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SJC-12094
COMMONWEALTH vs. JAMES RUTHERFORD.
Worcester. November 10, 2016. - March 16, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.
Homicide. Practice, Criminal, Argument by prosecutor, Capital
case. Evidence, Prior misconduct, State of mind.
Indictments found and returned in the Superior Court
Department on September 23, 2011.
The cases were tried before Janet Kenton-Walker, J.
Jennifer H. O'Brien for the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. A Superior Court jury convicted the defendant
of murder in the first degree on theories of deliberate
premeditation and felony-murder, in the July, 2011, death of
Francis Spokis.1 At trial, the defendant conceded that he and
1
Indictments charging the defendant with armed robbery and
assault and battery by means of a dangerous weapon were
2
his girl friend broke into the victim's home, robbed him, beat
him, and stabbed him to death. The defendant contended,
however, largely through the testimony of an expert witness,
that he was incapable of forming the intent required for murder
because he was impaired by mental illness. The defendant raises
two claims in this direct appeal. First, he argues that the
prosecutor exceeded the bounds of permissible closing argument
by engaging in a personal attack on the defendant's expert
witness, referencing facts not in evidence, and appealing to
juror sympathy. Second, the defendant maintains that the trial
judge erred by allowing the prosecutor to introduce unfairly
prejudicial evidence of uncharged misconduct. The defendant
also asks us to invoke our extraordinary power pursuant to G. L.
c. 278, § 33E, to order a new trial or reduce the verdict. For
the reasons that follow, we affirm the conviction and decline to
grant relief under G. L. c. 278, § 33E.
1. Facts. We recite the facts that the jury could have
found, reserving some facts for later discussion of particular
legal issues at hand. In the summer of 2011, the defendant and
his girl friend, Lee Anne Chesko, planned to rob the victim at
his house in Rutland over the Fourth of July holiday weekend.
The victim's wife and daughter were scheduled to take a vacation
dismissed at the conclusion of the trial on the Commonwealth's
motion.
3
in Maine that weekend, while he remained behind to do some work
on the house.
The victim had met Chesko approximately six months earlier,
and they had entered into a relationship whereby the victim gave
Chesko money and drugs in exchange for sex. Most of their
encounters took place at a Worcester auto body shop owned by the
victim. Eventually, the victim allowed Chesko to visit at his
house, and paid the costs of tuition so that Chesko could return
to college.
The defendant and Chesko recruited their former roommate,
Rody Zapata, to help with the robbery. The defendant told
Zapata that the victim had a safe at his auto body shop, and
Chesko told him that the victim kept large amounts of cash in
it. The plan was that Chesko would meet the victim at his home
and alert the defendant and Zapata that the two were alone in
the house. The defendant and Zapata were to break into the
victim's house wearing masks or bandanas and tie him up. They
also planned to tie up Chesko (to disguise her participation in
the robbery), after which the defendant and Zapata would drive
the victim to the auto body shop to open the safe.
The defendant told several relatives and a friend that he
was planning to rob someone. He asked Luz Hernandez if he could
store some items he planned to steal in a locked storage area
4
behind her apartment building; she agreed and gave the defendant
a key to the storage area.
On July 4, 2011, the defendant, Chesko, and Zapata drove to
a wooded area near the victim's house. The defendant got out of
the vehicle to "scope out" the house. While the defendant was
away from the vehicle, Chesko told Zapata that they would have
to kill the victim if he found out that she was involved in the
robbery. The defendant returned to the vehicle and removed some
knives from the trunk. Unnerved by the prospect of being caught
and "getting in trouble," Zapata decided not to continue with
the plan, and the defendant and Chesko drove him back to his
house. Chesko was upset with Zapata; the defendant told her
that "everything was going to be all right."
