Commonwealth v. Winquist

• Decision Date: 03 August 2015
• Docket Number: No. 13–P–1545.,13–P–1545.
• Citation: 35 N.E.3d 366,87 Mass.App.Ct. 695
• Parties: COMMONWEALTH v. James S. WINQUIST.
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 695

35 N.E.3d 366

COMMONWEALTH

v.James S. WINQUIST.

No. 13–P–1545.

Appeals Court of Massachusetts, Plymouth.

Argued Feb. 4, 2015.

Decided Aug. 3, 2015.

Leslie W. O'Brien, Boston, for the defendant.

Suzanne D. McDonough, Assistant District Attorney, for the Commonwealth.

Present: GREEN, GRAINGER, & MASSING, JJ.

Opinion

MASSING, J.

The defendant, James S. Winquist, appeals from two convictions of second-degree murder. He claims that two statements of Eric Snow, his joint venturer in the murders, were erroneously admitted against him as coconspirator statements; that the trial judge erred by denying his mid-trial request for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)

; that the prosecutor's closing argument was improper; and that a key witness, Kelly Burgess, was incompetent to testify. We affirm.

Facts.¹ One morning in May, 2005, the badly decomposed bodies of two homeless men, William Chrapan and David Lyon, were discovered inside an abandoned cement bunker at Bare Cove Park in Hingham. The victims each had suffered complex skull fractures

, the result of blunt force and “semi-sharp” injuries. Chrapan's body was missing its right hand. The victims had been dead for approximately three weeks. Two months later, two men walking their dogs near the power lines on Elm Street in Bridgewater discovered the hand that had been severed from Chrapan's body when one of their dogs ran off and returned carrying a plastic bag containing the hand.

In September, 2007, more than two years after the discovery of the bodies, a grand jury indicted the defendant for the murders of Chrapan and Lyon. The defendant's friend Eric Snow also was charged with the murders, but he committed suicide in jail in March, 2012, about six months before the trial commenced. The jurors did not hear any evidence about the charges against Snow or the reasons for his absence from the trial.²

The defendant, Snow, and Michael Alfano were the core members of a group called the “Brotherhood of Blood” (Brotherhood), which Alfano had formed in prison so that fellow inmates who shared “white pride” or “neo-Nazi” beliefs could “look out” for one another. The defendant joined Alfano's group in 2004, when they were both serving sentences at the correctional facility in Plymouth. Snow and Alfano had known each other since they were in corrective school together as youths. Among the Brotherhood, Snow went by the nickname “Killer,” Alfano was called “Mental,” and the defendant was known as “Twisted.”

In April, 2005, the defendant was living in Hingham, down the street from Bare Cove Park. One day the defendant, his girlfriend, Snow, and Kelly Burgess, a woman who had recently befriended Snow and the defendant,³ went for a walk to Bare Cove Park, where they encountered two homeless men washing up by the water. When Burgess offered them money to buy coffee, Snow slapped the money from her hand and made disparaging comments about them.

A day or two later, Burgess was hanging out at the defendant's house with the defendant and Snow. Around 11:00 p.m. , Snow asked Burgess to drive him and the defendant down the street. She gave them a ride to the Stop and Shop parking lot, across the street from Bare Cove Park, and Snow asked her to return thirty minutes later to pick them up. After watching an episode of “The Honeymooners” at the defendant's house, Burgess drove back to the Stop and Shop and waited. Within a few minutes the defendant and Snow emerged from the woods across the street and got into Burgess's car. She drove them back to the defendant's house, where they all went downstairs to the basement. Burgess saw that Snow was covered with blood, and the defendant had blood on the bottom of his pants and boots. Each was carrying a baseball bat; bloody spikes protruded from the bat in Snow's hands.

The defendant and Snow changed clothes, putting the blood-soiled clothes and the bats in a bag on the floor. Snow told the defendant to “get rid of them,” and the defendant said that he would. Burgess asked Snow what he was talking about, and he replied it was none of her business. Burgess and Snow then left together, but before they left, Snow told the defendant that “he

made his bones.” Among members of the Brotherhood, this expression meant “killing somebody, putting in work that would prove you worthy” of membership in the group.

Burgess drove Snow to his mother's home in Bridgewater. Snow directed her to drive to the dirt road behind the house, near the power lines. Snow took a black bag from the back seat and left it in the car while he walked over to a telephone pole and started digging a hole with his bare hands. Burgess peeked into the bag and saw that it contained a human hand. Snow buried the bag containing the hand in the hole he had dug.

