State v. Matthew Gumkowski

January 9, 2020
Supreme Court
No. 2018-42-C.A.
(P1/12-1584A)
State :
v. :
Matthew Gumkowski. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2018-42-C.A.
(P1/12-1584A)
State :
v. :
Matthew Gumkowski. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Matthew Gumkowski (defendant or
Gumkowski), was found guilty by a jury of first-degree murder and first-degree arson.
Gumkowski appeals his conviction on the basis of the denial of his motion for a new trial because,
he argues, the weight of the evidence does not support the jury’s verdict. After considering the
parties’ written and oral submissions and reviewing the record, we hold that the trial justice was
not clearly wrong to deny the defendant’s motion for a new trial. For the reasons set forth in this
opinion, we affirm the judgment of the Superior Court.
I
Facts and Procedural History
On May 11, 2011, Michael DiRaimo’s throat was slashed and his dwelling burned. On
May 25, 2012, defendant was charged by indictment with murder and arson. A jury trial was held
over three days in June 2016. At trial, the state presented testimony from six individuals. The
testimony revealed the following.
On May 11, 2011, at 10:01 p.m., the fire department was called to 39 Sophia Street in
Providence. Sean Reddy, who was an arson investigator in the Providence fire department, arrived
at the scene at about 10:30 p.m. Reddy responded to that address to conduct “an origin cause
-1-
investigation to the fire.” Upon viewing the interior of the burned structure, he observed a “male
deceased victim lying on the floor.” The victim was positioned face down. In accordance with
protocol, the Office of the State Fire Marshal and the Office of the Medical Examiner were
notified.
As part of his investigation, Reddy began “removing [the] debris from the fire scene[.]”
During that process, Reddy noticed a laceration on the victim’s neck and a “substantial amount of
blood” underneath him. At that point, Reddy “immediately stop[ped,] * * * removed [himself]
from the scene[,] and made the appropriate notifications to make sure everyone was aware of what
[he] just observed[.]” Reddy testified that the victim’s throat was slashed from right to left,
“almost a complete[] 360 around his neck.” With respect to the fire, Reddy classified it as “an
incendiary arson fire[,]” having two separate points of origin.
Alexander Chirkov, M.D. was the acting Chief Medical Examiner for Rhode Island at the
time of trial; he was an assistant medical examiner in 2011. He testified that on May 12, 2011, he
was present at the autopsy of an individual identified as Michael DiRaimo.1 The post-mortem
examination revealed that DiRaimo was a white male, about forty-one years of age, who was
“covered with soot[,] and [there was] evidence of first[,] second[,] and third degree burn [sic]”
over his entire body. The interior of his neck was cut, and he had two four-centimeter puncture
wounds on the palm of his right hand. DiRaimo’s neck wound was a twelve-inch “cut wound on
[the] interior neck from right to left, up to the anterior neck to the spinal vertebrae. * * * [I]n depth
we’re talking about [the] entire thickness of the anterior neck.” The wound dissected the victim’s
1
Doctor Chirkov was in the autopsy room when George Lauro, M.D., who has since passed away,
conducted the autopsy. Doctors Lauro and Chirkov had discussed the findings from the autopsy
after its conclusion.
-2-
jugular vein, trachea,2 and carotid artery. Doctor Chirkov testified that the wounds on the victim’s
hand were “classified as defensive wound[s] where the person tried to protect himself using his
hands.”
The autopsy also disclosed that there was no evidence of smoke inhalation, soot, or ashes
in DiRaimo’s throat, and that carbon dioxide levels in his blood were less than 0.1 percent—an
amount consistent with a chronic smoker. Doctor Chirkov testified that, to a reasonable degree of
medical certainty, the cause of DiRaimo’s death was blood loss due to the wound to his neck.
Doctor Chirkov testified that the manner of DiRaimo’s death was homicide.
