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Commonwealth v. Gilbert

Appeals Court of Massachusetts, Worcester

October 3, 2018

COMMONWEALTH
v.
RICHARD L. GILBERT.

          Heard: May 10, 2018.

         Indictments found and returned in the Superior Court Department on September 13, 2002. A motion to withdraw pleas of guilty and for resentencing, filed on December 13, 2016, was heard by J. Gavin Reardon, Jr., J.

          Edward C. Gauthier, IV, for the defendant.

          Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

          Present: Trainor, Ditkoff, & Wendlandt, JJ.

          DITKOFF, J.

         Based on a long and brutal series of rapes and assaults on a single victim, the defendant, Richard L. Gilbert, pleaded guilty to multiple crimes, including eleven indictments for aggravated rape, in a plea without an agreement regarding disposition. Concluding that multiple counts of aggravated rape may be premised on a single aggravating factor, we reject the defendant's claim that three of his aggravated rape convictions and eight of his convictions of lesser offenses must be vacated. Further finding no ineffectiveness in plea counsel's lengthy sentencing argument or his advice to the defendant, we affirm the Superior Court order on the defendant's motion for postconviction relief.

         1. Background.

         At approximately 9 P.M. on June 26, 2002, the victim, a thirty-eight year old woman, arrived home alone to the apartment in Worcester that she shared with her two school-aged children. She encountered the defendant outside her apartment and exchanged cursory greetings with him before turning to her apartment. As she unlocked the door, the defendant pushed the victim inside and grabbed her face to cover her mouth as she screamed. He threw her face first onto the floor and told her to unbutton and unzip the shorts she was wearing, then pulled them down with her underpants. He repeatedly threatened her "to just do what he said," and not to scream. He said he "would hurt her," but that it "would be over in a minute."

         The defendant tried to enter the victim's vagina and rectum but was unable to do so. He then performed oral sex on her and digitally penetrated her vagina and rectum. The victim begged the defendant to let her go, falsely telling him her children would be home at any moment. The defendant did not stop; instead, he lifted her off the floor, told her they were leaving the apartment, took her keys, and carried her across the hallway to a second apartment, where the defendant's parents lived. The door was locked, and he was unable to enter despite kicking and banging on the door. He told her, "We're going back to your place," and said, "If you make any noise, I'll snap your neck."

         The defendant reentered her apartment with the victim and made her get on the floor. He grabbed some clothing and used it to gag and bind the victim with her hands behind her back, then took the victim out a back door to another hallway. They entered his parents' apartment through an unlocked back door. Once inside, he took the victim to a room with a mattress on the floor and told her to lie down. The defendant rubbed lotion and cream all over her body, then alternated between penetrating the victim vaginally and performing oral sex on her. He also forced her to perform oral sex on him. The defendant then turned the victim on her stomach, gagged her mouth, and hog-tied her hands and feet together. He carried her to a different bed in another room, then went inside a bathroom and returned with a hypodermic needle. Showing it to the victim, he said, "This is what drugs do to you. I'm a product of my environment. . . . It's almost over." The defendant took the hog-tied victim into the bathroom and put her on her hands and knees, then penetrated her anally until she screamed in pain. He stopped, then penetrated her vaginally and forced her to perform oral sex on him.

         The defendant prepared the needle for the victim, giving her an option: injection into her arm or into her neck. The victim begged the defendant not to inject her at all; nevertheless, he injected the needle into her buttocks and told her it was liquid valium. He shaved her pubic area and lathered her body with cream before vaginally raping her again and forcing her to masturbate herself. The defendant prepared another needle and injected the victim a second time into her foot. He put the victim on all fours and penetrated her from behind, then orally, ejaculating into her mouth. He made the victim wash her mouth out, telling her she was rinsing away evidence.

         As the defendant prepared a third needle, the victim said she "didn't feel right"; she was shaking, her mouth was dry, and she was experiencing heart palpitations. He replied, "[T]hat's what was supposed to happen," and injected her a third time, telling the victim "this was dinner and dancing." He also said to "never forgive him and what he did was a horrible thing," and that he had "added time because he had kidnapped her from her apartment." Then he vaginally raped her again.

         At this point the defendant untied the victim, letting her put on a pair of his jeans while he made a telephone call. On the telephone, the defendant said he had blacked out and awakened with someone he had taken against her will, but that it was too late to turn back now. He made the victim say hello to whomever he was talking to before hanging up. After the call, the defendant ordered her to undress ...


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