Commonwealth v. Winquist

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13-P-1545 Appeals Court

COMMONWEALTH vs. JAMES S. WINQUIST.

No. 13-P-1545.

Plymouth. February 4, 2015. - August 3, 2015.

Present: Green, Grainger, & Massing, JJ.

Joint Enterprise. Homicide. Evidence, Common criminal
enterprise, Joint enterprise, Statement of codefendant,
Acts and declarations of conspirator, Hearsay, Argument by
prosecutor, Competency. Search and Seizure, Affidavit,
Warrant, Probable cause. Practice, Criminal, Affidavit,
Warrant, Hearsay, Argument by prosecutor. Witness,
Competency.

Indictments found and returned in the Superior Court
Department on September 28, 2007.

The cases were tried before Richard J. Chin, J.

Leslie W. O'Brien for the defendant.
Suzanne D. McDonough, Assistant District Attorney, for the
Commonwealth.

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;
2

that the trial judge erred by denying his mid-trial 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.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

1
We recite the facts in the light most favorable to the
Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677
(1979).
3

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

2
During deliberations, the jury sent a note to the judge
asking, "Eric Snow has been talked about in the past tense. Is
Eric Snow still alive today? If he is deceased, when did he
die?" The judge instructed the jury to limit its consideration
to the evidence at trial and not to speculate or do any research
about any other evidence or issue.
3
The Brotherhood nicknamed Burgess "Bigfoot."
4

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
5

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
6

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
7

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.

4
The letter was later discovered, stored in a box in the
defendant's bedroom, during the execution of a search warrant of
the defendant's residence in Weymouth, where he was then living.
5
"Beast" referred to Amaral's son.
8

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 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.
9

Bongarzone, 390 Mass. 326, 340 (1983), quoting from Commonwealth

v. White, 370 Mass. 703, 712 (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 (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.6

6
At trial, in addition to objecting to the admission of
Burgess's testimony on Bruton grounds, the defendant objected
10

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, see Commissioner of Rev. v. Comcast Corp., 453 Mass.

293, 306 (2009), the mere presence of third parties does not

make the coconspirator exception inapplicable. See, e.g.,

Commonwealth v. Clarke, supra at 210 (statement of defendant's

joint venturer to victim's cousin in an effort to prevent him

from reporting crime admissible against defendant as

coconspirator statement); Commonwealth v. Braley, 449 Mass. 316,

319-320 (2007) (testimony of joint venturer's girlfriend

concerning coconspirator statements joint venturer made during

conversation with defendant, defendant's wife, and witness-

girlfriend admissible); Commonwealth v. Wood, 469 Mass. 266,

278-281 (2014) (joint venturer's statements to his girlfriend

that the statement was made after the crime and therefore not in
furtherance thereof. This argument "has no merit in light of
undisputed evidence that the challenged statement[] [was] made
only a few hours after the crimes." Commonwealth v. Marrero,
436 Mass. 488, 494 (2002). The defendant has wisely abandoned
this argument on appeal.
11

both a few hours and a few days after crime admissible under

coconspirator statements exception). Accordingly, Burgess's

testimony qualified for the joint venture exception to the

hearsay rule, and its admission did not create any risk of a

miscarriage of justice.

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.7 In general, statements made by

coconspirators "shown to have taken place after the conspiracy

came to an end . . . are not admissible against the other

defendants." Commonwealth v. Shea, 323 Mass. 406, 414 (1948).

Commonwealth v. Bongarzone, supra at 340 n.11. However, our

cases have recognized that acts of concealment performed in the

aftermath of a joint venture may extend the duration of the

conspiracy "so that declarations of one coventurer furthering

the concealment [can] be put in evidence against another."

Commonwealth v. White, 370 Mass. at 709-710 & n.8. We "regard

both the commission of the crime and the attempt to evade arrest

for the crime as part of a single, continuous joint venture."

Commonwealth v. Bright, supra at 436. See Commonwealth v.

7
The defendant raises this argument for the first time on
appeal. At trial he objected to the admission of the letter on
various other grounds: it violated Bruton and his right to
confrontation, it was not properly authenticated, and it was
unlawfully seized.
12

Stuart, 207 Mass. 563, 567 (1911) (recognizing the viability of

the coconspirator exception for statements regarding the

concealment of evidence or fruits of the crime "after the

paramount object of the conspiracy [has] been attained").8

The defendant correctly points out, however, that no

Massachusetts case has permitted the admission of coconspirator

statements for the purpose of concealment more than a few weeks

after the conclusion of the conspiracy, let alone two years

later. See, e.g., Commonwealth v. Clarke, supra at 218-219

(coconspirator statements made one day after crime for purpose

of avoiding detection properly admitted); Commonwealth v.

Bright, supra at 425, 436-437 (statements made "in the days

following the shooting"); Commonwealth v. Ali, 43 Mass. App. Ct.

549, 562 (1997) (statements made during concealment phase

"during the four days following the crime").

