Commonwealth v. Rutherford

• Decision Date: 16 March 2017
• Docket Number: SJC-12094
• Citation: Commonwealth v. Rutherford, 476 Mass. 639, 71 N.E.3d 481 (Mass. 2017)
• Parties: COMMONWEALTH v. James RUTHERFORD.
• Court: Supreme Judicial Court of Massachusetts

476 Mass. 639

71 N.E.3d 481

COMMONWEALTH

v.James RUTHERFORD.

SJC-12094

Supreme Judicial Court of Massachusetts, Worcester..

Argued November 10, 2016.

Decided March 16, 2017.

Jennifer H. O'Brien , Billerica, for the defendant.

Ellyn H. Lazar-Moore , Assistant District Attorney, for the Commonwealth.

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

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 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 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 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.

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 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 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.

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, 693 N.E.2d 158 (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, 879 N.E.2d 63 (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

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