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Commonwealth v. Veiovis

Supreme Judicial Court of Massachusetts, Berkshire

July 19, 2017


          Heard: November 10, 2016.

         Indictments found and returned in the Superior Court Department on October 6, 2011.

         The cases were tried before C. Jeffrey Kinder, J.

          Dana Alan Curhan (Christie L. Nader also present) for the defendant.

          David F. Capeless, District Attorney for the Berkshire District, for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.

          GANTS, C.J.

         The defendant was found guilty by a Superior Court jury on three indictments charging murder in the first degree on the theory of deliberate premeditation for the grisly killing of David Glasser, Edward Frampton, and Robert Chadwell.[1]The Commonwealth's theory of the case was that the defendant participated in these killings with Adam Lee Hall and David Chalue to prevent Glasser from testifying against Hall in two criminal cases. They kidnapped Frampton, who was Glasser's roommate, and Chadwell, who was Glasser's neighbor, simply because Frampton and Chadwell had the misfortune of being in Glasser's apartment when they entered to kidnap and later kill Glasser, and then killed Frampton and Chadwell to ensure their silence regarding the kidnapping and killing of Glasser. After the three victims were killed, the defendant, Hall, and Chalue dismembered their bodies and placed the body parts in plastic bags, and Hall arranged for the burial of the plastic bags.[2]

         The defendant presents four primary claims on appeal: (1) that the evidence of his knowing participation in these crimes was insufficient as a matter of law to support his convictions; (2) that the judge abused his discretion in admitting evidence of other acts the probative value of which was outweighed by the risk of unfair prejudice; (3) that the judge abused his discretion in admitting in evidence a statement by the defendant regarding the scars on his right arm; and (4) that the prosecutor presented facts in closing argument that were not supported by the evidence at trial. We affirm the convictions and conclude that the defendant is not entitled to relief under G. L. c. 278, § 33E.


         Because the defendant challenges the sufficiency of the evidence at trial, "we recite the evidence in the Commonwealth's case-in-chief ... in the light most favorable to the Commonwealth." Commonwealth v. Penn, 472 Mass. 610, 611-612 (2015), cert, denied, 136 S.Ct. 1656 (2016). We focus primarily on the evidence implicating the defendant in the joint venture, because the defendant does not dispute that there was abundant evidence that Hall and Chalue participated in the killings.

         The circumstances leading up to the killings began in July, 2009, when Hall beat Glasser with a baseball bat because he believed that Glasser had stolen and sold motor vehicle parts that belonged to Hall. While Glasser was being interviewed by a State police trooper two days later, Hall threatened Glasser in a telephone call. The State police arrested Hall that day and recovered a baseball bat from Hall's vehicle.

         In July, 2010, while the charge against Hall of assault and battery by means of a dangerous weapon was pending, Hall concocted a scheme to discredit Glasser by framing him on a false kidnapping charge. As part of this scheme, a friend of Hall, Nicole Brooks, falsely reported to the police that Glasser kidnapped her and shot at her when she escaped; another friend of Hall, Scott Langdon, planted Brooks's wallet and a revolver in Glasser's truck, where they were found by police during a search of the truck. The scheme resulted in Glasser's arrest, but the police soon exonerated Glasser and brought criminal charges against Hall and those who participated with him in the scheme.

         The defendant began spending time with Hall and Chalue in the latter half of August, 2011. Hall was a "sergeant [at] arms" in a local chapter of the Hells Angels motorcycle club and was described as an "enforcer." The defendant was not a member of the Hells Angels, but there was evidence that he wanted to be. He began to wear a vest with a Hells Angels insignia on the front and kept a Hells Angels sticker in his Jeep and apartment. Hall told a witness in the defendant's presence of the possibility that the defendant would get a motorcycle and become a prospective member of the Hells Angels. The defendant's employer told the police that the defendant had wanted to establish credit because he wanted to buy a motorcycle and that "you cannot be in the Hells Angels without buying the motorcycle."

         The time line of events before and after the killings is important in evaluating the weight of the evidence implicating the defendant as a participant in the killings. On Friday, August 26, 2011, Hall picked up a friend, Katelyn Carmin, in the tan Buick vehicle[3] he had purchased earlier that month; the defendant and Chalue were with him. While driving around to various bars, Hall went into a tirade about a person he called "Drummer Dave, "[4] who he said had robbed him and then "snitched" on him. Hall said he was "going to kill that motherfucker." The defendant, along with Chalue, responded to Hall by assuring him that Hall will "get him." Later that evening, they drove to the Hells Angels clubhouse in Lee, where they rode in an all-terrain vehicle. Hall told Carmin to be careful because he needed the defendant and Chalue for "a job."

