Gilbert v. State, 487 So.2d 1185 (Fl. Dist. Ct. 1986).
Defendant, 75 years old, killed his wife who suffered from osteoporosis and Alzheimer’s disease. The defendant argued that he killed his wife so as to alleviate her off her pain and suffering. A jury convicted the defendant of first degree murder. On appeal, the defendant argued that the trial judge erred by failing to include instruction euthanasia, and also by failing to give a charge on the word “felonious” as an act proceeding from “an evil heart or purpose; done with a deliberate intention of committing a crime. …”
Held: Defendants conviction was affirmed because euthanasia is not a defense to first degree murder in Florida, and the court has been furnished with no law or statue to the contrary. Also, the crime of first degree murder does not include or define felonious as involving evil, malicious or malignant motivation or intent.
Upon trial by jury, Roswell Gilbert was found guilty of the premeditated murder of his wife, Emily. At age 75, Roswell was sentenced to life imprisonment.
Here are the facts that led to Roswell’s conviction.
Mr. and Mrs. Gilbert lived together in a Fort Lauderdale
condominium. They had been married for 51 years. Emily Gilbert suffered from osteoporosis and Alzheimer’s Disease. There is no doubt that she was in pain because of the osteoporosis and sometimes confused because of the Alzheimer’s.
At trial, Gilbert’s attorney called a couple of Emily’s friends, in addition to Dr. Hidalgo, to testify as to her physical and emotional condition before her death. On direct examination Lillian Irvin testified that Emily was in a lot of pain because of the arthritis.
One day, while Lillian was in her condominium office, Emily came in looking for Roswell. She was upset and crying. He was in a condominium meeting, so Lillian called him out of the meeting to come and attend to his wife. When he arrived Emily said, “I’m so sick, I want to die, I’m so sick … Ros I want to die, I want to die.”
On cross-examination Lillian testified that Emily would come down from her tenth floor apartment every day to either look for Roswell or walk around the condominium pool. The couple also went out to lunch every day.
Jacqueline Rhodes also testified for the defense. She stated that Emily had deteriorated during the last two years of their acquaintance. She was forgetful at times and in pain because of her back. In Jacqueline’s opinion Roswell had always been very kind and attentive to his wife.
On one particular occasion, Jacqueline went to the Gilberts’ apartment and saw Emily lying on the sofa crying and looking very sick. This struck Jacqueline as particularly indicative of Emily’s condition.
Roswell testified in his own defense. He recounted their lives together from the first incident of osteoporosis, which was approximately eight years before her death. As time progressed the arthritis worsened and then Emily began to lose her memory. This was diagnosed as Alzheimer’s Disease. The manifestation of Emily’s illness which appeared to bother Roswell the most was her increased dependence on him.
Roswell then described the events which led up to Emily’s death.
On March 2, Emily had another bout with osteoporosis. The next day he took her to the hospital. Emily did not want to stay there and became uncooperative and insisted on going home. Finally, Roswell decided it was best to take her home. This made Emily feel better.
On March 4, the day of the killing, Roswell took Emily out to lunch as usual. When they got back he gave her four Percodan tablets, put her on the sofa and went to a condominium meeting. A few minutes later Emily followed him down to the meeting. Roswell left the meeting and took Emily back to their apartment. As she lay on the sofa, she said, “Please, somebody help me. Please, somebody help me.”
In his own words this is how Roswell killed Emily:
Who’s that somebody but me, you know, and there she was in pain and all this confusion and I guess if I got cold as icewater that’s what had happened. I thought to myself, I’ve got to do it, it’s got to be mine, I’ve got to end her suffering, this can’t go on.
I went in. The gun was up on the top shelf with a clip in it. I loaded it with one shell, pulled the clip out. I don’t like to leave loaded guns laying around.
Well, then I shot her in the head. I felt her pulse, I could still feel it. I thought, Oh, my God, I loused it up.
I went back to the shop. This time I was shaking. I wasn’t cold as ice at all. Back to the shop, put another round in the gun, came back, put another bullet in her head.
The only comforting thing, the first shot there was no convulsive reaction, just her right hand shook like that fast and her head went over the impacted bullet and it slowly came down, didn’t make any noise except her mouth just opened slowly like that and then, you know, I thought it hit so fast she didn’t know what happened. Then I felt her pulse. It turned out I was wrong. The pulse keeps going after this episode for a few minutes anyway. I didn’t know that. I just thought I had, you know—and the second time I fired I felt the pulse seemed to be gone. So I somehow got to the telephone and called the security guard downstairs and I said, “I just killed my wife.”
The jury found Gilbert guilty of first degree murder. He appealed his conviction. On appeal he argued that the trial court erred in failing to give a charge on the word felonious, and also for failing to include instructions on euthanasia.
Whether the trial court erred in failing to include instructions on euthanasia and a charge on the word “felonious”
Euthanasia is not a defense to first degree murder in Florida, and the court has been furnished with no law or statue to the contrary. Also, the crime of first degree murder does not include or define felonious as involving evil, malicious or malignant motivation or intent.
Here, the defendant made two arguments. The defendant argued that the trail court erred by refusing to give the following instructions on the word “felonious”
The Court will give you the definition of the word “feloniously” as follows:
Of, pertaining to, or having, the quality of felony. Proceeding from an evil heart or purpose; done with a deliberate intention of committing a crime. Without color of right or excuse. Malignantly; maliciously. Acting with a felonious intent; i.e., acting with intent to commit a felony.
But the court of appeals found that no error was committed because the matter was adequately and correctly covered by the standout jury instruction on first degree murder.
Moreover, the term felonious is mere surplusage. The crime of first degree murder as defined in Florida Statutes, does not include the definition of “felonious” as proposed by appellant. involving evil, malicious or malignant motivation or intent.
Finally, it is not reflected how appellant was prejudiced or how the outcome of the trial would have been different but for the exclusion.
Next the defendant argued that the trail court erred by failing to include instructions on euthanasia.
Again the court of appeals disagreed with the defendant. The court explained that euthanasia is not a defense to first degree murder in Florida and this court has been furnished with no law or statute to the contrary.
If a requested instruction is not a legal defense then there is no error in refusing it.
Defendants conviction was affirmed because the court found the trail court did not err by refusing the defendants requested instructions.