David Courage, who lived across the street from the defendant in Hingham, was at the defendant's house the day that news broke of the discovery of the victims' bodies in Bare Cove Park. In the basement, the defendant pointed out to Courage that the handsaw and the spiked baseball bat that he kept there were missing. The defendant told Courage that he and Snow had rousted the victims from their tent at the park, “started whacking them” with the spiked bat, and “cut the hand off as a souvenir.”

Katelyn Glynn, a friend of the defendant's girlfriend, visited the defendant's house almost every day that summer. There she met the defendant, Snow, Alfano, and Courage. Toward the end of the summer, she heard the defendant and Snow talking about the Bare Cove Park murders. The defendant told Snow “that he had a present for Michael [Alfano] when he got out of jail and it was a hand.” A few months later, when Glynn learned that Snow had been arrested, she asked the defendant if Snow's arrest was related to the murders. The defendant said, “No, because if that was the case, I'd be fucked, too.”

In July, 2005, at a party at the defendant's house, Courage showed Alfano a bag containing a human hand and told Alfano that he had “made his bones.” In February, 2006, Alfano returned to jail. He was released after testifying before a grand jury that Courage had told him that Courage had killed the two men at Bare Cove Park and had showed him the hand to prove it. In May, 2006, Alfano asked the defendant about the murders and whether Courage or the Brotherhood had really been involved. The defendant told Alfano that “he and Eric [Snow] had, in fact, gone down there, Eric brought him down there, and that, in fact, it was not Courage.” The defendant told Alfano that Burgess had driven them to the park and that, “They walked up to the campsite, found the guys sleeping. Eric hit one guy with a bat. And hit him again. Apparently the other guy come [sic ] to and was asking what was going on. And they hit him, too, with the bat.”

On April 26, 2007, Snow, who was then in prison serving an unrelated sentence, wrote a letter to the defendant on the occasion of the second anniversary of the murders.⁴ In the letter, Snow wrote, “You made your bones while the rest smoked them.” Suspecting that certain of their friends were planning to tell the police about the murders, Snow said, “[W]e know who the real threats are and what needs to become of them.” He provided the defendant with the address of Kelly Burgess and another individual, Jack Amaral, on East Main Street in Brockton, and instructed him to “make sure you take out Beast⁵ as well.”

In June, 2007, the defendant drove to East Main Street in Brockton, where Burgess lived with Amaral. Amaral saw the defendant park his car and open the trunk, revealing a white, five-gallon bucket. As the defendant was climbing the stairs to Burgess's and Amaral's apartment without the bucket, Amaral confronted him. The defendant told Amaral that Snow had sent him there to set their house on fire.

Instructed on first-degree murder on theories of extreme atrocity and cruelty and deliberate premeditation, second-degree murder, and joint venture liability, the jury convicted the defendant of two counts of second-degree murder.

Admission of coconspirator statements. The defendant contends that the trial judge wrongly admitted two statements attributed to Eric Snow against him under the coconspirator or joint venture exception to the hearsay rule: Burgess's testimony that as the defendant and Snow were disposing of their bloody clothes and weapons immediately after the crime, Snow told the defendant that “he made his bones,” and the letter that Snow wrote to the defendant from prison on the second anniversary of the murders, also saying, “You made your bones.”

“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.” Commonwealth v. Carriere, 470 Mass. 1, 8, 18 N.E.3d 326 (2014)

, quoting from Commonwealth v. Burton, 450 Mass. 55, 63, 876 N.E.2d 411 (2007). See Mass. G. Evid. § 801(d)(2)(E) (2014) (“A statement of a coconspirator or joint venturer made during the pendency of the cooperative effort and in furtherance of its goal when the existence of the conspiracy

or joint venture is shown by evidence independent of the statement” is not excluded by the hearsay rule). This rule is rooted in “a belief that ‘[t]he community of activities and interests which exists among the coventurers during the enterprise tends in some degree to assure that their statements about one another will be minimally reliable.’ ” Commonwealth v. Bongarzone, 390 Mass. 326, 340, 455 N.E.2d 1183 (1983)

, quoting from Commonwealth v. White, 370 Mass. 703, 712, 352 N.E.2d 904 (1976).

To dispel the first of the defendant's contentions on appeal, we observe that the admission of the coconspirator statements does not present any issue under the confrontation clause of the Sixth Amendment to the United States Constitution or under Bruton v. United States, 391 U.S. 123, 135–136, 88 S.Ct. 1620, 20 L.Ed.2d...