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Com. v. Kosilek8/8/1996
Homicide. Practice, Criminal, Instructions to jury, Assistance of counsel, Argument by prosecutor, Capital case. Intent. Mental Impairment. Intoxication. Evidence, Prior inconsistent statement. Self-Defense.
LYNCH, J. The defendant, Robert Kosilek, was convicted of murder in the first degree under theories of premeditated and deliberate murder and extreme atrocity or cruelty for the death of his wife, Cheryl Kosilek. On appeal, the defendant contends that his conviction must be reversed principally because of: (1) errors in jury instructions; (2) limitation of cross-examination on the issue of self-defense; and (3) improper statements in the prosecutor's closing argument. The defendant also challenges the Judge's denial of his motion for a required finding of not guilty, and alleges ineffective assistance of trial counsel. We have considered these arguments and have reviewed the entire record pursuant to G. L. c. 278, § 33E (1994 ed.). We affirm the conviction.
1. Facts. We review the facts in the light most favorable to the Commonwealth. Commonwealth v. Morgan, 422 Mass. 373, 374, 663 N.E.2d 247 (1996). The victim's body was discovered in the back seat of her automobile in a shopping mall parking lot in North Attleborough on the evening of Sunday, May 20, 1990, after the mall had closed for the evening. She had been strangled with a rope and a wire.
A taxicab driver testified that he picked up the defendant from the same mall on the afternoon of May 20 and drove him to a store located about one-half mile from the defendant's house in Mansfield. That evening, police in North Attleborough received a telephone call from the defendant stating that his wife had not come home that evening and asking whether there had been any report of an automobile accident in which she might have been involved. The police told the defendant that they had located his wife's automobile, and they asked him to come to the police station, which he agreed to do. At the defendant's request, an officer was sent to pick him up and bring him to the station. At the station, Lieutenant Michael Gould informed the defendant that "a body was found in the back seat" of his wife's automobile. Gould questioned the defendant about his actions and the victim's actions during the day. The defendant stated that the victim had gone to work for part of the day and intended to stop at the mall on the way home; he also said that he had spent the day working around the house.
The following day, May 21, 1990, the defendant was again asked to come to the police station to speak with Gould. During the interview, Gould advised the defendant that he was a suspect and informed him of his Miranda rights. Gould told the defendant that the police had spoken with the victim's son, Timothy McCaul, who had lived with the defendant and the victim. McCaul told the police that he had been working during the day of the murder, that he called home at about 5 P.M. to ask for a ride home, and that no one answered the telephone. The defendant noted that Timothy often dialed wrong numbers, and he suggested that he may have been in the shower at the time of the call and failed to hear it. During this second interview with police, the defendant excused himself to go downstairs for cigarettes. Once downstairs, the defendant called up to the officers that he was going to get a lawyer, and left.
On May 22, 1990, shortly after midnight, the defendant was involved in an automobile accident in Bedford. When a police officer arrived at the scene, he observed the defendant, dressed in women's clothing, seated in his vehicle, which had crashed into a stop sign and some shrubs. The officer administered field sobriety tests, det
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