Detective Kenneth Court of the Providence police department testified that on May 11,
2011, he responded to 39 Sophia Street to investigate DiRaimo’s death. Detective Court testified
that there were no eyewitness accounts of either the arson or the homicide. Further, Det. Court
testified that, to his knowledge, no murder weapon was found and defendant’s DNA was not found
at the crime scene. During his search for a suspect following the murder, Det. Court requested the
victim’s cell-phone records—phone calls, text messages, and cell-tower location information—for
the period from April 16, 2011, to his death on May 11, 2011. A review of the victim’s phone
records revealed text and call communications between DiRaimo’s cell-phone number and
Gumkowski’s cell-phone number. The trial justice permitted both the full call and text-message
records between DiRaimo’s phone and anyone with whom he was in contact, as well as an
“outline” of all text messages and phone calls sent and received exclusively between defendant
and DiRaimo from April 16 through May 11 to be admitted into evidence as full exhibits. 3
2
The trachea is colloquially known as the windpipe or air pipe.
3
The state introduced the full subpoenaed text and call history into evidence, without objection.
The trial justice also admitted into evidence the outline of the texts and calls exclusively between
Gumkowski and DiRaimo, over defendant’s objection.
-3-
Detective Court testified that DiRaimo’s phone records show that the “vast majority” of
DiRaimo’s communications with Gumkowski were between May 10 and May 11, the day of the
fire and homicide. The text message history portrayed a relationship between DiRaimo and
defendant involving drugs and sex—with DiRaimo supplying the drugs in exchange for
Gumkowski’s sexual favors. Further, while DiRaimo occasionally referenced their sexual
relationship in text messages, Gumkowski’s texts to DiRaimo reveal that Gumkowski was
concerned about the information disclosed in the messages. The day before DiRaimo was killed,
Gumkowski objected to DiRaimo commenting by text message about their planned sex-for-drugs
exchange; in response to Gumkowski asking DiRaimo if he still had “the 4 blue & 20[,]” DiRaimo
confirmed, “Yes u got ur hands and mouth right lol[,]” but Gumkowski objected to DiRaimo’s
sexual reference, exclaiming, “dont write that shit mikey what if sum1 read ur phone!!”
A text message conversation that lasted from the evening before the homicide until the
early morning on the day of the murder implied that a planned exchange between DiRaimo and
Gumkowski had gone awry. Portions of that conversation are as follows, based upon the records
of DiRaimo’s cell phone provided by his cell-phone provider, Metro PCS.4
Date/Time From To Message
5/10/2011 DiRaimo Gumkowski I just talked 2 him he wants 2 know if u will buy 8
6:35 p.m. of them and i buy 4 of them he wont come all the
way down here 4 less than that and he cant be here
till 930
5/10/2011 Gumkowski DiRaimo Thats fine
6:35 p.m.
* * *5 *** *** ***
5/10/2011 Gumkowski DiRaimo U want me 2 park around?
8:39 p.m.
4
Notation in the following tables to DiRaimo and Gumkowski are in place of the cell-phone
numbers of those individuals on the exhibit. It is undisputed that these respective cell-phone
numbers are associated with the cell phones owned by Gumkowski and DiRaimo.
5
Deletions in the table may signify the deletion of multiple lines of text messages from the exhibit.
In addition, some of these omitted text messages were between DiRaimo and other individuals.
-4-
5/10/2011 DiRaimo Gumkowski Yes like last time not in driveway
8:39 p.m.
5/10/2011 Gumkowski DiRaimo K
8:40 p.m.
5/10/2011 DiRaimo Gumkowski Ur a piece of shit u robed me and i got 2 pay 4 Them
9:07 p.m. now
*** *** *** ***
5/10/2011 DiRaimo Gumkowski Ur a crackhead u piece of fucking shit i will get u i
9:23 p.m. got 2 pay 4 that i know where u work and 4 who
*** *** *** ***
5/10/2011 DiRaimo Gumkowski If u dont answer me I will call u all nite
9:32 p.m.
5/10/2011 DiRaimo Gumkowski If u dont answer me I will call u all nite
9:35 p.m.