At some point after July 4, 2011, the defendant and Chesko
returned to the victim's house without Zapata. They beat the
victim and stabbed him multiple times, including five stab
wounds to his neck. They ransacked the house, stealing a number
of items, among them two television sets, a video game console,
jewelry, and several rifles. The two drove to Hernandez's
apartment, where Hernandez agreed to buy one television for
$500, and placed it in her living room. The defendant made
several trips carrying the other items to the storage area,
while Chesko waited in the vehicle.
5
The victim's wife returned home on July 10, 2011. As the
victim's wife approached the house, she immediately noticed a
pile of newspapers outside the front door, and that the doors to
their dog kennel and shed were open. She found the interior of
the house in shambles; cabinets were standing open with items
spilled from them, furniture was knocked over and displaced, and
there were blood stains on the floors. She also noticed that
two televisions were missing, as were her jewelry and the key to
the victim's gun safe.
She contacted the Rutland police, who responded to the
house to investigate a suspected burglary. A detective noticed
that one of the front window screens was torn. He saw two
distinct sets of bloody footprints in the kitchen, and noted
that someone had written "Don't Do Drugs" in black permanent
marker on the kitchen table. He followed a blood trail leading
down the stairs to the basement, where he found the victim's
body under an open area beneath the stairs. The victim had died
as a result of blunt trauma to his head, and stab wounds to his
head, neck, and leg.
On July 13, 2011, while conducting surveillance near the
defendant's mother's house in Rutland, police saw the defendant
driving, and followed him to Worcester, where he was stopped;
the defendant agreed to accompany them to the State police
barracks in Millbury. After the defendant got out of the
6
vehicle, one of the officers noticed a military-style ammunition
canister on the seat, with visible blood-stained fingerprints,
and searched the vehicle. Blood was also present on areas of
the front seat, the glove compartment, the door panel, and the
dashboard. Deoxyribonucleic acid testing of the blood stains on
the ammunition canister matched the victim's blood. The
officers also recovered a set of keys that the defendant had
left in the vehicle when he was stopped; one of the keys was to
Hernandez's storage area.
Police then searched Hernandez's apartment. When they
entered the living room, one of the officers saw a group of
children watching a large television, one of those that had been
stolen from the victim's house, with a visible blood stain on
it. Police recovered jewelry, rifles, a video game box, and
other items of the victim's property from the storage area and
from locations in Hernandez's apartment. A fingerprint and two
palm prints of the defendant were on one rifle, and his palm
print was on another. Police also found a plastic bag
containing blood-soaked clothing and gloves, a hat, a pair of
boots, a pair of shoes, and two cellular telephones. The shoes
were later matched with the bloody footprints on the victim's
kitchen floor.
At trial, the defendant did not contest that he had
participated in the crime. Rather, he argued that he could not
7
be found guilty of murder because his mental state had been
diminished by a combination of severe depression over his
cousin's recent suicide, drug use and drug withdrawal, sleep
deprivation, and Chesko's coercion and manipulation. The
defendant called an expert witness in support of his theory of
diminished capacity. The defendant also called several
witnesses to testify to his good character and reputation as a
leader in high school, before his cousin's suicide and his
extensive drug use, and the abrupt change that the witnesses had
noticed in his behavior.
The judge instructed the jury on all three theories of
murder in the first degree. The jury found the defendant guilty
of murder in the first degree on the theories of deliberate
premeditation and felony-murder.
2. Discussion. In this direct appeal, the defendant
raises two primary claims of error. First, he argues that
portions of the prosecutor's closing argument so exceeded the
bounds of proper argument, by inflaming the jury and unfairly
engaging in ad hominem attacks against the defendant's key
witness, and referring to facts not in evidence, that a new
trial is required. Second, the defendant argues that the judge
erred in allowing the Commonwealth to introduce unfairly
prejudicial evidence of uncharged misconduct, which only further
served to rouse the jury's emotions.
8
a. Prosecutor's closing argument. While prosecutors are
entitled to argue "forcefully for the defendant's conviction,"
closing arguments must be limited to facts in evidence and the
fair inferences that may be drawn from those facts.
Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). Within this
framework, however, a prosecutor may attempt to "fit all the
pieces of evidence together" by suggesting "what conclusions the
jury should draw from the evidence" (citation omitted).
Commonwealth v. Burgess, 450 Mass. 422, 437 (2008).
i. Personal attack on defense expert. The defendant first
argues that the prosecutor improperly disparaged his expert
witness, Dr. Fabian Saleh, a psychiatrist and assistant clinical
professor of psychiatry, engaging in repeated ad hominem attacks
against the expert and his employment at Harvard University
Medical School. The challenged statements include references to
Saleh as not being a "human being," and a repeated suggestion
that an expert medical opinion, unlike evidence such as bloody
footprints, was not "real evidence," and thus should not be
taken into consideration in the jury's deliberations.
At one point in his closing, the prosecutor argued:
"Dr. Saleh needs to get out of the Harvard Medical
School, he needs to get out of his office, he needs to stop
flying around the world and writing papers and needs to
become a human being so he can figure out what facts really
count."
At another point, the prosecutor said:
9
"They were getting away with it. You know how many
injuries [the victim] had. You know what a beating he had
taken. They didn't have to step in here, him and Chesko,
and take his life. They had to think ahead to do it. It's
not one stabbing. Think of the autopsy, how many stab
wounds it is. And that's the evidence, real physical
evidence . . . -- not sitting alone, writing papers at the
Harvard Medical School -- real evidence, real facts that
human beings rely on to make their decisions about what
makes sense."
Although the defendant objected at trial to other portions
of the closing, he did not object at that time to these
particular statements. Thus, we consider whether there was
error and, if so, whether it created a substantial likelihood of
a miscarriage of justice. Commonwealth v. Mello, 420 Mass. 375,
379-380 (1995). While a few of the remarks were unfortunate and
may have been inappropriate, we discern no substantial
likelihood of a miscarriage of justice in the prosecutor's
comments on the expert's testimony.
"Within reason, prosecutors may be critical of the tactics
utilized by trial counsel in defending a case." Commonwealth v.
Fernandes, 436 Mass. 671, 674 (2002), quoting Commonwealth v.
Awad, 47 Mass. App. Ct. 139, 141 (1999). Here, defense counsel
argued that "the crux of this case" was Salah's credibility.
Defense counsel urged the jury to accept Salah's expert opinion
because he was "internationally renowned" and has "impeccable
credentials," which include teaching at Harvard Medical School
and lecturing to Superior Court and appellate judges.
10
While certain of his remarks might have been better left
unsaid, the prosecutor was entitled to respond to the
defendant's argument by asking the jury to look beyond Salah's
curriculum vitae and to examine the validity of Salah's opinion.
See Commonwealth v. Whitman, 453 Mass. 331, 346 (2009). The
prosecutor pointed out that the expert witness failed to
consider "the facts [that] really count." He argued, in effect,
that Saleh's opinion discounted many commonsense incriminating
facts in evidence that demonstrated that the defendant was able
to form the intent to kill and rob the victim. Comments
directed at the reliability of an expert's opinion do not exceed
the bounds of permissible argument. See Commonwealth v. Miller,
457 Mass. 69, 79 (2010); Commonwealth v. Cosme, 410 Mass. 746,
752 (1991).
The statement that Salah "needs to become a human being"
