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 midtrial request for a hearing under Franks v. Delaware, 438 U.S. 154 (1978); that the prosecutor's closing argument was improper; and that a key witness, Kelly Burgess, was incompetent to testify. We affirm.
Facts.
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.
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,
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
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."
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 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 (2014), quoting from Commonwealth v. Burton, 450 Mass. 55, 63 (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
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 (1968) (Bruton). The defendant's right to confrontation is not implicated because statements made by coconspirators during their joint venture are not created for use at trial and are therefore not "testimonial" within the meaning of Crawford v. Washington, 541 U.S. 36 (2004). See Commonwealth v. Carriere, supra at 8-9. Bruton has no application because if Snow's out-of-court declarations qualify as coconspirator statements, they are admissible against the defendant personally. See Commonwealth v. Clarke, 418 Mass. 207, 218 (1994).
Nonetheless, the statements must qualify for the joint venture exception to be admissible. The defendant argues that Burgess's testimony concerning Snow's first statement to the defendant was not admissible as a coconspirator statement because Burgess was not a member of the conspiracy. The defendant did not make this argument at trial.
Although Burgess was not a joint venturer with Snow and the defendant, the fact that she overheard the conversation between them does not disqualify it from the coconspirator exception. Burgess was not a "stranger[] or third part[y] unsympathetic to the goals of the venture." Commonwealth v. Bright, 463 Mass. 421, 433 n.16 (2012). To the contrary, she was a friend of the two men and assisted, perhaps unwittingly, in the concealment of highly incriminating evidence. Unlike the attorney-client privilege,
With respect to the statement in Snow's letter, the defendant argues that it was inadmissible because it was written two years after the crime and long after the object of the conspiracy had been achieved.
At the outside limit of this line of cases is Commonwealth v. Angiulo, 415 Mass. 502, 519-520 (1993), where the challenged statements were made approximately three weeks after the object of the conspiracy was attained, but still marked "a desire to conceal the fact of the killing and the identity of the killers." Because the statements were "in furtherance" of the initial criminal conspiracy, they were still "minimally reliable" and thus properly admitted. Id. at 518, 520.
The defendant argues that the admission of Snow's letter strains to the breaking point the rule and rationale for admitting coconspirator statements, which requires not only that the statements be "in furtherance of" the conspiracy, but also "during the pendency" thereof. Commonwealth v. Carriere, 470 Mass. at 8. After all, "every conspiracy will inevitably be followed by actions taken to cover the conspirators' traces." Grunewald v. United States, 353 U.S. 391, 402 (1957). Taken to its extreme, the Massachusetts rule would "extend indefinitely the time within which hearsay declarations will bind co-conspirators." Ibid.
We do not address the defendant's argument that Snow's letter, written two years after the murders
Even in jurisdictions that do not recognize efforts towards concealment as a "continuing subsidiary phase of the conspiracy," Krulewitch v. United States, 336 U.S. 440, 443 (1949), such statements may nonetheless be admitted if there is "an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission," Grunewald v. United States, supra at 404, or if concealment is the objective of a separate agreement formed after completion of the original conspiracy. See United States v. Upton, 559 F.3d 3, 14 (1st Cir.), cert. denied, 558 U.S. 949 (2009) ("[A]cts of concealment done after these central objectives have been attained for the purposes of covering up after the crime" admissible if government presents "some proof of an express original agreement to engage in the acts of concealment"); Blecha v. People, 962 P.2d 931, 938 (Colo. 1998) (coconspirator statements made after conspirators attain objective of conspiracy not admissible unless proponent shows "the objectives of the original conspiracy include such an agreement or that there exists a separate conspiracy to conceal"); State v. Harris, 141 Idaho 721, 725 (2005) (same).
We are satisfied that the evidence presented at trial, independent of Snow's letter, showed an "adequate probability of the existence of a common venture," Commonwealth v. Bright, 463 Mass. at 435 (citations omitted), between the defendant and Snow to silence witnesses, so that the statements in Snow's letter were admissible as part of "a new and distinct joint venture," Commonwealth v. Bongarzone, 390 Mass. at 343, with the defendant. After receiving a letter from Snow, the defendant went to the apartment where Burgess and Amaral lived, with the intent to burn it down. Amaral saw the defendant open the trunk of his car, which contained a white, five-gallon bucket. When Amaral intercepted the defendant (who was empty handed) on the stairs, the defendant admitted he had come, at Snow's request, to burn the house down. Accordingly, the contents of the letter were admissible under the joint venture exception.
Finally, the defendant argues that Snow's statement was inadmissible because he wrote the letter while he was incarcerated.