*** *** *** ***
5/10/2011 DiRaimo Gumkowski Call me
9:41 p.m.
5/10/2011 DiRaimo Gumkowski I have been 2 ur new house be4
9:43 p.m.
*** *** *** ***
5/10/2011 Gumkowski DiRaimo U mad @ me?
10:34 p.m.
5/10/2011 Gumkowski DiRaimo Hey u home? Im gunna cum by wit the loot 4 the
10:43 p.m. blueberrys
*** *** *** ***
5/11/2011 DiRaimo Gumkowski Fuck u
1:26 a.m.
5/11/2011 Gumkowski DiRaimo I said sorry mikey!!! Ill cum c u 2marro I go the $
1:29 a.m. 4 u!!
5/11/2011 DiRaimo Gumkowski Dont bother after what u did 2 me i will never
1:31 a.m. bother with u u do that 2 me i dont trust u i will pay
the guy why would u do that 2 me
Nonetheless, several hours later, around noon on May 11, 2011, DiRaimo reached out to
Gumkowski about meeting for payment and whether Gumkowski wanted “the other 7 [pills].”
Around that same time, Gumkowski also agreed to give DiRaimo a ride to West Warwick:
5/11/2011 DiRaimo Gumkowski K do u want the other 7 i showed u cause i have
12:00 p.m. them i sent u a pic
5/11/2011 DiRaimo Gumkowski U want 2 meet me in w warwick at 4.30
12:00 p.m.
5/11/2011 Gumkowski DiRaimo Ok
12:02 p.m.
-5-
5/11/2011 DiRaimo Gumkowski Ok what u want the 7 more or ok u will meet me at
12:03 p.m. shell at 4.3o or both
5/11/2011 Gumkowski DiRaimo Both & why @ shell?
12:04 p.m.
5/11/2011 Gumkowski DiRaimo U need a ride home?
12:04 p.m.
*** *** *** ***
5/11/2011 DiRaimo Gumkowski Matt i am going 2 be home so call me when u can
1:29 p.m. come here i can ride back 2 west warwick with u
later
Later that day, Gumkowski did not respond to DiRaimo’s messages telling Gumkowski
that DiRaimo had to pay his own drug dealer by 7 p.m. and asking Gumkowski what time he would
arrive. DiRaimo then called defendant a “crack head” via text message and asserted that
defendant’s only value derived from the sexual favors he performed for DiRaimo. Gumkowski
responded two hours later: “I just got up, real nice txt! Now u go fuck urself
hahahahahahahahahahaha[.]” At that point, DiRaimo began threatening to tell Gumkowski’s boss,
“baby mother[,]” and the people Gumkowski lived with about their sexual relationship and that
Gumkowski was supposedly a thief. After some back and forth, Gumkowski apologized, agreed
to see DiRaimo after he ate, and reminded DiRaimo that he owed him a massage:
5/11/2011 DiRaimo Gumkowski Fu u were never paying me i better never see u in
5:49 p.m. w warwick crackhead every1 will know u suck dick
ur bosses
*** *** *** ***
5/11/2011 Gumkowski DiRaimo Ok they all no!!
5:50 p.m.
*** *** *** ***
5/11/2011 DiRaimo Gumkowski The people u live with will no u suck dick and ur a
5:52 p.m. thief dont show ur face in w warwick bitch I should
of came in ur mouth last nite i will be at ur house
5/11/2011 DiRaimo Gumkowski Tomorrow nite 2 let them know i was going 2 give
5:53 p.m. u 7 more and take the loss but now fu haha
*** *** *** ***
5/11/2011 Gumkowski DiRaimo Fuck i said fuckin sorry mike!! Ill b there afta i eat!!
5:59 p.m.
-6-
5/11/2011 Gumkowski DiRaimo Fine & i owe u a massage!! Im a man of my word!!
6:01 p.m.
5/11/2011 DiRaimo Gumkowski Ok
6:02 p.m.