         On Saturday, Hall was seen outside the building where the defendant's girl friend resided, talking to the defendant while sitting in the girl friend's pickup truck. In the early afternoon, Hall, Chalue, and the defendant went to a party held by the Springfield chapter of the Hells Angels at a tavern in Springfield; Hall and the defendant left the party together early in the afternoon and returned at approximately 4:30 P..M. Hall, Chalue, and the defendant left the tavern together at approximately 6:30 £.M., and drove away in Hall's Buick. Later that evening, Hall, Chalue, and the defendant were at the Hells Angels clubhouse in Lee; they left later to go to the defendant's house in Pittsfield. Hall drove to the defendant's home in his own vehicle but first stopped at Steven Hinman's home in Lenox. Hall showed Hinman a .45 semiautomatic pistol that he had in his vest, as well as a "dog food bag" that contained a .44 Magnum revolver, a sawed-off AR-15-type weapon, and a small revolver.

         The defendant and Chalue traveled to the defendant's home with two women, Allyson Scace and Kayla Sewall, in Sewall's vehicle after stopping at a liquor store. When Hall arrived at the defendant's home, he pulled the firearms out of the dog food bag and asked the defendant where he kept brake cleaner and gloves. The defendant directed him to a cabinet and went upstairs with Sewall. While they were upstairs, Hall and Chalue disassembled and cleaned the firearms. The defendant asked Sewall to stay, but she declined and left with Scace at approximately 9 £.M., leaving Hall, Chalue, and the defendant alone in the apartment.

         The kidnapping of the three victims in Glasser's apartment in Pittsfield occurred shortly before midnight that Saturday or early Sunday morning. Glasser's upstairs neighbor asked Glasser to move his truck at approximately 10:30 £.M. that Saturday, and saw the three victims (and a fourth man) in the kitchen of Glasser's apartment at that time. The last telephone call made from Chadwell's cellular telephone was at 11:21 £.M. Shortly after midnight, the upstairs neighbor heard banging from the front downstairs hallway, and heard the voices of Glasser and Frampton, as well as some unfamiliar voices. Hall later told a friend, Rose Dawson, that, when they arrived at Glasser's apartment, one of the victims was using a computer and another was playing a video game.

         The defendant's girl friend had returned from a hiking trip on Friday night and was at her home on Saturday night. She made a telephone call to the defendant's cellular telephone at 12:09 A.M. on Sunday, but the defendant did not answer and she left a voicemail message. She sent him a text message on his cellular telephone at 1:20 A.M., but received no reply. She telephoned him again at 1:40 A.M., and again left a voicemail message after the call was not answered.

         At approximately 1:30 A.M. on Sunday, Hall appeared at Dawson's home in Pittsfield. He asked to borrow Dawson's cellular telephone, which she gave to him; he said he would be back soon. He entered the passenger seat of a vehicle described as a Jeep Wrangler[5] and left; the defendant owned a Jeep Wrangler.

         Hall was next seen at a convenience store in Pittsfield at approximately 5:30 A.M., where he purchased three candy bars and a pack of cigarettes. Hall returned a few minutes later and purchased a pack of Black and Mild cigars. The police seized the defendant's Jeep seven days later and subsequently searched it; they found a Black and Mild cigar wrapper inside. On September 12, in a search of the defendant's apartment, to which he had recently moved, the police found four or five Black and Mild cigar wrappers in a duffle bag.

         The store clerk observed that Hall had mud on his shirt and that his boots and blue jeans were wet, as was the cash he handed over to pay for the items. Tropical Storm Irene had reached western Massachusetts during the night, bringing heavy rain and high winds for much of the night and into the morning.

         Shortly thereafter, Hall returned to the Dawson residence and parked his Buick on the front lawn. The defendant's Jeep arrived behind the Buick. Hall walked from the Buick to the Jeep and left in the Jeep.

         At approximately 10:30 A.M., Hall returned to the Dawson residence with Chalue and the defendant in the defendant's Jeep, which Hall was driving. Hall, who was wet and not wearing shoes, asked Dawson and her friend, Alexandra Ely, who was staying overnight with Dawson, to come to Hall's home to make breakfast. Hall gave them money, which was soaking wet, and told them to buy breakfast food and bleach; he also told them to wash their hands after handling the money. As Dawson and Ely drove to a supermarket in Hall's Buick, Hall telephoned Ely and told her to skip the bleach and not look in a bag in the vehicle. They looked inside the bag and saw what looked like a "batting glove or golf glove."

