State v. Fitzgerald

Annotate this Case
State v. FitzGerald  (94-650); 165 Vt 343; 683 A.2d 10

[Opinion Filed 05-Jul-1996]

[Motion for Reargument Denied 26-Jul-1996]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                            No. 94-650

State of Vermont                             Supreme Court

                                             On Appeal from
    v.                                       District Court of Vermont,
                                             Unit No. 2, Chittenden Circuit

Gregory Stephen FitzGerald                   May Term, 1996

Alden T. Bryan, J.

       Scot Kline, Chittenden County State's Attorney, and Pamela Hall
  Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee

       Robert M. Paolini of Martin & Paolini, Barre, and Gregory FitzGerald,
  pro se, Swanton, for defendant-appellant

PRESENT:  Allen, C.J. (FN1), Gibson, Dooley, Morse and Johnson, JJ.

       MORSE, J.   Defendant appeals from his conviction by jury of
  first-degree murder.  He claims that the court erred in denying his motion
  for mistrial, which was based on the admission of a statement allegedly
  obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436
  (1966).  Defendant also contends that the court erred in failing to voir
  dire the jury about alleged misconduct by one of the alternate jurors. 
  Acting pro se, defendant claims, as well, that the court erred in denying
  his motion for judgment of acquittal, arguing that the State failed to
  establish that the victim was dead on the date the murder allegedly
  occurred.  We affirm.

       On May 20, 1993, defendant was charged with murdering his wife, Amy
  FitzGerald, in Shelburne, Vermont on May 8 of that year.  After his arrest
  in Massachusetts, defendant waived extradition, and was transported to


       Prior to the murder, defendant had lived in Texas while his wife
  attended graduate school at the University of Vermont.  Defendant had told
  his wife that he was attending the University of Texas but, in fact, he had
  been placed on academic dismissal in 1992. Unbeknownst to his wife,
  defendant had been involved with a woman in Texas since 1991.  He had also
  removed his wife's jeep from a  parking lot without her knowledge and
  placed it in storage.  He reported the jeep stolen and recovered the
  insurance proceeds in January of 1993.  The jeep was discovered at the
  storage facility and impounded by the police on May 1, 1993.  Shortly
  thereafter defendant decided to kill his wife.

       At trial the State introduced evidence of defendant's scheme 
  involving multiple rental cars and an elaborate schedule of air travel,
  designed to conceal his involvement in the crime.  The evidence showed that
  defendant had driven with a friend from Texas to Connecticut, flown from
  Connecticut to Texas and back to Connecticut, driven to Vermont, and then
  murdered his wife in her Shelburne condominium on May 8.  Neighbors of the
  victim reported hearing crashing noises and the sound of a woman screaming
  at approximately 4:00 am that day.

       Amy's body was discovered on May 11.  An autopsy revealed that  she
  had died of asphyxiation two to four days before her body was found. 
  Ultimately, several witnesses, including friends and relatives of
  defendant, testified that he had confessed to them. After a ten-day trial
  defendant was convicted of first-degree murder.


       Defendant first contends that the trial court erred in denying his
  motion for a mistrial. This issue revolves around testimony of Vermont
  State Police Detective Sergeant Timothy Bombardier, the officer who
  transported defendant from Massachusetts to Vermont.  Sergeant Bombardier
  testified that at a highway rest area, he and defendant had the following
  exchange about defendant's friend Ricky, who had driven with defendant from 
  Texas to Connecticut before the murder was committed: 

       Q.   Could you tell us what Mr. FitzGerald said to you while at


            this rest stop?
            A.   He asked me where Rick was, or where Ricky was.
            Q.   And what did you respond to Mr. FitzGerald?
            A.   Words to the effect of, he's in Texas, why?
            Q.   And what did he say in response to that?
            A.   That's good, he had nothing to do with it.

