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SJC

- 1 2094
COMMONWEALTH vs . JAMES RU THERFORD .

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.

I ndictments found and returned in the Superior Court Department on September 23, 2011. The case s 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 deli berate 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 were2

his girl friend broke in to 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 i llness. The defendant raises two claims in this direct appeal. First, he argues that the prosecutor exceeded the bounds of permissible closing argument by e ngag ing in a personal attack on the defendant's expert witness, referenc ing facts not in evidence, and appeal ing to juror sympathy . Second, the defendant maintains that the trial judge er red by allowing the prosecutor to introduce unfairly prejudicial evidence of uncharged misconduct. The defendant also asks us to invoke our ext raordinary 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. Fact s . 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 Ann e Chesko, planned to rob the victim at his house in Rutland over the Fourth of July holiday weekend.
T he 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 w here by the victim gave Chesko money and drugs in exchange for sex
. Most of their encounters took place at a Worc ester auto body shop owned by the victim
. Eventually, the vi ctim allowed Chesko to visit at his house, and paid the costs of tuition so that Chesko could return
to c ollege
. The defendant and Chesko recruited their former roommate, Rod y 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 am ounts 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 h ouse 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 t hat he

w as planning to rob someone
. He asked L uz H ernande z if he could
store some items he planned to steal in a locked storage area4

behind her apartment building ; s he agree d and gave the defendan t a key to the storage area . On July 4, 2011, the defendant, Chesko, and Zapa ta 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 vict im if he found out that she was involved in the robbery . The defendant returned to the vehicle and remove d 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 th e defendant and Chesko drove him back to his house . Chesko was upset with Zapata ; t he defendant told her that " e verything was going to be al l right
. " At some point a fter July 4 , 2011 , the defendant and Chesko returned to the victim's ho use without Zapata. They beat the victim and stabbed him multiple times , including five stab wounds to his neck
. The y 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 wif e 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 ; ca binets were standing open with items spilled from them, furniture was knocked over and displaced , and there were blood stains on the f loors
. She also noticed that
t wo 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 investigat e 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 D o D rugs" 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, p olice 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 the6

vehicle, o ne of the officers noticed a military

- style ammunition cani ster on the sea t, with visible blood

- stained fingerprints, and searched the vehicle. B lood was also present on areas of the front seat, the glove compartment , th e door panel, and the dashboard. D eoxyribonucleic 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 key s was to Hernandez's storage area . P olice then search ed 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 t he 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, t he defendant did not contest that he had participated in the crime
. Rather, he argued that he could not7

be found guilty of murder because h is mental state had been diminished by a combination of severe depress ion over his cousin' s recent suicide, drug use and drug withdrawal, sleep depriv ation , 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 reput ation 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 i n 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, t he 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 prosecutor s are entitled to argue " forc efully 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 jur y should draw from the evidence" ( citation omitted). Commonwealth v. Burgess , 450 Mass. 422, 437 (2008). i
. Personal a ttack on defense expert . The defenda nt first argues that the prosecutor improper ly 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 includ e references to Saleh as not being a "human being , " and a r epeated 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.
A t one point in his closing, the prosecutor argued :

" Dr. Saleh n eeds to get out of the Harvard Medical School, he needs to g et out of his office, he needs to stop flying around t h e world and writing papers and needs to become a human b eing so he can figure out what facts really count ." At another point, the prosecutor said :9

" T hey 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 eviden ce, real physical evidence
. . . -- not sittin g 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 obje ct at that time to th ese 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, w e 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 b y 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 couns el 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 , t he prosecutor was entitled to respond to the defendant's argument by ask ing 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 point ed out that the expert witness failed to consider "the facts [ that ] really count." He argued, in e ffect, that Sal e h 's opinion discounted many commonsense incriminating facts in evidence that demonstrat ed 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); Com monwealth 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
. V iewed in isolation, the remark risked crossing the line into an im permissible 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 t he remark as a " mani festly sarcastic and hyperbolic " comment. See Cosme , 410 Mass. at 754. See , e.g., Wilson , 427 Mass. at 35 0 (jury are presumed to understand that prosecutor is advocate, and statements that are11

