Commonwealth v. Chalue

• Citation: 486 Mass. 847,162 N.E.3d 1205
• Decision Date: 23 February 2021
• Docket Number: SJC-12457
• Parties: COMMONWEALTH v. David T. CHALUE.
• Court: United States State Supreme Judicial Court of Massachusetts

486 Mass. 847

162 N.E.3d 1205

COMMONWEALTH

v.David T. CHALUE.

SJC-12457

Supreme Judicial Court of Massachusetts, Berkshire..

Argued November 6, 2020.

Decided February 23, 2021.

Andrew S. Crouch, Boston, for the defendant.

David F. Capeless, Special Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

LOWY, J.

As Tropical Storm Irene raged through western Massachusetts during the late night and early morning hours of August 27 and 28, 2011, David Glasser, Edward Frampton, and Robert Chadwell were murdered. Their dismembered bodies, each with multiple gunshot and stab wounds, were found buried in plastic bags. Glasser was scheduled to testify against Adam Lee Hall, a sergeant at arms in a local chapter of the Hells Angels motorcycle club, regarding a previous altercation between Hall and Glasser. The Commonwealth's theory of the case was that Hall and two of his acquaintances, Caius Veiovis and David Chalue (the defendant), killed Glasser to prevent him from testifying against Hall in two pending criminal cases. Frampton, Glasser's roommate, and Chadwell, who was visiting Glasser and Frampton's apartment at the time, were killed because they were witnesses to Glasser's kidnapping.

Hall, Veiovis, and the defendant were tried separately, and respective juries convicted each man of three counts of murder in the first degree.¹ We previously affirmed both Hall's and Veiovis's convictions of murder in the first degree. See Commonwealth v. Hall, 485 Mass. 145, 171, 147 N.E.3d 1078 (2020) ; Commonwealth v. Veiovis, 477 Mass. 472, 490, 78 N.E.3d 757 (2017).²

On appeal, the defendant claims reversible error by the trial judge for (1) giving a charge in accordance with Commonwealth v. Rodriquez, 364 Mass. 87, 101-102, 300 N.E.2d 192 (1973) (Appendix A), and Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851) ( Tuey- Rodriquez instruction), to an individual juror after the jury had been polled; (2) admitting various categories of unduly prejudicial character evidence; (3) admitting Hall's statements under the coventurer exemption to the rule against hearsay; and (4) denying the defendant's pretrial motion to suppress. He also contends that he is entitled to a new trial because the prosecutor made numerous improper statements in his opening and closing remarks. We affirm the convictions and conclude that the defendant is not entitled to relief under G. L. c. 278, § 33E.

1. Background. "We recite the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion." Commonwealth v. Tavares, 484 Mass. 650, 651, 144 N.E.3d 268 (2020). Because the defendant does not dispute that there was sufficient evidence of Hall's and Veiovis's culpability in the killings, we focus primarily on the evidence implicating the defendant in the joint venture.

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. Hall was later arrested for the assault. 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 false kidnapping charge. The scheme backfired, and resulted in further charges being filed against Hall.³

The defendant entered the scene in the summer of 2011, when he started spending time with Hall. At the time, Hall's trial for his charged conduct against Glasser was pending.

The timeline of events in the days before and after the killings is important in evaluating the evidence implicating the defendant's participation in the killings. On the evening of Friday, August 26, Hall, Veiovis, the defendant, and Katelyn Carmin (a friend of Hall) drove around in Hall's tan Buick⁴ visiting several bars and eventually the Hells Angels clubhouse in Lee. Hall ranted about Glasser, saying he was going to "kill that motherfucker" for ruining his life. In response, Veiovis said things that "fuel[ed] up the fire," but the defendant only added, "You'll be all right, everything is going to be fine." At the clubhouse, the group rode all-terrain vehicles. When Carmin was driving one of the vehicles with either Veiovis or the defendant on the back, Hall told her to be careful because he needed Veiovis and the defendant "for a job."

The next night, Hall, Veiovis, and the defendant again spent time at the Hells Angels clubhouse, where they met up with two women, Allyson Scace and Kayla Sewell. Afterwards, the group decided to go to Veiovis's apartment in Pittsfield. The defendant, Veiovis, and the two women traveled together in Sewell's car. Hall drove separately, stopping at his friend Steven Hinman's house in Lenox, where he showed Hinman a .45 caliber semiautomatic pistol that he had tucked in his vest, as well as a bag that contained a .44 caliber Magnum revolver, a .22 caliber Derringer, and an M-16-type weapon. When Hall arrived at Veiovis's apartment, he pulled the firearms out of a dog food bag and asked Veiovis where he could find gloves and cleaning fluid. Veiovis directed him to the kitchen, and then went upstairs with Sewell. The defendant was sitting on the couch during this exchange. While Veiovis and Sewell were upstairs, Hall and the defendant disassembled and cleaned the firearms.

