Commonwealth v. Winquist

• Citation: 474 Mass. 517,52 N.E.3d 105
• Decision Date: 14 June 2016
• Docket Number: SJC–12005.
• Parties: COMMONWEALTH v. James S. WINQUIST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 517

52 N.E.3d 105

COMMONWEALTH

v.James S. WINQUIST.

SJC–12005.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 8, 2016.

Decided June 14, 2016.

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

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

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 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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (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, 696, 35 N.E.3d 366 (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, 35 N.E.3d 366

. 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 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 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. 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 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, 18 N.E.3d 326 (2014)

, quoting Commonwealth v. Burton, 450 Mass. 55, 63, 876 N.E.2d 411 (2007). See Commonwealth v. Bongarzone, 390 Mass. 326, 340, 455 N.E.2d 1183 (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, 352 N.E.2d 904 (1976). In essence, “the statement of each joint venturer is equivalent to a statement by the defendant.” Commonwealth v. Stewart, 454 Mass. 527, 535, 911 N.E.2d 161 (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, 724 N.E.2d 683 (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, 974 N.E.2d 1092 (2012)

, quoting Commonwealth v. Zanetti, 454 Mass. 449, 466, 910 N.E.2d 869 (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, 867 N.E.2d 743 (2007), and cases cited. A 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, 615 N.E.2d 155 (1993).

As an initial matter, we conclude that the judge here...