At 6:47 p.m., Gumkowski texted DiRaimo that he was leaving to meet DiRaimo “shortly[.]”
In addition to these text messages, DiRaimo and Gumkowski placed numerous calls to one
another—some were answered, and some were not answered. For example, DiRaimo, via text
message at 9:35 p.m. on May 10, 2011, threatened to call Gumkowski “all nite” when he believed
that Gumkowski had stolen drugs from him, and then proceeded to place approximately sixty calls
to Gumkowski between 10:12 and 10:56 that night. Most of those calls were unanswered, but
Gumkowski did place a seventeen-second call to DiRaimo at 10:25 that night.
Detective Court testified that the last phone call from DiRaimo to Gumkowski was at
8:42:19 p.m. on May 11—the night of the arson and homicide—about an hour and twenty minutes
before the fire department was alerted. That call lasted fifty-one seconds. After that 8:42 p.m. call,
there were two more incoming calls to DiRaimo’s phone that night that “have a corresponding
tower[,]” indicating that DiRaimo’s phone was on. Those calls occurred at 9:43:25 p.m. and
10:45:26 p.m. on May 11, 2011, and corresponded to cell tower numbers seventy-three and fifty-
nine, respectively. The location of cell tower number seventy-three is on Briggs Street in
Cranston, and cell tower number fifty-nine is on Old Switch Road in Hopkinton. The arson and
murder occurred at 39 Sophia Street, Providence—near cell tower seventy-three. And, at the time,
Gumkowski resided about forty miles away in a house on Spring Street in Hopkinton. The location
of cell tower number fifty-nine is within a mile of Gumkowski’s residence in Hopkinton, where
Det. Court ultimately discovered DiRaimo’s cell phone among Gumkowski’s belongings on
August 3, 2011. At least another twenty calls to DiRaimo’s cell phone, between May 12 and May
-7-
18, 2011, did not have corresponding towers, which, Det. Court testified, indicates that the phone
was turned off sometime after the call that was received at 10:45:26 p.m. on May 11.
After Det. Court discovered DiRaimo’s cell phone at the place where defendant had resided
at the time of the murder, Detective Ralph Costantino, a crime scene investigator who is employed
by the Providence police department in the Bureau of Criminal Identification, examined the phone
in Det. Court’s presence. Detective Court testified that, when Det. Costantino powered up the
phone, the phone displayed DiRaimo’s phone number. Further, when Det. Costantino opened the
phone and removed the battery, Det. Court observed that the serial number matched DiRaimo’s
phone’s serial number, indicating that the phone was, in fact, DiRaimo’s phone. Detective
Costantino took a DNA sample from Gumkowski, and he also took four swab samples off the
phone to test for DNA.
Tamara Wong, senior forensic scientist at the Rhode Island Department of Health Forensic
Science Laboratory, testified as an expert in the field of forensic DNA. Wong developed a DNA
profile for Gumkowski using the sample that Det. Costantino had taken from Gumkowski. She
was unable to produce a profile from three of the four samples that Det. Costantino had taken from
the phone, but one sample from the back of the phone “resulted in a partial mix DNA profile.”
Wong then compared the two samples and found that Gumkowski could not be excluded as a
contributor to the DNA that was found on the back of DiRaimo’s cell phone. In fact, she found
that it “is 52 trillion times more likely” that Gumkowski did contribute to the partial DNA found
on the back of DiRaimo’s cell phone than did some other unknown person. However, Wong
testified on cross-examination that she could not determine when or how the DNA got on the
phone.
-8-
Julianna Hollister testified that, in 2011, Gumkowski lived with her and her husband on
Spring Street in Hopkinton. In the spring of 2011, she asked Gumkowski to leave and not come
back to the property, placed some of his clothing at the end of the driveway, and otherwise left the
room in which Gumkowski had stayed untouched. Again, as Det. Court testified, the victim’s cell
phone was discovered on August 3, 2011, in the room where Gumkowski had resided at the time
of the murder.