was inappropriate and should not have been made. Viewed in
isolation, the remark risked crossing the line into an
impermissible personal attack on an expert witness. See
Commonwealth v. Bishop, 461 Mass. 586, 597-599 (2012). In the
context of the closing as a whole, however, the jury would have
been able to understand the remark as a "manifestly sarcastic
and hyperbolic" comment. See Cosme, 410 Mass. at 754. See,
e.g., Wilson, 427 Mass. at 350 (jury are presumed to understand
that prosecutor is advocate, and statements that are
11
"[e]nthusiastic rhetoric, strong advocacy, and excusable
hyperbole" do not require reversal). That defense counsel
objected to some portions of the prosecutor's closing, but not
to these particular comments, also suggests that he did not view
the remarks about Saleh as prejudicial. Commonwealth v. Walker,
421 Mass. 90, 104 (1995).
ii. Arguing facts not in evidence. The defendant
maintains that the prosecutor's comment that, when officers
arrived at Hernandez's apartment, her children were watching the
children's television program "Barney & Friends" on the victim's
bloodstained television was improper. The prosecutor said,
"They still had blood on the TV set when Luz Hernandez's kids
were watching Barney, for gosh sakes. Now, we don't know if
they were watching Barney, but they were small children. They
were watching some show like that." The defendant points out,
as well, that there was no evidence of the children's ages or
which television show they were watching.
The prosecutor's acerbic comment, was, as the defendant
argues, better not made. Nonetheless, the single remark that
"small children" at Hernandez's home were "watching Barney" on a
bloodstained television when the police arrived was an evident
piece of hyperbole, readily understood as such by the jury. See
Commonwealth v. Costa, 414 Mass. 618, 629 (1993). While the
particular program "Barney" and the specific ages of the
12
children were not in evidence, these facts were not relevant to
any portion of the case, and the focus of the statement was
based in fact. There was evidence that children were watching
television when the police arrived, and that the television had
blood on it. In addition, the prosecutor immediately
acknowledged in his next statement that portions of the comment
were speculation, saying, "Now, we don't know if they were
watching Barney, but they were small children. They were
watching some show like that. And that blood's still on the TV
set."
iii. Playing to jurors' sympathy. The defendant argues
that the prosecutor impermissibly appealed to the jurors'
sympathy on multiple occasions. The defendant points in
particular to the prosecutor's comments that the victim's life
was worth $500 to the defendant; his urging that the jurors
place themselves in the victim's shoes and imagine his final
thoughts; and his argument that the victim was "crawling away to
die," leaving bloody hand and knee prints on the floor, after
giving up any hope of survival. We agree that some of these
remarks were inappropriate and designed to inflame the jury.
See Commonwealth v. Bois, 476 Mass. 15, 34 (2016)
("Prosecutorial 'appeals to sympathy . . . obscure the clarity
with which the jury would look at the evidence and encourage the
jury to find guilt even if the evidence does not reach the level
13
of proof beyond a reasonable doubt'" [citation omitted]). The
defendant objected to these remarks at the end of the
prosecutor's closing, and the judge conducted a sidebar hearing
on the objection; accordingly, we review for prejudicial error.
See Commonwealth v. Parent, 465 Mass. 395, 399 (2013).
In closing, the prosecutor said, "[The defendant] had to
get rid of that TV set so fast, he sold it to . . . Hernandez
for five hundred dollars. That was the value of [the victim]
lying dead in that house, five hundred dollars." He also said,
"Do you think [the victim] went down there thinking he was going
to call 911? Was [the victim] in a position where he was going
to get help? No. He was down there dying." The prosecutor
then asked the jury to imagine the victim's last thoughts,
arguing, "Those last thoughts, reasonably, in his mind: I've
had enough. I've been beaten. I've been stabbed. My house has
been ransacked. I've been thrown down my own stairs. I'm
staring up at my own ceiling and the cement around the basement
of my home." The prosecutor asked the jurors to imagine the
victim crawling down into his basement to die:
"How bad was it? What does the evidence show how bad
it was? You saw the tracks, spots of blood on the way from
the bottom of the stairs to under the stairs. Reasonably,
based on the evidence, those are his knee prints and his
hand prints. He can't walk. He can't walk from that
puddle of blood that he's dying in with the duct tape
there. He has to crawl. He's not crawling for help. He's
going the opposite way of the stairs. He's not calling to
14
911. He's going away from the phones. He's crawling away
to die."
