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Gilmore v. Zimmerman

filed: June 27, 1986.



Author: Stapleton

Before; SLOVITER and STAPLETON, Circuit Judges, and LONGOBARDI, District Judge*fn*

STAPLETON, Circuit Judge

Appellant, Dr. Irvin Gilmore, challenges the propriety of a state trial judge's sua sponte decision to vacate appellant's plea of guilty to a charge of involuntary manslaughter and to order him to stand trial for murder. Appellant contends that the Double Jeopardy Clause precludes the court from subjecting him to trial after his guilty plea was accepted.

Appellant commenced the instant action by filing a petition for habeas corpus in the district court. Appellant appeals from the denial of relief. We have jurisdiction pursuant to 28 U.S.C. ยง 2253, and have previously issued a certificate or probable cause and stayed the pending state proceedings. We now affirm.


At 8:00 a.m. on November 27, 1980, appellant, a medical doctor, awoke and discovered his wife dead beside him in bed. The previous evening they had attended a Thanksgiving eve party, accompanied by their son and daughter-in-law. Appellant and his son had retired at 12:30 a.m., while appellant's wife and daughter-in-law had retired at approximately 2:00 a.m.

The medical evidence indicated that the decedent had died due to a lethal combination of alcohol and meperidine, a drug. The evidence further indicated that she had suffered several bruises to her head and face, and she had been injected with meperidine four to six times at two separate site areas in her right buttock, and that the location of the injections suggested that it was unlikely that the injections were self-administered.

After his wife's death, appellant made several self-incriminating statements to law enforcement officials regarding his wife's death. As a result, in June of 1981, appellant was charged with criminal homicide, aggravated assault, and recklessly endangering another person.

Appellant eventually entered a plea of guilty to the lesser included offense of involuntary manslaughter. The trial court conducted a lengthy and detailed plea colloquy, during which the prosecuting attorney outlined the factual basis for the plea:

On the morning of November 28th, 1980 the decedent wife of the defendant, Patricia Gilmore, was discovered dead in her bed. A later examination at the Reading Hospital. . . ., together with toxicology examinations . . . ., revealed that the decedent had received multiple injections of a drug known as meperidine. In addition, the blood alcohol level of . . . the decedent was .23 which we recognize as being way above the legal definition of intoxication in Pennsylvania. It was the conclusion of [three experts] that the cause of death was the combination of alcohol and meperidine, exact causes of death being poisoning by alcohol and meperidine.

The level of the meperidine in the blood system of the decedent was 2.9 micrograms per milliliter. It does fall within the range of known fatal dosage, and based on that blood alcohol level and the state medical knowledge known at the time, it was the conclusion of all of the Commonwealth witnesses and experts who would appear at trial, they would conclude that the cause of death was meperidine poisoning together with the alcohol.

Your Honor, in connecting the defendant with the cause of death, the Commonwealth would produce testimony, which would be statements made by the defendant to Chief Harley Smith,, Muhlenberg Township Police, and Trooper Barrie Pease; and those statements would show that the defendant was drinking alcoholic beverages a short time prior to the death, that the decedent was drinking alcoholic beverages, and further, that the B defendant made a statement to Trooper Pease that he gave the defendant (sic) injection or injections of a vitamin and meperidine. Further questioning of the defendant by Chief Harley Smith, the defendant denied at all times that he gave the defendant (sic) any injections.

It is the statement made to Trooper Pease that he gave the injection, together with the denial made to Chief Harley Smith and the absence of any other explanation as to the injections being received by the decedent that the Commonwealth brought the charges against the defendant.

If the Court please, based upon the state of the defendant's condition, that of intoxication together with his not denying at this time that he gave the injections, the Commonwealth will accept a plea to the charge of involuntary manslaughter.

Plead of Guilty, January 10, 1983, A-499-501.

The defense attorney then offered his comments on the statement of facts given by the prosecution:

Your Honor, if it please the Court, I have reviewed this matter with Dr. Gilmore. I understand that he understands that the statements made by [the prosecuting attorney] . . . are those which the Commonwealth would tend to prove at and would attempt to prove at the time of trial.

I would like to state for the record that the evidence would show that in fact Dr. Gilmore and his wife were at a party the night before, that he had consumed intoxicating beverages, that he was extremely physically exhausted at the time, that he recognizes the possibility that he may have injected meperidine in accordance with the statement which has been admitted by the Court.

I would further like to state for the record that although Dr. Gilmore is not denying -- or let me correct that. The statement as set forth by [the prosecuting attorney] . . . that at this time he is not denying should be elaborated upon in this respect: That he is stating he has no recollection of injecting his wife with meperidine or any of the acts related to this incident as a result of his consumption of alcohol and the physical exhaustion at the time.

He is entering his plea because he has concluded, after advice from counsel, that it would be to his best interests to enter the plea of guilty to involuntary manslaughter.

Id. at A-501-02.

In response to the court's questioning, the parties advised that the following plea bargain agreement had been reached:

Your Honor, we have agreed that a pre-sentence report should be obtained and ordered and directed by the Court, that the pre-sentence report should include a full psychiatric and physical examination of the defendant and that based upon that pre-sentence report, ...

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