After the state’s last witness testified, the defense rested. The jury returned with a guilty
verdict on both counts on June 13, 2016. The defendant filed a motion for a new trial pursuant to
Rule 33 of the Superior Court Rules of Criminal Procedure. The motion was heard on July 12,
2016, and the trial justice denied the motion in an oral decision rendered at the end of the hearing
on the same day. The defendant was sentenced on September 6, 2016, to a mandatory life sentence
for the first-degree murder conviction and a consecutive forty-five-year sentence for the first-
degree arson conviction.6 Gumkowski filed the instant appeal on September 12, 2016.
II
Standard of Review
The defendant appeals from the trial justice’s denial of his motion for a new trial. As we
have oft repeated, “when a trial justice is presented with a motion for a new trial based on the
weight of the evidence, he or she acts as a thirteenth juror and exercises independent judgment on
the credibility of witnesses and on the weight of the evidence.” State v. Johnson, 199 A.3d 1046,
1050-51 (R.I. 2019) (brackets omitted) (quoting State v. Gomez, 116 A.3d 216, 223 (R.I. 2015)).
“The trial justice must consider the evidence in light of the jury charge, then independently assess
6
The defendant also had been convicted of similar, but unrelated, crimes in Massachusetts; and,
as such, the trial justice ordered that these sentences are to “run consecutive to * * * the
Massachusetts sentences.”
-9-
the credibility of the witnesses and the weight of the evidence, and also ultimately determine
whether he or she would have reached a result different from that reached by the jury.” Id. at 1051(brackets omitted) (quoting Gomez, 116 A.3d at 223). “If, after conducting this independent
review, the trial justice agrees with the jury’s verdict or if the evidence is such that reasonable
minds could differ as to the outcome, the motion for a new trial should be denied.” Id. (quoting
Gomez, 116 A.3d at 223). “Only when the trial justice does not agree with the jury’s verdict, must
he or she embark on a fourth analytical step.” Id. (brackets omitted) (quoting Gomez, 116 A.3d
at 223).
“This Court’s review of a denial of a motion for a new trial is deferential because the trial
justice is in an especially good position to evaluate the facts and to judge the credibility of the
witnesses.” Johnson, 199 A.3d at 1051 (deletion omitted) (quoting Gomez, 116 A.3d at 223). “If
the trial justice has articulated adequate grounds for denying the motion, his or her decision is
entitled to great weight and will not be overturned by this Court unless he or she has overlooked
or misconceived material evidence or was otherwise clearly wrong.” Id. (quoting Gomez, 116 A.3d
at 223).
III
Discussion
On appeal, defendant argues that the trial justice was clearly wrong when she denied his
motion for a new trial because, according to defendant, the verdict was against the weight of the
evidence.7 Specifically, Gumkowski argues that the evidence did not support a finding that he was
the murderer and that the evidence did not support a finding of premeditation beyond a reasonable
7
While defendant was convicted of first-degree arson, he does not provide an argument on appeal,
beyond conclusory statements, that the guilty verdict pertaining to arson was against the weight of
the evidence.
- 10 -
doubt. We begin by recognizing that, in this case, the “trial justice applied the correct standard for
assessing the motion for a new trial and articulated sufficient grounds for denying the motion; [her]
decision is therefore entitled to great weight and deference pursuant to our well established
standard of review.” Johnson, 199 A.3d at 1051.
A
Gumkowski argues that the evidence did not support a finding that he was the perpetrator
because: (1) the text messages did not prove motive; (2) the fact that DiRaimo’s cell phone was
ultimately found among Gumkowski’s belongings supports, at most, a finding of theft; and (3) the
excerpted text history between Gumkowski and DiRaimo entered by the state as a full exhibit was
misleading because it led the jurors and the trial justice to overlook DiRaimo’s full text-message
history—which was also entered as a full exhibit.
The crime of murder is defined, in relevant part, as “[t]he unlawful killing of a human being
with malice aforethought * * *. Every murder perpetrated by poison, lying in wait, or any other
kind of willful, deliberate, malicious, and premeditated killing * * * is murder in the first degree.
