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Commonwealth v. Rutherford

Supreme Judicial Court of Massachusetts, Worcester

March 16, 2017


          Heard: November 10, 2016.

         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.

          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 ...

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