Com. v. Gilbert

• Decision Date: 06 December 1996
• Citation: 673 N.E.2d 46,423 Mass. 863
• Parties: COMMONWEALTH v. Preston Lee GILBERT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 46

673 N.E.2d 46

423 Mass. 863

COMMONWEALTH v. Preston Lee GILBERT.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 7, 1996.

Decided Dec. 6, 1996.

Mark R. Wetmore, Boston, for defendant.

Peter E. Schlossman, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and MARSHALL, JJ.

GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree on the ground of deliberate premeditation. Represented by new counsel on appeal, the defendant argues that the judge erred in denying his motion for a required finding of not guilty, filed at the end of the Commonwealth's case and renewed at the conclusion of the trial. The defendant also argues that the judge erred in three instances in excluding evidence and that the prosecutor's closing argument contained improper and prejudicial remarks. If these claims are rejected, the defendant asks that we exercise our power under G.L. c. 278, § 33E (1994 ed.), to grant him relief. We affirm the judgment and decline to exercise our power under G.L. c. 278, § 33E.

We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Cordle, 404 Mass. 733, 734, 537 N.E.2d 130 (1989), S.C., 412 Mass. 172, 587 N.E.2d 1372 (1992). On January 7, 1991, Somerville police responded to a telephone call from the defendant, asking for police to come to his apartment at 15 Weston Avenue in Somerville, because of a woman who was not breathing. When the Somerville police arrived, they found the victim, Lana Gilbert, lying on a couch in a fetal position, covered by a blanket. They requested assistance from the Somerville fire department and paramedics and proceeded to perform cardiopulmonary resuscitation (CPR) on the victim, who showed no signs of life. The officers moved the victim to the floor of the apartment and discovered that she was naked under the blanket. They noticed that her head and lips were cut, her tongue bloodied, and that her arms and legs were bruised. One of the police officers questioned the defendant about what had happened. The defendant told police that the victim had hit her head on the bathroom sink and also had taken some medication.

Firefighters from the Somerville fire department arrived at the apartment shortly after the police officers and continued CPR on the victim, who continued to show no signs of life. The firefighters administered oxygen to the victim and continued CPR until they were replaced by paramedics from the city's ambulance service. The firefighters also noticed that the victim's lips were cut and that she had bruises on her legs, and that the defendant was carrying a cane.

The paramedics inserted a tube into the victim's mouth and down her windpipe to assist her in breathing and administered drugs to attempt to "goad the heart into action." This drug therapy produced a "transient" pulse, which was sustained for a brief period before it ceased. At no time did any of the police, firefighters, or paramedics observe anyone touch or kneel on the victim's abdomen or exert any pressure on her neck other than the light touch necessary to determine whether she had a pulse.

The victim was transported to Somerville Hospital, where an emergency room nurse observed lacerations on her face and lip and bruises on her arms and legs. The victim showed no signs of life and was pronounced dead about one half-hour after her arrival at the hospital. In a subsequent autopsy, the Commonwealth's chief medical examiner, a forensic pathologist, determined that the victim had died of blunt neck trauma, which involved severe hemorrhages to her carotid arteries caused by blows or forceful pushes from thumbs, fingers, or a rounded edge. These injuries were characterized as the result of a force "similar to ... neck strangulation." In addition, the autopsy showed evidence of hemorrhage in the wall of the duodenum, an injury that could only have resulted from violent force on the victim's abdomen, such as if she had been kicked or kneed or had fallen from some height. The medical examiner further concluded that the bruises on her lip, arms, and legs were linear, that the injuries on her arms were in the nature of defensive wounds, and that these injuries were consistent with those inflicted by a blunt object such as a cane.

