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Commonwealth v. Philbrook

Supreme Judicial Court of Massachusetts, Middlesex

July 28, 2016

COMMONWEALTH
v.
GEORGE PHILBROOK

          Heard December 11, 2015.

         Indictments found and returned in the Superior Court Department on September 27, 2007.

         The cases were tried before Kathe M. Tuttman, J.

          Elizabeth Caddick for the defendant.

          Bethany Stevens, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, JJ. [1]

          DUFFLY, J.

         The 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.[2] 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 law.[3]

         On 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.

         We affirm the convictions, and discern no reason to exercise our power under G. L. c. 278, § 33E.

         1. Background.

         a. Commonwealth's case.

         We 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.[4] 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 him.[5] Following this incident, the defendant was fired from his job at the club.

         At 8:16 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?"

         Several 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.[6]

         Neighbors 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.

         Approximately 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 candy.

         b. Defendant's case.

         The 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.

         The 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.[7] 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, [8] 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 ...


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