Any other murder is murder in the second degree.” General Laws 1956 § 11-23-1. “Although
motive is not an essential element of murder, ‘evidence of motive is often probative and relevant,
and therefore admissible in proper circumstances.’” State v. Pule, 453 A.2d 1095, 1098 (R.I. 1982)
(brackets omitted) (quoting State v. Gazerro, 420 A.2d 816, 825 (1980)). In Pule, the Court held
that “evidence of motive was admissible to prove that defendant was the person who committed
the criminal act.” Id. (citing McCormick’s Handbook of the Law of Evidence § 190 at 450-51 (2d
ed. Cleary 1972)).
The text messages between DiRaimo and Gumkowski depict a relationship that was based
on drugs, sex, money, and secrets. The day before the murder, Gumkowski asked DiRaimo via
- 11 -
text message, “U got the 4 blue & 20 rite?”; to which the victim responded, “Yes u got ur hands
and mouth right lol[.]” In response to the drugs-for-sex exchange DiRaimo was referencing,
Gumkowski alluded to wanting to keep the sexual nature of their relationship secret: “Lol dont
write that shit mikey what if sum1 read ur phone!!” DiRaimo responded, “Nobody ever reads my
phone it is always with me[.]” Shortly thereafter, at around 9 p.m. on the day before DiRaimo was
murdered, DiRaimo appeared to become increasingly enraged with Gumkowski, apparently
accusing Gumkowski of taking DiRaimo’s drugs without having paid for them. In a period of
little more than a half-hour, DiRaimo sent seventeen unanswered text messages to defendant,
stating, inter alia: “Ur a piece of shit u robed me and i got 2 pay 4 Them now[,]” and “Ur a
crackhead u piece of fucking shit i will get u i got 2 pay 4 that i know where u work and 4 who[.]”
On the day of the murder, at around noon, DiRaimo and Gumkowski had apparently
reconciled enough to arrange for Gumkowski to meet with DiRaimo to pay for the drugs; however,
by that evening, DiRaimo sent Gumkowski a slew of messages threatening Gumkowski, calling
him names, and stating that he was only good for sexual favors. DiRaimo went on, at about 6
p.m., to threaten to reveal their sexual relationship to Gumkowski’s boss, the mother of his child,
and the people with whom he lived. Gumkowski replied, “Ok they all no!!” and “Ok[.]”
Thereafter, Gumkowski apologized to DiRaimo and said that he would meet DiRaimo after he ate.
By 6:47 p.m. on the day of the murder, Gumkowski texted DiRaimo that he was leaving to meet
DiRaimo soon, and about an hour later Gumkowski texted, “U got the 7 still? Get a spoon * * *
Im hurtin[.]”
The trial justice recounted these messages in her bench decision denying defendant’s
motion for a new trial. In the process, she remarked that defendant’s apparently passive responses
to DiRaimo’s threats to expose their sexual relationship seemed to contradict defendant’s earlier
- 12 -
concern about alluding to the sexual aspect of DiRaimo’s and Gumkowski’s relationship in text
messages for fear that someone would see the messages. She also highlighted the fact that there
were telephone calls—some lengthy—between DiRaimo and Gumkowski during this time period.
Further, the trial justice found that “the jury reasonably inferred that [d]efendant had something to
be concerned about, an angry and vengeful DiRaimo who was threatening to reveal information to
others about [d]efendant * * * and [d]efendant knew it.” We are satisfied that the trial justice was
not clearly wrong in concluding that the jury could have reasonably inferred motive from the text
messages between DiRaimo and Gumkowski; as she stated, “the jury reasonably inferred as does
the [c]ourt the [d]efendant went to DiRaimo’s house, killed him, set the house on fire to cover up
the murder, took the phone and went home, and it was indeed the [d]efendant who took the phone.”
