Supreme Judicial Court of Massachusetts, Worcester
Heard: November 10, 2016.
found and returned in the Superior Court Department on
September 23, 2011.
cases were tried before Janet Kenton-Walker, J.
Jennifer H. O'Brien for the defendant.
H. Lazar-Moore, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.
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. 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,
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.
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.
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
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.
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."
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.
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.
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.
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 ...