" [ e ] nthusiastic rhetoric, strong advocacy, and excusable hyperbole" do not require reversal). T hat defen se counsel object ed to some portions of the prosecutor's closing, but not
to the se particular comments , also suggests that he did not view the remarks about Sal e h as prejudicial. Commonwealth v. Walker , 421 Mass. 90, 104 (1995). ii
. Arguing f acts 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 Barne y, 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
. " T he defendant points out, as well, that there was no evidence of the children' s ages or which television show th ey were watching.
Th e prosecutor's acerbic comment , was, as the defendant argues, better not made. Nonetheless, the single remark that "small ch ildren" 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, 62 9 (1993)
. While the particular program "Barney" and the specific ages of the12

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 . T here was evidence that children were watching television when the police arrived, and that the television had blood on it . In addition, the prosecutor im mediately acknowledged in his next statement that portions of the comment were speculation, saying, "Now, w e don't know if they were watchi ng B arney , 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
. Th e defend ant argues that the prosecutor impermissibl y appeal ed 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 "crawl ing 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) ( " Prosecu torial ' 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 level13

of proof beyond a reasonable doub t ' " [ citation omitted ] ). The defendant objected to the se 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).
I n closing, the prosecutor said, " [The defendant] had to get rid of tha t TV set so fast, he sold it to
. . . Hernandez for five hundred dollars. That was the value of [the victim] lying dead in t hat 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." T he prosecutor then asked the jury to imagine the victim's last thoughts, arguin g, " 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 bee n 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 t h e way from the bottom o f the stairs to under t h e 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 to14

911. He's going away from the phones. He's crawling away to die. " These p ortions of the prosecutor's closing were inappropriate and impermissible, exceeding the bounds of zealous argument. It was imperm issible for t he 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 Ma ss. App. Ct. 258, 264 (1998). The comment drew

an improper inference that unfairly invite d the jury to decide the case based on sympathy for the victim. Id
. It also was imp ermissible for the prosecutor to ask the jury to imagine the victim's final thoughts. Com monwealth 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 ., ci ting 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 pro secutor 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 t he photo graphs of the bloodstains on the basement floor, and the test imony 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 ar gument , require a new trial
. In reaching such a determination, we consider " (1) whether the def endant seasonably objected; (2) whether the error was limited to collateral issues or wen t to the heart of the case; (3) what specific or general instructions the judg e gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibl y 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 mo re egregious comments , t he 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 th e last thoughts of the decedent is not evidence in this case. It16

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 evid ence, and not sympathy or bia s . 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 3 5 , t he 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 theo ry 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 act s . The defendant argues that the judge abused her discretion in allowing the prosecu tor to i ntroduce evidence of uncharged misconduct by the defendant . A Worc ester police detective testified that , one week before the killing , he found the defendant late at night, crouched behind a vehicle in17

a r egistry of m otor v ehicles parking lot
. The officer conducted a patfrisk and found the defendant in possess ion of a knife, a pair of black gloves, a pellet gun , and Ch esko'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 mi nd. She then immediately instructed the jury that the defendant ' s prior possession of a pellet gun and a kn ife co uld 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 address ed 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 d ire 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 weap ons 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 prope nsity to commit criminal acts." Evidence of a defendant' s prior or subsequent bad acts is not admissible to show " bad ch aracter 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, iden tity, 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 outweigh ed 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 i d . 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).
Her e , 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 in19

the parking lot te nded to undermine the defendant' s claim that he lacked the capacity to commit the crime . It demonstrated that , one week before the killi ng, the defendant carried weapons ( including a knife, the type of weapon use d 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 sufferi ng 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 outweigh ed the risk of unfair prejudice. The incident in the

r egistry of m otor v ehicles 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 hi s closing. See Commonwealth v. LeBeau , 451 Mass. 244, 261 (2008). Furthermore, the judge minimized the prejudicial impact of the evidence by prov iding the jury with20

thorough limiti ng instructions. See Commonwealth v. Walker , 442
M ass. 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
.