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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 outof-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 thirdfloor 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.