486 Mass. 314
Mass.2020Background
- Defendant LeeAnne Chesko was convicted of first‑degree murder under the felony‑murder rule, with armed robbery as the predicate felony, after Francis Spokis was found murdered in his home in July 2011.
- Evidence at trial: testimony (cooperator Rody Zapata) that Chesko and James Rutherford planned and attempted a robbery; Zapata testified Chesko signaled entry and threatened that the victim would have to be killed if discovered.
- Physical and forensic evidence: stolen property from the victim found at Luz Hernandez’s apartment and storage unit (with Rutherford links); bloody footprints matching Chesko’s size 7 Converse and Rutherford’s size 11 boots; victim died of blood loss from stab wounds and skull fracture.
- Phone evidence: call records and historical cell site location information (CSLI) for Chesko’s phone showing movement between Worcester and Holden on July 4–5, 2011 and no calls to the victim after July 6; Chesko’s account terminated July 10.
- Procedural posture: Chesko appealed, raising multiple claims including failure to instruct on second‑degree felony‑murder, admission of CSLI, exclusion of psychiatric records and certain cross‑examination, jury instruction on inferences, and ineffective assistance; conviction affirmed and §33E relief denied.
Issues
| Issue | Commonwealth (Plaintiff) Argument | Chesko (Defendant) Argument | Held |
|---|---|---|---|
| Failure to instruct on felony‑murder in the second degree (armed assault with intent to rob) | No instruction required; parties agreed it was unnecessary and evidence supported armed robbery as the predicate | Judge should have instructed on second‑degree felony‑murder; omission prejudicial | No error: no request made, Dwyer/Stokes principles apply, and evidence supported armed robbery not the lesser offense; no miscarriage of justice |
| Admission of historical CSLI | Properly admitted and cumulative of other evidence; even if erroneous it was harmless | CSLI admission unconstitutional/invalid under Augustine and §2703(d); counsel ineffective for not objecting | Even assuming admission erroneous, CSLI was cumulative of other evidence so no substantial likelihood of miscarriage of justice; ineffective assistance claim fails |
| Denial of motion to admit cooperator Zapata’s psychiatric/privileged records (Dwyer protocol) | Trial court followed Dwyer/Lampron; records presumptively privileged and defendant failed to follow protocol for admission; defendant received functional equivalent through testimony and expert review | Exclusion of the two‑page psychiatric report was abuse of discretion and prejudicial | No abuse of discretion: defendant did not follow required pretrial steps; judge properly required testimony from the provider and defendant received functional equivalent; no ineffective assistance |
| Exclusion of Rutherford statements to Hernandez on cross‑examination (hearsay/state of mind) | Statements were hearsay and not admissible for non‑truth purpose or under state‑of‑mind exception | Statements were not offered for truth but to show Rutherford’s state of mind and rebut joint‑venture theory | Proper exclusion: statements were hearsay not falling within any exception; no prejudice |
| Jury instruction on drawing inferences (risk of "piling" inferences) | Jury was properly instructed that inferences must be reasonable and logical; burden of proof explained | Judge should have warned expressly against "piling inference upon inference" | No error: instructions adequate, used reasonable examples; cited authorities address sufficiency not required phrasing in instructions |
| Request for relief under G. L. c. 278, § 33E (reduce verdict or new trial) | No basis for §33E relief; Brown decision prospective and jury instructions were proper | Conviction rests on doctrines criticized in Brown (vicarious liability and conclusive presumption of malice) and jury questions cast doubt | §33E relief denied: instructions appropriate, answers to jury questions adequate, Brown prospective |
Key Cases Cited
- Commonwealth v. Stokes, 460 Mass. 311 (addressing when a judge need not sua sponte instruct on an unindicted lesser predicate felony)
- Commonwealth v. Benitez, 464 Mass. 686 (distinguishing when evidence supports greater felony versus lesser predicate for felony‑murder)
- Commonwealth v. Holley, 478 Mass. 508 (requirement that second‑degree felony‑murder instruction is warranted only if rational basis in evidence)
- Commonwealth v. Fulgiam, 477 Mass. 20 (discussing CSLI admissibility and related standards)
- Commonwealth v. Augustine, 467 Mass. 230 (holding government‑compelled production of CSLI is a search under art. 14; warrant requirement discussion)
- Commonwealth v. Silva, 482 Mass. 275 (harmless‑error review where instruction omission alleged)
- Commonwealth v. Dwyer, 448 Mass. 122 (protocol for obtaining and using privileged psychotherapy records)
- Commonwealth v. Lampron, 441 Mass. 265 (privilege and procedures for mental health records disclosure)
- Commonwealth v. Lee, 483 Mass. 531 (ineffective assistance review in evidentiary context)
- Commonwealth v. Brown, 477 Mass. 805 (opinion addressing felony‑murder doctrine; noted as prospective in part)
- Commonwealth v. Andre, 484 Mass. 403 (standard of review for evidentiary rulings)
- Commonwealth v. Gonzalez, 475 Mass. 396 (discussing piling of inferences in sufficiency review)
- Commonwealth v. Mandile, 403 Mass. 93 (addressing impermissible piling of inferences)
- Commonwealth v. Shea, 398 Mass. 264 (permitted use of illustrations to explain inferences)