at 544-545
(declarations made after shooting deemed admissible where joint
venture had not terminated given that coventurers "were
attempting actively to conceal evidence of the shooting and to
avoid detection and detention"). That being the case, the judge
properly determined that Snow's statement was made in
furtherance of his joint venture with the defendant and,
therefore, was admissible.
We have said that the "'[c]onfessions or admissions of
conspirators or joint venturers' to strangers or third parties
unsympathetic to the goals of the venture 'are not admissible
. . . as vicarious statements of the other members of the
conspiracy or joint venture.'" Bright, 463 Mass. at 433 n.16,
quoting Bongarzone, 390 Mass. at 340 n.11. Here, Snow did not
confess anything or make any admissions to Burgess. Rather, he
congratulated the defendant on his participation in the murders,
and Burgess overheard their conversation. Furthermore, Burgess
was not a stranger who was unsympathetic to the goals of the
joint venture. To the contrary, Burgess was friendly with Snow
19
and the defendant, she drove them to and from Bare Cove Park,
and she spent time with them in the defendant's basement as they
prepared to get rid of incriminating evidence. Burgess also
assisted, perhaps unwittingly, in the disposal of Chrapan's
severed hand. The mere presence of third parties does not make
the joint venture exception to the hearsay rule inapplicable.
See, e.g., Commonwealth v. Wood, 469 Mass. 266, 278-281 (2014)
(statements made by joint venturer to girl friend on night of
murder and several days later deemed admissible); Braley, 449
Mass. at 319-320 (once joint venture established, statements
made by coventurer to girl friend in aftermath of shooting
deemed admissible against defendant).
Judgments affirmed.