State v. Gambrel

• Decision Date: 18 December 1990
• Docket Number: No. 90-255,90-255
• Citation: 246 Mont. 84,803 P.2d 1071
• Parties: STATE of Montana, Plaintiff and Respondent, v. John Ed GAMBREL, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

Page 1071

803 P.2d 1071

246 Mont. 84

STATE of Montana, Plaintiff and Respondent, v. John Ed GAMBREL, Jr., Defendant and Appellant.

No. 90-255.

Supreme Court of Montana.

Submitted on Briefs Nov. 15, 1990.

Decided Dec. 18, 1990.

Don Vernay, Kalispell, for defendant and appellant.

Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Ted O. Lympus, County Atty., Kalispell, for plaintiff and respondent.

TURNAGE, Chief Justice.

John Ed Gambrel, Jr., was convicted of deliberate homicide following a jury trial in the District Court for the Eleventh Judicial District, Flathead County. He appeals. We affirm.

The issues are:

1. Did the District Court err in denying the defendant's motion in limine and admitting into evidence the testimony of Alane Shuster, Shelly Birky, and Kathryn Jinx Kinslow?

2. Did the court err in denying the defendant's motions for a mistrial?

3. Did the court err in denying the defendant's motion for a new trial?

Defendant John Ed Gambrel, Jr., stands convicted of the February 5, 1989, murder of Lori Anne Schwegel in Whitefish, Montana. Following a report of a shooting shortly after 2 a.m. on that date, police officers discovered Schwegel's body in the apartment she had shared with Gambrel. She had been shot three times in the chest, once in the right hand, once in the left cheek, and once in the right leg. Her body was lying on the living room floor next to a rifle and rifle case later determined to be Gambrel's. Twelve spent shell casings were recovered from the living room, and two bullets were embedded in the ceiling. The front door of the apartment was ajar. There was no sign of forced entry or struggle.

Gambrel, suffering obvious head wounds, arrived at the apartment minutes later. He was transported to a hospital by ambulance, during which time he spoke a lot of gibberish and said, "help us, help us," "help Lori," "them coke son-of-a-bitches," and also "I didn't mean to hurt her."

Gambrel claims that he and Schwegel were attacked by an unidentified third party. At trial, he testified that after a night on the town, he was knocked unconscious as he entered the apartment he and Schwegel shared. Gambrel testified that when he regained consciousness, he was lying across the body of Schwegel, who had stayed home that evening. He testified that he realized he had been shot and went to the apartment of his upstairs neighbor, who summoned the police.

Gambrel's upstairs neighbor, Stuart McQuade, testified that he arrived home at about 2:00 a.m. He stated that he heard three "bangs" just before Gambrel came to his door for assistance. He stated that he did not see anyone around the apartments and, other than the three "bangs," did not hear anything, although according to him the apartment walls were thin.

Gambrel hypothesized that he and Schwegel had been shot on the orders of Ben Sagen, at whose home he had at one time stayed. He claimed that Sagen had a contract out on his life. Sagen denied that. Sagen testified that Gambrel did owe him money and that he had threatened to contract with a collection agency to recover it.

Gambrel talked to a group of police officers on his way home about 2:00 a.m. One of those officers characterized Gambrel's behavior at that time as "acting quite different." The State's theory is that Gambrel spent several hours downtown, went home and shot and killed Schwegel, returned to the bars, then talked to the officers in an attempt to establish an alibi before he again returned home and shot himself.

Gambrel had suffered two gunshot wounds. One was a grazing soft tissue injury to the chin. The other bullet entered under his chin, passed through the floor of his mouth, palate, nose and sinus, and exited between his eyes on the forehead. Two doctors testified at trial that Gambrel's injuries were consistent with self-inflicted gunshot wounds. Sagen testified that Gambrel had once bragged to him that he had been to a mercenary school where he had learned how to shoot people without killing them. The doctors did not find any injury to the back of Gambrel's head from being knocked unconscious. Also, Gambrel could not explain why his jacket was found neatly folded on the sofa in the apartment.

Gambrel had been seen at various downtown Whitefish bars all evening on February 4-5 except for a period of about an hour beginning at 10 or 11 p.m. Witnesses testified that Gambrel was "very intoxicated" and "scary," and that he said he was planning to leave Schwegel and was angry with her. Gambrel denied making those statements and testified that he and Schwegel were very happy together.