         When they arrived at Hall's house, the defendant's Jeep was parked in front; Hall, Chalue, and the defendant were inside. Hall returned Dawson's cellular telephone to her and told her to delete her call log and tell no one that he had borrowed it. Chalue was in bed, and the defendant sat in a recliner "sleeping" and looking "tired." Dawson and Ely left later in Hall's Buick to return home. Hall, Chalue, and the defendant retrieved the Buick from Dawson's home later that day.

         At approximately 2 £.M., Hall arrived at the home of David Casey in Canaan, New York, approximately eighteen miles from Pittsfield, in the Buick. Hall said that he was having trouble with his vehicle and asked Casey if he knew anywhere nearby where he could park it overnight. Casey called a friend, Alan Pavoni, who agreed to let Hall park the vehicle in Pavoni's driveway in Becket. Hall then told Casey that he had killed Glasser, as well as "a fat guy" and a black man who were with Glasser. He explained that he had held Glasser down and pulled the trigger, but the gun misfired. As he tried to rechamber another round, Glasser ran into the woods. "Davey" ran after him and shot him, but did not kill him. "Davey" brought Glasser back to Hall, who then shot him. Hall said the other two men were stabbed to death. He said they thought the black man was dead and left him but, when they came back, they saw him sitting on a log, moaning. Hall also said that they "chopped [the victims] up, " and added that "one of the guys really enjoyed torturing and cutting them up." Hall noted that it was "raining very hard" while this was happening.

         Hall asked if Casey was still working with an excavator at a property in Becket, and Casey said that he was. Hall then asked if Casey would do him a favor; he wanted Casey to dig a hole to bury the bodies. Hall added that, if Casey did this favor for him, he would not harm Langdon.[6] Hall wanted to go with him to dig the hole that day, but Casey said he would meet him there on Monday morning.

         Between 5 and 6 P_.M., Hall drove his Buick to Pavoni's property and parked it there; another person was with him in the Buick. A "Jeep-like vehicle" also arrived and picked up Hall.

         Hall, Chalue, and the defendant were seen late in the afternoon standing near the defendant's Jeep in the parking lot of the apartment building in Pittsfield where the defendant's girl friend resided.

         Casey met Hall as scheduled at approximately 8:30 A.M. on Monday at Pavoni's property.[7] Hall was with a man he identified as "Davey, " whom Hall assured Casey he could trust because the man was a member of the Aryan Brotherhood, and a person had to kill someone to become a member; Casey identified this man at trial as Chalue. Hall opened the trunk of the Buick and said that it was "starting to smell." Hall later drove the Buick to the property where Casey kept the excavator. Casey used the excavator to dig a large hole, and Hall opened the trunk and dropped a number of plastic garbage bags, which Hall said contained body parts, into the hole.

         On Monday afternoon, Hall and Chalue brought the Buick to a salvage yard and sold it for scrap, where it was later placed in a crusher. The interior carpets were coated with liquid, the back seat was mostly missing, and the carpet had been removed from the trunk. On Sunday, September 4, Hall, Chalue, and the defendant drove past the salvage yard in the defendant's Jeep, and then drove back in the other direction, arguably for the purpose of checking to see that Hall's Buick had actually been crushed. After they were stopped by police at a nearby gasoline station, the police seized and searched the Jeep, but found nothing of evidentiary value.

         On Friday, September 9, after Casey had revealed to police the location of the bodies, the police dug up the plastic bags containing the victims' body parts. The autopsy of the body parts revealed that all of the victims had been shot and stabbed; their neck, arms, and legs had been removed, and two of the bodies had been cut through the torso. Most of the dismemberment had been accomplished by chopping or hacking with a sharp instrument such as a butcher knife.

         On September 10, the defendant was arrested and brought to the Pittsfield police station. At the station, a State police lieutenant told the defendant that he was protecting a "rat, " referring to Hall, because Hall had offered to cooperate with the Federal Bureau of Investigation regarding the Hells Angels clubhouse in Lee a year earlier. As the defendant was walking back to his cell, the defendant said to Chalue, "[Y]ou hear what they're saying about our partner? They're saying he's a stoolie."

         On September 12, the police executed search warrants at two apartments in the same building in Pittsfield: an apartment where the defendant lived and an apartment from which he had recently moved. In the apartment where he lived, among other items that will be described later in this opinion, the police found a September 6 edition of a newspaper with an article describing the disappearance of the three victims, and an article dated September 8, describing the search for the missing men.

         D ...

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