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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.