Supreme Judicial Court of Massachusetts, Middlesex
Heard December 11, 2015.
found and returned in the Superior Court Department on
September 27, 2007.
cases were tried before Kathe M. Tuttman, J.
Elizabeth Caddick for the defendant.
Bethany Stevens, Assistant District Attorney, for the
Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, &
Hines, JJ. 
defendant was convicted of murder in the first degree on a
theory of deliberate premeditation in the shooting death of
his former wife, Dorothy Philbrook. The defendant and his former
wife were divorced in 1975, but had been living together for
many years when, on August 17, 2007, the defendant shot her
five times on the street in front of their house in Everett,
in view of some of their neighbors. The defendant does not
dispute that he was the shooter. His defense at trial was
that he was not criminally responsible because the
prescription medications that he was taking exacerbated an
underlying brain disease, creating a mental disease or defect
that caused him to be unable to conform his actions to the
appeal, the defendant contends that the judge abused her
discretion in allowing the admission of evidence of prior bad
acts shortly prior to and immediately following the killing.
The defendant also claims that the judge erred in denying his
motion for a mistrial after learning that three jurors had
discussed the case before deliberations began. Finally, while
conceding that the evidence was sufficient to support his
conviction of murder in the first degree, the defendant
argues that a reduction in the verdict would be more
consonant with justice, and asks that we exercise our power
pursuant to G. L. c. 278, § 33E, to reduce the verdict
of murder in the first degree to a lesser degree of guilt.
affirm the convictions, and discern no reason to exercise our
power under G. L. c. 278, § 33E.
summarize the facts the jury could have found. The defendant
and the victim, who had divorced in 1975, renewed their
relationship in 1980. They did not remarry, but lived
together in a house in Everett. Their relationship was
tumultuous, and they "constantly" fought about
money. In the week prior to the shooting, the defendant told
his granddaughter that he believed the victim had stolen $50,
000 from him and had spent the money on lottery tickets. He
said that if he learned his suspicions were correct, he would
shoot and kill her. On August 15, 2007, two days before the
shooting, the defendant went to an athletic club where he
worked as a janitor and struck one of the club patrons with a
baseball bat. He told police he had done so because he
believed that the patron had stolen $700 from
Following this incident, the defendant was fired from his job
at the club.
P.M. on August 17, 2007, the victim telephoned her adult son
from her cordless home telephone and spoke with him as she
stood outside her house. She was upset and said she was
"fed up" with the defendant and was going to call
the police. The son heard the defendant pick up another
telephone, located inside the house, enabling him to hear the
conversation on that extension. The defendant was "very
angry, " and began "yelling" and swearing,
"[Y]ou're going to call the fucking police?"
neighbors saw or heard the events leading up to the shooting,
the shooting itself, and its immediate aftermath. At
approximately 8:20 P.M., the victim ran across the street
away from her house, screaming. The defendant followed her,
walking calmly, his arm extended and holding a gun in his
hand. As the victim continued running, she tripped on the
curb and turned toward the defendant, who began shooting at
her, repeating "take that, " after each of the
first three shots. The victim fell face down on the ground.
Standing over her, the defendant said, "Go ahead. Call
the fucking police, " then walked away. In all, the
defendant fired six shots; the victim was struck by five of
the bullets. Four of the bullets penetrated her body, in her
left arm, left torso, the back of her neck, and the left side
of her head, and a fifth grazed the back of her neck. She
died as a result of the gunshot wounds.
telephoned 911, and police arrived within minutes of the
shooting. Shortly after the shooting, a neighbor saw the
defendant standing on the corner of his street, craning his
neck and looking in the direction of his house. He then
turned around and "took off" away from the scene.
one-half hour later, the defendant approached a couple who
were sitting on the steps of their apartment building
listening to a police scanner and spoke to them. The man had
just heard that police were looking for a suspect with a gun.
When he noticed that the defendant was carrying a gun in his
pants, the woman telephoned 911. The defendant was
apprehended in a liquor store shortly thereafter, while
attempting to purchase a six-pack of beer, cigarettes, and
defendant's trial took place in February, 2013. The
roughly six-year period between the shooting and the trial
was due in part to several continuances for competency
evaluations by different experts.
defendant introduced testimony by three psychiatric experts
who opined that he suffered from an organic brain disease
that had resulted in shrinkage of his frontal
lobe. One of the experts, a clinical professor
of psychiatry at Harvard Medical School, testified that the
defendant had "organic brain syndrome" as a result
of brain injuries and the combined side effects of the
prescription medications he was taking at the time of the
shooting,  in conjunction with chronic alcohol and
illegal drug abuse (cocaine), which exacerbated the organic
brain disease. The expert testified that "compulsive
behavior" is a known side effect of the most recently
prescribed of the defendant's medications, Requip. He
opined that, in combination with the defendant's brain
disease and the other prescription medications the defendant
was taking, Requip had caused an "acute" side
effect, such that the defendant was "tipped . . . over
into a compulsive behavior . . . [and] unable to control his
behavior." This expert also testified that, at the time
of the shooting, the defendant's brain disease,
exacerbated by the medications he was taking, caused him to
develop a delusional belief that his former ...