Detectives from the Somerville police department interviewed the defendant on the evening of January 7 at his apartment. The defendant told the police that he lived at the apartment with the victim, who had been his girl friend for fifteen years and who had taken his last name. The defendant told police that he had been away from the apartment, staying at the home of his ex-wife, and had returned Sunday evening around 10 P.M. in the company of his daughter and son-in-law. When he came back to his apartment on Sunday evening, he found the victim "all doped up" and speaking with slurred speech. The victim told the defendant she had taken "over a hundred Tylenol," but refused his offer to take her to the hospital. The defendant noticed a cut on the victim's lip, and when he asked her about the source of that injury, she said she had fallen in the bathroom. The defendant said he went to sleep on Sunday evening and the next day he went out to run errands at noon. When he returned to the apartment at about 2:15 P.M., he found the victim sitting on the couch, naked, with her head near her knees, complaining of a burning fever. The defendant noticed that she was breathing loudly and that her speech was slurred. He helped her lie down on the couch and covered her with a blanket. Later in the day, the defendant noticed that the victim had stopped breathing, and he then called police.

A Somerville detective then searched the defendant's apartment with the defendant's consent. The detective found a three-page letter dated January 5, 1991, addressed to a mutual acquaintance of the couple. The letter had been ripped in half and was later identified as having been written by the victim. When the detective showed the letter to the defendant, he admitted to having a sexual affair with the woman to whom the letter was addressed and explained that he had told the victim about the affair and that the couple had fought about it earlier in the week but that the victim had forgiven him. ¹

On January 9 and 11, 1991, the defendant was again interviewed by a Somerville detective and a police officer. In these interviews, the defendant repeated the information he had told police on the night of the victim's death. The defendant's version of the events of Monday afternoon and evening as recited in these two interviews differed from the story he had initially told police on the evening of the victim's death. In the later interviews, the defendant admitted that his first telephone call had not been to police, but that instead he had first called the victim's cousin, who had directed him to call the police. In his interview the night of the victim's death, the defendant said he had seen bruises on the victim on Sunday evening, but in later interviews, he denied seeing any bruises until Monday afternoon. The defendant also seemed unsure about the time span between his return home and his awareness that the victim had ceased breathing, indicating in the first interview that he had returned home but had not noticed that she had stopped breathing until 7 P.M., but in the second and third interviews recalled that he had returned home at about 2:15 P.M. and shortly afterward had noticed she had stopped breathing and called police.

In the interviews on January 9 and 11, the defendant described for the police in greater detail his activities the day before the victim's death. On his return to the apartment on Sunday evening, the defendant found the victim lying on the couch, breathing heavily. Her speech was slurred. The defendant saw pill bottles and the victim told the defendant she had taken some medication, but she refused the defendant's offer to take her to the hospital. The defendant's daughter gave the victim a bath, and later she fell asleep on the couch. The defendant said that he and the victim had not had any serious fights or problems in their relationship, and he denied ever striking her. The defendant told police that he and the victim were the only individuals with keys to the apartment and that the only other people present in the apartment between January 4, and January 7, were his daughter and son-in-law.

The defendant acknowledged in his interviews with police that, on January 2, he had been involved in a violent fight with his sons at the apartment and that the victim, upset about the resulting damage to the apartment and its furnishings, had called the police. This fight set into motion a chain of events between the defendant, the victim, and the Somerville Housing Authority, from whom the defendant leased his apartment. The manager of the housing authority testified that, on January 3, the day after the fight between the defendant and his sons, the defendant called her to complain that "his housekeeper" was threatening to remove a color television from the apartment. The manager took steps to remove the victim from the apartment ² and later met with her. At their meeting, the victim informed the manager that she had been helping the defendant pay the rent on the apartment, that she had lived in the apartment with the defendant from the time he had moved there, and that she intended to leave him. The victim also provided information concerning her income to the manager. Based on this information, the manager sent a notice to the defendant requiring him to attend a "private conference" to discuss the disturbance in the apartment and the need to adjust his rent to reflect this additional unreported income.

That same day, the defendant also called the director of public safety at the housing authority, who testified that the...