These portions of the prosecutor's closing were
inappropriate and impermissible, exceeding the bounds of zealous
argument. It was impermissible for the prosecutor to argue that
the defendant thought the victim's life was worth $500 based on
the fact that the defendant sold one of the victim's television
sets, among many stolen items, for $500. See Commonwealth v.
Worcester, 44 Mass. App. Ct. 258, 264 (1998). The comment drew
an improper inference that unfairly invited the jury to decide
the case based on sympathy for the victim. Id. It also was
impermissible for the prosecutor to ask the jury to imagine the
victim's final thoughts. Commonwealth v. Bizanowicz, 459 Mass.
400, 420 (2011). "The jury should not be asked to put
themselves 'in the shoes' of the victim, or otherwise be asked
to identify with the victim." Id., citing Commonwealth v.
Thomas, 400 Mass. 676, 684 (1987).
As to the defendant's contention that the prosecutor
referred to facts not in evidence when he argued that the victim
crawled on his hands and knees to the location where he died,
the judge and the attorneys discussed the state of this evidence
at sidebar. The prosecutor argued that the blood trails on the
basement stairs and floor would support an inference that the
victim was crawling, not standing. The judge said, "All right."
15
We agree that the photographs of the bloodstains on the basement
floor, and the testimony of the officer who found the victim's
body, support such an inference.
Having concluded that portions of the prosecutor's closing
argument were improper, we must determine whether the
impermissible statements, in the context of the entire argument,
require a new trial. In reaching such a determination, we
consider "(1) whether the defendant seasonably objected;
(2) whether the error was limited to collateral issues or went
to the heart of the case; (3) what specific or general
instructions the judge gave the jury which may have mitigated
the mistake; and (4) whether the error, in the circumstances,
possibly made a difference in the jury's conclusions."
Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000), citing
Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).
Here, in the context of the argument as a whole, and given
the overwhelming evidence against the defendant, we conclude
that there is no need for a new trial. With respect to some of
the prosecutor's more egregious comments, the judge mitigated
the possibility of prejudice by specifically instructing the
jury to disregard the comment, in particular the speculation
concerning the victim's final thoughts. She noted, "In this
case, the closing argument by the prosecution, talking about the
last thoughts of the decedent is not evidence in this case. It
16
is not to be considered by you as such." The judge instructed
more generally at the beginning of the trial, before the closing
arguments, and in her final charge that closing arguments are
not evidence. She also reminded the jury, at the beginning of
the trial and in her final charge, that they were to decide the
case based on the evidence, and not sympathy or bias.
Moreover, in light of the strength of the Commonwealth's
case, and the disturbing, properly introduced evidence of the
condition of the victim, see Bois, 476 Mass. at 35, the
prosecutor's improper and obviously hyperbolic statements were
likely to have had but little effect on the jury. See, e.g.,
Commonwealth v. Roberts, 433 Mass. 45, 55 (2000). It is also
significant that the jury did not "blindly accept the
prosecutor's arguments," as evidenced by their decision not to
convict the defendant on the theory of extreme atrocity or
cruelty. Bois, supra. See, e.g., Commonwealth v. Gaynor, 443
Mass. 245, 273 (2005) (prosecutor's brief argument that victim's
life was worth twelve-dollar value of pawned jewelry did not
create substantial likelihood of miscarriage of justice).