Here, however, Snow's imprisonment was not inconsistent with the joint venture exception. Unlike the joint venturers in Commonwealth v. Santos, supra at 293, who "had been arrested for their involvement in the killing," Snow was in custody on an unrelated matter and before anyone was charged with the Bare Cove Park murders. See Commonwealth v. Leach, 73 Mass.App.Ct. 758, 766 (2009) (although the joint venturers were imprisoned, statements were admissible because they were made shortly after the crime and for the purpose of concealment).
Renewed motion for a Franks hearing. The defendant also argues that Snow's letter, which the police found in a box in the defendant's bedroom during the execution of a warrant to search his Weymouth home, should have been suppressed. He claims that the application for the search warrant contained statements
On the seventh day of trial, the defendant filed a renewed motion for a Franks hearing
A hearing on a Franks motion is required upon "a substantial preliminary showing" that the affiant made a material, false statement either intentionally or with reckless disregard for the truth. Commonwealth v. Ramos, 402 Mass. 209, 215 (1988). Commonwealth v. Douzanis, 384 Mass. 434, 437-441 (1981). The defendant did not make a substantial showing. Courage was an extremely unreliable witness. He claimed to have a head injury, and the judge found it necessary to suspend his testimony, have him examined by a court clinician, and recall him the next day. The affiant, Sergeant Leonard Coppenrath, testified at trial that he "believed" Courage had told him that the defendant kept letters and other artifacts both at his house in Hingham and in Weymouth. Coppenrath's affidavit further stated that Courage was not the only witness who provided this information. "There was no showing that the affiant had any reason to doubt the truth of the statements given to him." Commonwealth v. Nine Hundred & Ninety-Two Dollars, 383 Mass. 764, 775 (1981).
Prosecutor's closing argument. The defense at trial was that Eric Snow committed the murders — possibly with the assistance of David Courage — and that the defendant was "nothing more than a pathetic pawn." With respect to the views that Snow expressed in telephone conversations with the defendant, recorded while Snow was in prison, defense counsel argued that the defendant "was not capable of having that type of viewpoint."
During the prosecutor's summation, he replayed portions of a telephone conversation between the defendant and Snow. In this conversation, referring to photographs of Burgess's children that
The defendant claims that these comments require reversal of his convictions because the prosecutor improperly urged the jurors to consider the defendant's conduct long after the crime had been committed on the issue of the defendant's intent. The defendant timely objected at trial. Noting that consciousness of guilt evidence is not normally relevant to the issues of deliberate premeditation or malice aforethought, see Commonwealth v. Blaikie, 375 Mass. 601, 605-606 (1978); Commonwealth v. Cohen, 412 Mass. 375, 392 (1992); Commonwealth v. Niland, 45 Mass.App.Ct. 526, 529 (1998),
We disagree. If the jurors viewed Snow as the leader of the venture to murder the victims, an important issue at trial was whether the defendant shared Snow's intent. See Commonwealth v. Jones, 6 Mass.App.Ct. 750, 758-759 (1978) ("It is well settled that to hold a person criminally responsible for the acts of another it must be shown that the passive party shared the mental state required to convict the active party of the crime charged and that the passive party intentionally assisted the active party in that
"Prosecutors are entitled to argue theories supported by the evidence and to suggest fair inferences from the evidence (which inferences need only be reasonable and possible, not necessary or inescapable)." Commonwealth v. Correia, 65 Mass.App.Ct. 27, 31 (2005). The prosecutor's remark did "not exceed the bounds of fair inference." Ibid.
Competency of Burgess to testify. The defendant argues that Kelly Burgess's answers to questioning on cross-examination cast doubt as to her competency as a witness and that the judge should have held a competency hearing sua sponte. See Commonwealth v. Hill, 375 Mass. 50, 54 (1978); Commonwealth v. Robbins, 431 Mass. 442, 447-448 (2000), quoting from Pate v. Robinson, 383 U.S. 375, 385 (1966) ("The judge ... must raise the question sua sponte if sufficient reason exists to doubt the [witness's] competency").
Defense counsel cross-examined Burgess with several prior inconsistent statements in, and omissions from, her grand jury testimony. After pressing her with her prior testimony, defense counsel repeatedly asked Burgess, "Did you lie at the grand jury in a first degree murder case?" She repeatedly responded, "I didn't lie," and further defended herself with explanations such as, "I bury things," "I can't handle it," "I was scared to be involved in something like that," and "I didn't tell them everything at first."
Burgess's responses to defense counsel's vigorous cross-examination did not demonstrate an insufficient understanding of the difference between truth and falsehood. See Commonwealth v. Brusgulis, 398 Mass. 325, 329 (1986). Indeed, she acknowledged that she had omitted facts from her grand jury testimony. The judge's action in ordering an evaluation of David Courage showed that he was keenly aware of the issue of witness competency. He did not abuse his wide discretion by failing to raise
Judgments affirmed.