Commonwealth v. Philbrook (Lawyers Weekly No. 10-109-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11615 COMMONWEALTH vs. GEORGE PHILBROOK. Middlesex. December 11, 2015. – July 28, 2016. Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Homicide. Evidence, Prior violent conduct, State of mind, Intent. Practice, Criminal, Capital case, Argument by prosecutor, Mistrial, Jury and jurors, Conduct of juror. Jury and Jurors. 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. 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. 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 […]