She also concluded that the jury was justified in finding that the evidence of DiRaimo’s
cell-phone location based on the “pings” from the cell towers was credible and that the jury made
a reasonable inference that Gumkowski took the phone from DiRaimo’s dwelling to his own
residence, where the phone was eventually found. The text-message exchanges demonstrate that
the trial justice did not misconceive the evidence when she concluded that the jury could have
reasonably inferred that “DiRaimo never voluntarily would have given anyone his phone” and that
“[e]ven if [defendant] killed DiRaimo and had left the phone behind, the damaging information
would come out. He had motive to silence DiRaimo, and he had motive to steal the cell phone.”
The defendant also contends that the trial justice erred by reviewing only the text history
between Gumkowski and DiRaimo, thus overlooking the complete record of DiRaimo’s text
messages entered into evidence.8 According to defendant, DiRaimo’s entire text history reveals
8
While the trial justice admitted the excerpted text messages and phone calls over defendant’s
objection pursuant to Rule 1006 of the Rhode Island Rules of Evidence, we note that the excerpt
was not admitted in lieu of the full text-message history, but in addition to it. See R.I. R. Evid.
- 13 -
him to be an opioid dealer who led a complicated and very stressful life. The complete messages,
defendant asserts, demonstrate that DiRaimo was surrounded by a “constellation of troubled
individuals” in a world where exchanges of drugs for sex were common. The defendant suggests
that a number of men may have had a motive to murder DiRaimo.
The complete compilation of text messages that the state introduced into evidence is indeed
voluminous. In her decision denying defendant’s motion for a new trial, the trial justice carefully
reviewed the communications between defendant and DiRaimo in the hours immediately before
DiRaimo’s murder. She noted that DiRaimo was furious that defendant had not paid him for drugs,
money that DiRaimo in turn owed to his own drug dealer. The trial justice reviewed the “pages
and pages of text messages from DiRaimo to Gumkowski between 9:07 p.m. on May 10th and
May 11th within the hour of the time of the murder.” The trial justice also referenced an additional
sixty phone calls made by DiRaimo to defendant during this time period.
In addition, the trial justice noted the two incoming calls to DiRaimo’s cell phone that had
pings off nearby cell towers: one at 9:30 p.m. near DiRaimo’s home, and one at 10:45 p.m. near
the home where defendant was living in Hopkinton. The trial justice further noted that the fire at
the location where DiRaimo was found murdered was reported during that time period, at 10:01
p.m. The trial justice did not indicate whether she relied solely or more heavily on either the state’s
exhibit that outlined the text messages and phone calls between Gumkowski and DiRaimo or the
exhibits that listed DiRaimo’s full call and text-message history.
1006 (“The contents of voluminous writings * * * which cannot conveniently be examined in court
may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall
be made available for examination or copying, or both, by other parties at reasonable time and
place. The court may order that they be produced in court.”).
- 14 -
Moreover, both the complete compilation and the excerpted text messages and phone calls
were made available to the trial justice and the jury. In light of the overwhelming circumstantial
evidence that places defendant at DiRaimo’s home prior to and around the time of the murder and
fire, reflects DiRaimo’s increasing anger at defendant in the hours leading up to the murder, and
demonstrates that DiRaimo’s cell phone was eventually retrieved with defendant’s belongings, we
are convinced that neither the trial justice nor the jury were misled by the state’s exhibit outlining
only the text messages between defendant and DiRaimo.
B
Gumkowski also asserts that the verdict was against the weight of the evidence because the
evidence did not support a finding of premeditation.9 In clarifying the meaning of “premeditation”
in State v. Gillespie, 960 A.2d 969 (R.I. 2008), this Court focused on “the duration of the
defendant’s intent to kill” when distinguishing between first- and second-degree murder. Gillespie,
960 A.2d at 977. In that case, this Court stated that “[f]irst-degree murder requires that the
defendant harbored a more-than-momentary intent to kill prior to committing the homicide—in
essence, that he or she acted with premeditation.” Id. In other words, “[t]he premeditation
necessary to establish first-degree murder must have existed for some appreciable length of time
before the killing; it must have existed for more than just a moment.” State v. Amazeen, 526 A.2d
1268, 1271 (R.I. 1987). On the other hand, if the intent only “involves a fleeting intent that is
9
The state responds in its submission to this Court that defendant has waived the issue of
“[i]nsufficient evidence of premeditation[.]” As defendant points out, however, Gumkowski never
argued, and does not now argue, that he is entitled to a new trial based on the insufficiency of the
evidence, but instead filed and argued his motion for a new trial based solely on a weight-of-the-
evidence argument.