b. Prior bad acts. The defendant argues that the judge
abused her discretion in allowing the prosecutor to introduce
evidence of uncharged misconduct by the defendant. A Worcester
police detective testified that, one week before the killing, he
found the defendant late at night, crouched behind a vehicle in
17
a registry of motor vehicles parking lot. The officer conducted
a patfrisk and found the defendant in possession of a knife, a
pair of black gloves, a pellet gun, and Chesko's purse. The
defendant explained that he was having trouble with "people on
the streets" and needed the weapons for protection. The officer
confiscated the knife and the pellet gun, but did not arrest the
defendant or charge him with a crime.2
The judge allowed the Commonwealth to introduce this
evidence as relevant to the defendant's state of mind. She then
immediately instructed the jury that the defendant's prior
possession of a pellet gun and a knife could not be considered
as "any . . . proof whatsoever that he committed the crime with
which he's been charged." The evidence was admissible, she
instructed, "solely on the issue of his state of mind as it will
be addressed in this case as it proceeds." In her final charge,
the judge repeated the instruction that the evidence was limited
to establishing the defendant’s state of mind. She added, "You
2
At a preliminary hearing on the Commonwealth's motion in
limine to introduce the bad act evidence, the judge informed the
parties that she would reserve her ruling pending a voir dire of
the police officer. Due to some apparent confusion between the
parties as to a possible stipulation, the judge did not conduct
a voir dire hearing. At trial, the defendant objected to the
testimony that he had carried a knife and a pellet gun. The
judge allowed the Commonwealth to show these items to the jury,
and determined that any prejudice from the police officer
displaying the weapons in court "can be cured by instructions of
what they can consider it for."
18
cannot use this evidence as proof the defendant is a man of bad
character with a propensity to commit criminal acts."
Evidence of a defendant's prior or subsequent bad acts is
not admissible to show "bad character or criminal propensity"
(citation omitted). Commonwealth v. Lally, 473 Mass. 693, 712
(2016). It may be admitted where it is relevant to show a
nonpropensity purpose such as "common scheme, pattern of
operation, absence of accident or mistake, identity, intent, or
motive." Commonwealth v. Helfant, 398 Mass. 214, 224-225
(1986), and cases cited. The Commonwealth is required to
demonstrate that the probative value of the evidence is not
outweighed by the risk of unfair prejudice to the defendant.
Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). We review
questions of admissibility, probative value, and unfair
prejudice under an abuse of discretion standard. See id. at
252. We do not overturn a trial judge's decision on these
issues absent a clear error of judgment in weighing the relevant
factors. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the judge did not abuse her discretion in allowing
introduction of the officer's testimony and the weapons to
demonstrate the defendant's state of mind. The defendant argued
that he lacked the capacity to form the intent to murder or rob
because of depression, drug use and drug withdrawal, sleep
deprivation, and coercion by his girl friend. The incident in
19
the parking lot tended to undermine the defendant's claim that
he lacked the capacity to commit the crime. It demonstrated
that, one week before the killing, the defendant carried weapons
(including a knife, the type of weapon used to kill the victim)
because he was having problems with individuals on the street,
as opposed to carrying weapons because he had a drug addiction,
was sleep deprived, was suffering from mental illness, or was
manipulated into doing so by Chesko. See Commonwealth v.
Philbrook, 475 Mass. 20, 26-27 (2016) (prior bad act evidence of
defendant's attack on another individual admissible to show
state of mind on date of killing).
The probative value of the uncharged misconduct evidence
outweighed the risk of unfair prejudice. The incident in the
registry of motor vehicles parking lot, which was not serious
enough to result in the defendant's arrest, paled in comparison
to evidence offered at trial concerning the defendant's conceded
participation in the victim's brutal death. See Commonwealth v.
Carriere, 470 Mass. 1, 16 (2014). The incident also received
minimal attention at trial. Commonwealth v. McGee, 467 Mass.
141, 158 (2014). The Worcester police detective's testimony
about the incident was brief, and the prosecutor did not mention
the incident in his closing. See Commonwealth v. LeBeau, 451
Mass. 244, 261 (2008). Furthermore, the judge minimized the
prejudicial impact of the evidence by providing the jury with
20
thorough limiting instructions. See Commonwealth v. Walker, 442
Mass. 185, 202 (2004).
c. Review pursuant to G. L. c. 278, § 33E. We have
carefully reviewed the entire record pursuant to our duty under
G. L. c. 278, § 33E, and discern no reason to order a new trial
or to reduce the conviction to a lesser degree of guilt.
Judgment affirmed.