Over the defense's objection, the State presented testimony of three women with whom Gambrel had lived at various times. Alane Shuster testified about incidents in which Gambrel had physically abused her, culminating on Christmas Eve 1984. She stated that after they ate dinner, Gambrel tied her, naked and under protest, spread-eagle to a bed, then stuffed cut-up pieces of potato into her vagina. She testified that he watched her cry and beg him to stop for about ten minutes, then went to sleep on the couch, leaving her tied up. She later freed herself, but did not tell anyone about the incident because she was humiliated and embarrassed.

The second woman, Shelly Birky, testified that she allowed Gambrel to use a room in her apartment during the fall of 1986. She testified that she awoke at 5:30 a.m. on Christmas morning to find him on top of her having intercourse. She testified that as she tried to get away, he slammed her against walls, hit her, and repeated, "I will kill you; I will kill you; I will kill you." She testified that she reported the incident to the police.

Kathryn Jinx Kinslow testified about a Halloween 1987 incident in which Gambrel chased her around her apartment and slapped her, then slashed her waterbed. She testified that he told her, "I am going to kill you, you are a dead woman, you are not going to be alive tomorrow morning. Don't even bother going to sleep, because you are not going to live through to morning. You are not even worth living. I am going to take a knife and slit you from your cunt all the way up." Kinslow filed a police report.

All three women were extensively cross-examined. Gambrel denied making any of the threatening statements and, aside from admitting that he had an argument with Kinslow on Halloween of 1987, denied that any of these incidents occurred.

Gambrel was found guilty of deliberate homicide and was sentenced to 100 years in prison plus 10 years for use of a dangerous weapon.

I

Did the District Court err in denying the defendant's motion in limine and admitting into evidence the testimony of Alane Shuster, Shelly Birky, and Kathryn Jinx Kinslow?

In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, this Court set out specific requirements which must be met before evidence of other crimes, wrongs, or acts will be admissible under Rule 404(b), M.R.Evid. The requirements are:

1. Similarity of crimes or acts; and

2. nearness in time; and

3. tendency to establish a common scheme, plan or system; and

4. the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.

Just, 602 P.2d at 961. In addition, the State must give the defense advance notice of its intent to use such evidence and the jury must be admonished that the purpose of the evidence is limited. Just, 602 P.2d at 963-64.

In this case, the State gave pretrial notice of its intent to present the testimony of four women (one did not appear at trial). The defense made a motion in limine to prevent the women from testifying. After reviewing the women's written statements and hearing oral argument on the motion, the court ruled that the commonality among the offered testimony was

being females who have cohabitated with Defendant for significant periods of time and have been physically attacked, to varying degrees, by the Defendant while he was in a state of intoxication. They have also been subjected to threats of further harm or death by the Defendant while he was in an apparent alcoholic rage.

The court also ruled that the acts were not so remote in time as to be irrelevant or immaterial, that they were sufficiently similar as violent acts, and that their probative value outweighed their prejudicial effect. It denied the defendant's motion in limine. The defense again argues here that the other acts disclosed in the testimony of the three women were not similar to deliberate homicide, were too remote in time, did not establish a common scheme, plan, or system, and were prejudicial beyond their probative value.

The defense argues that, in particular, testimony about Gambrel's previous "bizarre sexual behavior" is not similar to the crime charged here. Gambrel's act of tying up an unwilling Shuster and stuffing potatoes into her vagina, then leaving her in that state while he fell asleep on the couch, did involve sexual organs and may thus be described as "bizarre sexual behavior." However, that act, like rape, is more accurately characterized as violent or sadistic than as sexual behavior. Like the violence against Schwegel, it was apparently unprovoked and occurred after Gambrel had been drinking. It is not true, as the defense argues, that the acts must have been perpetrated against the same victim to be similar. See State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136. We conclude that the violent behavior against Shuster, especially when looked at in combination with the testimony of the other women, is sufficiently similar to the violent behavior of shooting Schwegel to have been admissible into evidence.

Similarly, we conclude that the rape of the sleeping Birky followed by death threats against her and the slapping, property destruction, and death threats against Kinslow are sufficiently similar to the crime charged here. We agree with the District Court that the similarities are in the nature...