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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.
