Commonwealth v. Rutherford (Lawyers Weekly No. 10-045-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   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 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. 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 […]

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