  Prior to being transported, defendant had invoked his privilege against
  self-incrimination and had indicated that he wished to speak to an
  attorney.  He claims that Sergeant Bombardier's response, "He's in Texas,
  why?" constituted custodial interrogation in violation of his Miranda

       The State's original offer of proof regarding this testimony did  not
  include "why?". Because the defense did not know of the interrogatory
  nature of the response until it was given at trial in front of the jury,
  this issue was not decided prior to trial. After a conference in chambers,
  the court concluded that the officer's query did not constitute
  interrogation for purposes of  Miranda and denied defendant's motion for a

       The safeguards of Miranda attach whenever a person in custody is
  subjected to interrogation.  See Miranda, 384 U.S.  at 444.  Under Miranda,
  the term "interrogation" encompasses only "words or  actions . . . that the
  police should know are reasonably likely to elicit an incriminating
  response."  Rhode Island v. Innis, 446 U.S. 291, 301 (1980).  Although the
  focus of the inquiry is on the perception of the suspect, the police cannot
  be held accountable for the unforeseeable results of their words and
  actions.  Id. at 302.  Thus, an incriminating statement made in the course
  of casual conversation is not the product of interrogation.  United States
  v. Satterfield, 743 F.2d 827, 849 (11th Cir. 1984).

       Here, defendant initiated a casual conversation with Sergeant
  Bombardier at a highway rest stop.  Officer Bombardier responded to
  defendant's question about Ricky's whereabouts with a common figure of
  speech.  As the trial court found, the "why?" did not, under the totality
  of the circumstances, constitute an invitation for defendant to incriminate
  himself.  There is no evidence that Sergeant Bombardier knew or should have
  known that his words were likely to


  elicit an incriminating response.  The court correctly concluded that the
  exchange between defendant and Sergeant Bombardier did not constitute

       The case defendant relies upon, People v. Olivera, 647 N.E.2d 926
  (Ill. 1995), is inapposite.  In Olivera, a suspect was included in a police
  lineup, after which everyone, except the suspect and a police detective,
  was removed from the room.  The suspect, who earlier had invoked his
  Miranda rights, asked what had happened. The detective responded that the
  suspect had been positively identified.  Although the detective reminded
  the defendant of his rights, the defendant went on to make an incriminating

       Thus, in Olivera, the suspect was confronted with substantive evidence
  of guilt.  The Illinois Supreme Court held that the detective should not
  have responded to the question except to remind the suspect of his rights,
  because revealing that the suspect had been positively identified was
  likely to elicit further statements. Id. at 930.

       Here, in contrast, defendant was not confronted with substantive
  evidence of guilt. Defendant initiated a casual conversation with Sergeant
  Bombardier, who tagged a "why" onto his answer to defendant's apparently
  innocuous question.  Nothing in the  circumstances or content of the
  exchange could be deemed likely to elicit an incriminating statement. 
  There was no violation of defendant's Miranda rights, and the motion for a
  mistrial was  properly denied. See State v. Jones, 160 Vt. 440, 449-50, 631 A.2d 840, 847 (1993) (court's ruling on motion for mistrial will  be upheld
  unless discretion was totally withheld or exercised on untenable grounds).     
  Furthermore, even if defendant's  statement had been obtained in violation
  of Miranda, its admission would not mandate reversal.  Other witnesses,
  including defendant's friend Denise O'Brien and his cousin Robert Saville,
  testified that defendant had confessed to murdering Amy, and had made
  statements to the effect that the man he had travelled with was innocent. 
  Thus, defendant's statement, "That's good, he had  nothing to do with it,"
  if construed to mean that defendant had  personal knowledge of the crime
  and that his companion was innocent, is  cumulative.  We conclude that
  admission of the statement, even if constitutionally 


  invalid, was harmless beyond a reasonable doubt.  See State v. Streich, __
  Vt. __, __, 658 A.2d 38, 49 (1995) (error of constitutional magnitude is
  harmless where it is clear beyond reasonable doubt that jury would have
  returned guilty verdict regardless of error).


       Next defendant claims that the trial court erred in failing to examine
  the jurors individually after allegations of misconduct by an alternate
  came to light.  On April 19, 1994, after the court announced that the jury
  had reached a verdict, the defense revealed that it had received notice
  from the Public Defender's  Office of potential juror misconduct.   Robert
  Backus, a public defender, told the court that one of his clients claimed
  that an alternate juror had discussed the case with neighbors.  Backus, who
  was not able to verify the allegations, stated that his client wished to
  remain anonymous.

       The court proposed that it question the alternate to ascertain whether
  there was any substance to the allegations.  The court stated that the
  parties would have the opportunity to ask questions during the examination. 
  Defendant was present when the court made this suggestion. The court went
  on to say that if the allegations of misconduct were substantiated during
  the examination, it would question the jury about whether any conversations
  took place between the alternate and the panel during the trial.

