From Gambrel’s appeal: Defendant John Ed Gambrel, Jr., stands convicted of the February 5, 1989, murder of Lori Anne Schwegel in Whitefish, Montana. Following a report of a shooting shortly after 2 a.m. on that date, police officers discovered Schwegel’s body in the apartment she had shared with Gambrel. She had been shot three times in the chest, once in the right hand, once in the left cheek, and once in the right leg. Her body was lying on the living room floor next to a rifle and rifle case later determined to be Gambrel’s. Twelve spent shell casings were recovered from the living room, and two bullets were embedded in the ceiling. The front door of the apartment was ajar. There was no sign of forced entry or struggle.
Gambrel, suffering obvious head wounds, arrived at the apartment minutes later. He was transported to a hospital by ambulance, during which time he spoke a lot of gibberish and said, “help us, help us, ” ”help Lori, ” “them coke son-of -a-bitches, and also ”1 didn’t mean to hurt her.”
Gambrel claims that he and Schwegel were attacked by an unidentified third party. At trial, he testified that after a night on the town, he was knocked unconscious as he entered the apartment he and Schwegel shared. Gambrel testified that when he regained consciousness, he was lying across the body of Schwegel, who had stayed home that evening. He testified that he realized he had been shot and went to the apartment of his upstairs neighbor, who summoned the police.
Gambrel’s upstairs neighbor, Stuart McQuade, testified that he arrived home at about 2:00 a.m. He stated that he heard three ltbangsll just before Gambrel came to his door for assistance. He stated that he did not see anyone around the apartments and, other than the three “bangs,I1 did not hear anything, although according to him the apartment walls were thin.
Gambrel hypothesized that he and Schwegel had been shot on the orders of Ben Sagen, at whose home he had at one time stayed. He claimed that Sagen had a contract out on his life. Sagen denied that. Sagen testified that Gambrel did owe him money and that he had threatened to contract with a collection agency to recover it.
Gambrel talked to a group of police officers on his way home about 2:00 a.m. One of those officers characterized Gambrel’s behavior at that time as “acting quite different. The State’s theory is that Gambrel spent several hours downtown, went home and shot and killed Schwegel, returned to the bars, then talked to the officers in an attempt to establish an alibi before he again returned home and shot himself.
Gambrel had suffered two gunshot wounds. One was a grazing soft tissue injury to the chin. The other bullet entered under his chin, passed through the floor of his mouth, palate, nose and sinus, and exited between his eyes on the forehead. Two doctors testified at trial that Gambrel s injuries were consistent with self-inflicted gunshot wounds. Sagen testified that Gambrel had once bragged to him that he had been to a mercenary school where he had learned how to shoot people without killing them. The doctors did not find any injury to the back of Gambrel’s head from being knocked unconscious. Also, Gambrel could not explain why his jacket was found neatly folded on the sofa in the apartment.
Gambrel had been seen at various downtown Whitefish bars all evening on February 4-5 except for a period of about an hour beginning at 10 or 11 p.m. Witnesses testified that Gambrel was “very intoxicated1′ and “scary,11 and that he said he was planning to leave Schwegel and was angry with her. Gambrel denied making those statements and testified that he and Schwegel were very happy together.
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