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

8
In this regard, Massachusetts law diverges from the
doctrine in Federal and many State jurisdictions, which have
rejected the argument "that even after the central criminal
objectives of a conspiracy have succeeded or failed, an implicit
subsidiary phase of the conspiracy always survives, the phase
which has concealment as its sole objective." Krulewitch v.
United States, 336 U.S. 440, 443 (1949). See People v. Saling,
7 Cal. 3d 844, 852-854 (1972); State v. Caldero, 109 Idaho 80,
86-87 (1985); People v. Ryan, 263 N.Y. 298, 304-305 (1934).
13

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 murders9 with a purpose to

prevent witnesses from coming forward to reveal the crime, was

not admissible as part of "a single, continuous joint venture"

with the defendant, Commonwealth v. Bright, supra at 436,

because the record presents an adequate, alternative ground for

admitting the letter. See Commonwealth v. Va Meng Joe, 425

9
We note that "[a] trial judge has discretion to determine
whether evidence is too remote to be relevant" in this context.
Commonwealth v. McLaughlin, 431 Mass. 241, 248 (2000).
14

Mass. 99, 102 (1997) (appellate court may affirm ruling on

grounds or legal theory different from that relied on by trial

court judge if basis for affirmance is supported by record).

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).
15

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. The coconspirator exception generally does not

apply after "a joint venturer has been apprehended and

imprisoned." Commonwealth v. Colon-Cruz, 408 Mass. 533, 543

(1990). Once the participants in the joint venture have been

arrested, their commonality of interest gives way to individual

concerns about criminal liability and punishment -- the
16

paradigmatic "prisoner's dilemma."10 See Commonwealth v. Santos,

463 Mass. 273, 293 & n.20 (2012). See also Commonwealth v.

Drew, 397 Mass. 65, 71 (1986) ("Because [joint venturer's]

statement was made long after the crime while he and the

defendant were imprisoned, the statement was not admissible").

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

10
See John Nash, "Non-Cooperative Games." 54 Annals of
Mathematics 286 (1951); Kuhn, Steven, "Prisoner's Dilemma", The
Stanford Encyclopedia of Philosophy (Fall 2014 Edition), Edward
N. Zalta (ed.), at
http://plato.stanford.edu/archives/fall2014/entries/prisoner-
dilemma/ [http://perma.cc/AN7J-UNQW].
17

statements11 that were either intentionally false or made with

reckless disregard for the truth in violation of Franks v.

Delaware, 438 U.S. 154, 155-156 (1978) (Franks), and that the

trial judge erred by denying his midtrial motion for a Franks

hearing.

On the seventh day of trial, the defendant filed a renewed

motion for a Franks hearing12 after Courage testified, in

apparent contradiction of the affidavit in support of the search

warrant application, see note 11, supra, that he had never been

to the defendant's home in Weymouth and that he never told

anyone that he had. The defendant appeals from the trial

judge's denial of the renewed request.

11
The affidavit of Sergeant Leonard Coppenrath in support
of the search warrant application stated that "Witness #3,"
later identified as David Courage, told Coppenrath "that [the
defendant] retained a wooden box within his house in which he
kept various items important to him," and that "[a]mong those
items would be letters, writing, photographs, weapons and other
items, legal or otherwise, which [the defendant] wanted kept
private." The affidavit further stated, "Witness #3 and at
least one other identifiable witness stated that [the defendant]
would keep other items in his room, in the basement and in his
dresser when he lived in Hingham and still does while living in
Weymouth." According to the affidavit of the defendant filed in
support of his pretrial motion to suppress, his Hingham house
burned down in August, 2006, along with all of his possessions,
and Courage had never been to the Weymouth house, where his
family moved after the fire.
12
Prior to trial, the defendant moved to suppress the items
seized from his Weymouth home pursuant to the search warrant. A
motion judge, not the trial judge, denied the motion, including
the defendant's request for a Franks hearing with respect to
several of Coppenrath's alleged misrepresentations in, and
omissions from, the search warrant application.
18

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
19

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 Snow had received, the defendant said, "Hey, you

should cut the pictures up, and you should mail [her] the pieces

of them. . . . Like, mail her a hand." The prosecutor then

commented:

"Mail her a hand. Those words come from the defendant,
James Winquist. Does that sound like somebody who was
forced to go to Bare Cove Park that night? Who was only
there because Eric Snow, his good friend, made him go and
threatened him if he didn't? Does that sound like someone
who wasn't a willing participant? Who didn't share the
intent [to] do what they did?

Ladies and gentlemen, he was in on it. He did it. And he
was proud of it. And you can tell just from the tone of
his voice and from what he said over the telephone when you
connect it to all of the other evidence in this case. Mail
her a hand."

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);
20

Commonwealth v. Cohen, 412 Mass. 375, 392 (1992); Commonwealth

v. Niland, 45 Mass. App. Ct. 526, 529 (1998),13 the defendant

argues that the same principle should apply to any evidence of

the defendant's behavior or statements after the crime.

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 crime"). In this regard, the

defendant's boasts about his involvement in the murders are

probative of his active participation and relevant to his

culpability. See Commonwealth v. Chaleumphong, 434 Mass. 70, 80

(2001); Commonwealth v. DiRenzo, 44 Mass. App. Ct. 95, 102

(1997) (Kass, J., concurring in part and dissenting in part).

Even in the context of consciousness of guilt evidence,

"indications of a defendant's state of mind, coupled with other

13
However, a defendant's conduct following the commission
of a crime or his consciousness of guilt may properly be used to
infer premeditation. "If, for example, the evidence
demonstrates that plans for flight, concealment, or destruction
of evidence were made prior to the actual killing, such evidence
is highly probative on the issue of premeditation."
Commonwealth v. Dagenais, 437 Mass. 832, 844 n.19 (2002).
21

evidence, can be sufficient to establish guilt." Commonwealth

v. Vick, 454 Mass. 418, 424 (2009).

"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
22

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 the issue

of Burgess's competency sua sponte.

Judgments affirmed.