Late that night or early Sunday morning, the three victims were kidnapped from Glasser's Pittsfield apartment. The three men were last seen sometime after 10 P.M. , when Glasser's upstairs neighbor came down and asked Glasser to move his truck. The last call made from Chadwell's cell phone was at 11:21 P.M. Sometime before 2 A.M. on Sunday, the upstairs neighbor heard banging on the front door of Glasser's apartment.

On Sunday at around 1:30 A.M. , Hall arrived at the residence of his friends, the Sutton family, in Pittsfield. He went upstairs and spoke briefly to Rose Dawson and her friend Alexandra Ely. Ely was Hall's girlfriend and was staying overnight with Dawson at the Sutton residence. Hall asked Dawson if he could borrow her cell phone. She gave it to him, and he said he would be back soon. Hall got into the passenger's side of a Jeep and left. It was unclear whether there were other people in the Jeep.

Hall was next seen at a convenience store in Pittsfield at around 5:30 A.M. on Sunday, looking wet and dirty. He purchased three candy bars and a pack of Marlboro cigarettes using cash that was crumpled and wet. He left the store, but returned a couple minutes later and bought Black and Mild cigars. Hall got into the driver's side of his Buick and drove away; the store operator could not see if anyone else was in the car with him. Hall did not smoke. Veiovis, however, smoked Black and Mild cigars, and the defendant smoked Marlboro cigarettes.

Shortly thereafter, Hall returned to the Sutton residence in the Buick, parked it on the front lawn, and then got picked up by Veiovis driving his Jeep. Nobody else was in the Jeep with Veiovis.

Sometime after 9 A.M. on Sunday, Hall, Veiovis, and the defendant arrived at the Sutton residence in Veiovis's Jeep. Hall gave Dawson and Ely the keys to his Buick and a handful of "wet and yucky" cash, and asked them to go to a grocery store in Peru to purchase bleach and food for breakfast. He told them to wash their hands after touching the money, and also told them not to look in a bag on the floor on the passenger's side of the car. Despite Hall's prohibition, Dawson looked in the bag and saw a glove that looked like a batting glove. While Ely and Dawson were at the store, Hall called them and told them not to buy the bleach after all.

Ely and Dawson then met the three men at Hall's house in Peru to eat breakfast. The three men looked tired and wet, and the defendant was in bed. Hall returned Dawson's cell phone to her and told her to delete the call log and not tell anyone he had borrowed it. Dawson replied, "I'm not stupid."

At around 2 P.M. on that same Sunday, Hall went to the home of his friend David Casey in Canaan, New York. Hall told Casey he was having trouble with a car in Becket and needed somewhere to park it. Casey called his friend Alan Pavoni. Pavoni agreed to let Hall park in his 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 said that when he tried to shoot Glasser, the gun misfired, and as he tried to rechamber another round, Glasser ran into the woods. Someone went after Glasser and shot but did not kill him, instead bringing Glasser back to Hall so that Hall could kill him. Casey thought that Hall named the person who went after Glasser as "Davey," but he was not sure.⁵ Hall went on to describe the murders, saying that Glasser was "begging for his life" and saying "please don't kill me" and "I won't testify." In response, Hall told Glasser, "I told you what would happen if you witnessed against me." Hall told Casey that they had tortured and cut up the other victims. Hall said that it had been raining through all this and that he "really enjoyed it because he liked doing things in the rain."

Hall asked Casey to bury the men on his property. Casey refused. Hall then asked if Casey was still doing work with his excavator on Daniel Cole's property in Becket. Hall asked Casey to dig a hole there with the excavator. Casey agreed, and they arranged to go there the next morning, meeting beforehand at Pavoni's nearby home. Hall also told Casey that if he agreed, no harm would come to Casey's sister or her boyfriend. Casey was "numb, nervous, [and] scared," and agreed because he was afraid of repercussions.

Sometime later on Sunday afternoon or evening, Hall, Veiovis, and the defendant returned to the Sutton residence in the Jeep, and exchanged it for the Buick. At around 5 or 6 P.M. , Hall dropped off the Buick at the Pavoni house in Becket. One or two other people arrived in the Buick...