- 15 -
contemporaneous with the murder[,]” then the defendant would be found guilty of second-degree
murder. Gillespie, 960 A.2d at 977.
The defendant argues that the evidence did not support a finding of premeditation for three
reasons: (1) there was no evidence of planning; (2) no reasonable juror could infer premeditation
from the text messages between DiRaimo and defendant; and (3) there is no evidence indicating
that the defensive wounds on DiRaimo’s hand would have taken more than a mere moment to
inflict, and thus should have been considered “simultaneous or near-simultaneous injuries[.]”
Evidence of a plan, however, is not a requirement for proving premeditation. See Gillespie, 960
A.2d at 977. Nor did defendant need to have formed the intent to kill DiRaimo during their text
or phone conversations. All that is needed is for defendant to have “harbored a more-than-
momentary intent to kill prior to committing the homicide[.]” Id.The defendant made only a passing reference to premeditation in his oral argument in
support of the motion for a new trial. The trial justice did address this issue, however, in her
decision; therefore we are satisfied that it has been preserved for appellate review. On appeal,
defendant argues that there was no evidence of any planning or preparation, and no evidence that
the perpetrator even brought a weapon to the scene. Nor do the text messages provide evidence of
premeditation or the act of killing itself, according to defendant. We disagree.
The trial justice remarked in her decision: “The evidence was overwhelming that someone
committed first degree murder in the killing of Michael DiRaimo. His throat was slashed almost
from ear to ear. It was particularly malicious.” Indeed, the photographs admitted into evidence
suggest a near decapitation. Doctor Chirkov, whom the trial justice characterized as a credible
witness, testified that DiRaimo had a twelve-inch wound on his neck, the depth of which was
“about [the] entire thickness of the anterior neck[,]” which dissected “the jugular vein on the right
- 16 -
with dissection of the air pipe and dissection of the carotid artery.” Doctor Chirkov further testified
that the autopsy disclosed two puncture wounds on the palm surface of the deceased’s right hand.
He commented that “usually this type of wound [is] classified as a defensive wound where the
person tried to protect himself using his hands.”
We are of the opinion that it was reasonable for the trial justice and jury to conclude that,
as the trial justice noted in her bench decision denying the defendant’s motion for a new trial, this
homicide “was done with more than a moment’s reflection.” The defensive wounds on DiRaimo’s
hand, together with the vicious, forceful nature of the throat slashing, supports a finding of a
murder that was “willful, deliberate, malicious, and premeditated[.]” Section 11-23-1. The trial
justice did not “overlook[] or misconceive[] material evidence[,]” nor was she “otherwise clearly
wrong.” Johnson, 199 A.3d at 1051 (quoting Gomez, 116 A.3d at 223). In fact, she “articulated
adequate grounds for denying the motion,” and thus “her decision is entitled to great weight and
will not be overturned by this Court[.]” Id. (quoting Gomez, 116 A.3d at 223).
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of conviction. The record
in this case may be returned to the Superior Court.
- 17 -
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case State v. Matthew Gumkowski.
No. 2018-42-C.A.
Case Number
(P1/12-1584A)
Date Opinion Filed January 9, 2020
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Netti C. Vogel
For State:
Virginia M. McGinn
Department of Attorney General
Attorney(s) on Appeal
For Defendant:
Kara J. Maguire
Office of the Public Defender
SU‐CMS‐02A (revised June 2016)