       The alternate was questioned under oath by the court.  She stated that
  she had mentioned to both her husband and her mother that she "wish[ed]
  [the trial] would get over with."  She denied discussing the substance of
  the trial with anyone, but conceded that she had told another juror that
  she was "glad [she] didn't  have to vote either way."

       The State did not question her, and defense counsel asked only if she
  had told anyone that she believed defendant was guilty.  She stated that
  she had not.  The alternate was excused. The parties then  agreed that the
  panel could be questioned about the situation in a post-verdict proceeding.

       Subsequently, defendant declined the court's invitation to  question
  the jury.  Instead, the 


  defense stated its preference that the court say nothing about the
  misconduct issue at that time. Defense counsel also remarked that the
  alternate's comment  to the other panel member "is not something that I can
  say would  probably have affected the outcome."

       After the verdict was announced and the jury polled, the court asked
  counsel if anything further needed to be done before the panel was excused. 
  The defense replied that, other than instructing the jury not to discuss
  the case, nothing needed to be done.  The court instructed the jury as the
  defense requested and the panel was excused.

       On May 16, 1994, defendant filed a motion for a new trial based on
  juror misconduct. In the motion defendant requested a hearing to enable him
  to examine Robert Backus and Jerry Schwartz, also of the Public Defender's
  Office, about the statements made by  Backus's client regarding the
  alternate juror.  Defendant did not  request that the jurors be questioned. 
  At the hearing, defendant offered no new evidence, but simply contended
  that a new trial should be granted based on juror misconduct, and that
  Backus should be ordered to reveal the identity of his client and the
  substance of the statements made about the alternate.

       After reviewing the transcript of the April 19 proceedings, the trial
  court stated that there was no evidence that the alternate had discussed
  the outcome of the case with other panel members. The court also noted
  that, when questioned, the jurors indicated that no extraneous information
  about the case had come to their attention.  The alternate had been
  questioned under oath and the court remarked that it found her testimony
  credible. Emphasizing that the defense could have investigated the matter
  on its own, the court denied defendant's request for an order compelling
  Backus to reveal the identity of his client.

       On August 2 the court orally denied the motion for a new trial. The
  court found that there was no opportunity for taint during deliberations
  because the alternate was not present during that phase of trial.  The
  court noted, again, that the jurors had indicated that no extraneous
  information had come to their attention, and concluded that the
  deliberations were intact, and untainted.


       Defendant's argument, that the court erred by failing to examine  the
  jurors individually, is made for the first time on appeal. As the record
  indicates, defendant never asked the court to examine the jurors either
  prior to dismissing them, or in his motion for a new trial. Arguably this
  issue is not preserved. Where defendant does not preserve an issue for
  appeal, we will not review it sua sponte unless we find plain error.  State
  v. DuFord, __ Vt. __, __, 660 A.2d 736, 737 (1995).

       Relying on State v. Prime, 137 Vt. 340, 403 A.2d 270, (1979),
  defendant couches his claim in constitutional terms, arguing that "[t]he
  right to an unbiased jury is a personal right which may be waived only by
  the defendant and only with a knowing and intelligent waiver." Id. at 343,
  403 A.2d  at 272.  Based on  this holding, defendant contends that his
  attorney's decision not  to question the jury does not bind him.  He argues
  that the circumstances of this case were capable of prejudicing the jury
  deliberations, and that, because the court did not obtain his personal
  waiver, reversal is mandated.  State. v. Woodard, 134 Vt. 154, 158, 353 A.2d 321, 323-24 (1976).

       We first note that Prime is readily distinguishable from the instant
  case.  In Prime, a petition to place the state's  attorney's name on a
  ballot had circulated among the jury.  After receiving notice of the
  problem, the court offered defense counsel the opportunity to voir dire the
  jurors or to discharge them and begin anew.  Defendant was not present
  during the incident and was never informed about the petition.
  Nevertheless, defense counsel waived any claim of bias.  Here, in contrast,
  defendant was present during the entire discussion, and had ample
  opportunity to discuss the matter with counsel and to request voir dire if
  he so desired.

