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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.