       Woodard is also inapposite.  In Woodard a juror overheard a telephone
  call during which the defendant stated that he needed an alibi.  The juror
  did not disclose what he had heard to the court for several hours, during
  which time he continued to hear testimony and remained seated with the
  other jurors.  The court did not ask the juror whether he had shared what
  he had heard, but simply excused him.  Thus, in Woodard a juror who was
  exposed to an influential piece of 


  extraneous information subsequently mingled with other jurors prior to
  deliberations, and the court did nothing to ascertain whether the
  information had been shared. Under those circumstances concerns about jury
  taint would arise. In the instant case, however, there is no evidence to
  warrant an inference that any juror was exposed to extraneous information.

       Moreover, Prime and Woodard were subsequently clarified by State v.
  Onorato, 142 Vt. 99, 453 A.2d 393 (1982), in which this Court explained
  that application of the Prime/Woodard rule is limited to situations

     where the trial court, upon discovering the possibility of jury
     prejudice, fails to voir dire the jury to determine if in fact any
     prejudice had been created.  Absent this examination, the trial
     judge lacks a basis for determining if any prejudice exists, and
     consequently this Court has no record from which it can determine
     if the jury was fair and unbiased.

  Id. at 106, 453 A.2d  at 396.

       Here, the trial court examined the juror suspected of misconduct under
  oath.  She denied any wrongdoing, and the court noted that it found her
  testimony credible.   The court also asked the jurors if any extraneous
  information had come to their attention, and they indicated that it had
  not.  In light of this information, and the fact that the juror in question
  was an alternate who did not participate in deliberations, the court
  concluded that the deliberations were untainted. Thus, the court did
  establish a basis for reviewing whether prejudice had been created, and
  concluded that it had not.  We agree.  The holdings of Prime and Woodard
  are inapplicable here, and the issue of personal waiver does not arise.

       Defendant has made no showing of actual jury bias, and his claim that
  the court had a duty to conduct individual voir dire is without merit.  See
  id. at 105, 107, 453 A.2d  at 396, 397. We find no error in the record
  before us.


       Next, acting pro se, defendant claims that the court erred in denying
  his motion for judgment of acquittal, arguing that the State "failed to
  prove beyond a reasonable doubt, the 


  corpus  delicti."  Boiled down, defendant's argument is that the State 
  failed to prove that the victim was dead on the day the murder allegedly
  occurred.  He contends that evidence introduced by the State regarding a
  pregnant friend of Amy's rebutted the inference  that the screaming and
  crashing noises that neighbors heard on May 8 were the sounds of Amy being
  murdered.  Instead, he claims, the screaming woman could have been Amy's
  friend going into labor.

       At common law, corpus delicti means the body of the crime.  State v.
  Goyet, 120 Vt. 12, 22, 132 A.2d 623, 631 (1957).  In the case of homicide
  it is composed of two elements: (1) the death of a person (2) produced
  through criminal agency.  Id.

       The purpose of the corpus delicti rule is to foreclose the possibility
  of conviction based on false confession where, in fact, no crime has been
  committed.  State v. Weller, 162 Vt. 79, 83, 644 A.2d 839, 843 (1994).  The
  rule mandates that where the State's case is based on a confession, the
  corpus delicti must be  corroborated by independent evidence.   Id. at 82, 
  644 A.2d  at 841.  The corroborating evidence need not independently prove
  commission of the crime beyond a reasonable doubt, however; even slight
  corroboration may be sufficient.  Id. Determination of whether
  corroboration is adequate is the province of the court. Id. at 83, 644 A.2d 
  at 842.

       In this case, the discovery of Amy's asphyxiated body alone 
  established both elements of the corpus delicti.  Contrary to defendant's
  argument, the corpus delicti rule does not require the State to produce
  evidence of the time of death.  Instead, here, as in all criminal cases,
  defendant was protected by instructions that directed the jury to determine
  whether the State had proved the elements of the crime beyond a reasonable
  doubt.  It was for the jurors to decide whether the State had met its
  burden in establishing the date and circumstances of Amy's  death, and they
  concluded that it had.  The evidence against defendant was strongly
  probative and abundant.  The motion for judgment of acquittal was properly
  denied.  See State v. Tonzola, 159 Vt. 491, 496, 621 A.2d 243, 245 (1993)
  (in reviewing denial of motion for judgment of acquittal 


  we view evidence in light most favorable to State and uphold ruling if
  evidence fairly and reasonably could convince trier of fact of defendant's


                              FOR THE COURT:

                              Associate Justice


FN1.  Chief Justice Allen sat for oral argument but did not participate in the 

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