Fensterer v. State
| Decision Date | 19 February 1985 |
| Citation | 493 A.2d 959 |
| Parties | William A. FENSTERER, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee. . Submitted: |
| Court | Supreme Court of Delaware |
Upon appeal from Superior Court. Reversed and Remanded.
Harold Schmittinger and Charles Whitehurst of Schmittinger & Rodriguez, P.A., Dover, for defendant below-appellant.
John A. Parkins, Chief of Appeals Div., Timothy J. Donovan, Deputy Atty. Gen., Wilmington, and Gary A. Myers, Deputy Atty. Gen., Georgetown, for plaintiff below-appellee.
Before McNEILLY, HORSEY and CHRISTIE, JJ.
On Tuesday morning, September 29, 1981, the body of Stephanie Ann Swift was found in a blue Camaro in the parking lot of the Milford Plaza Shopping Center. She was the victim of an apparent strangulation. On November 2, 1981, Stephanie's fiance, William A. Fensterer, was arrested and charged with Murder in the First Degree.
The State's case against Fensterer was based upon circumstantial evidence. The jury found Fensterer guilty of the lesser included offense of Murder in the Second Degree. He appeals to this Court for relief from his conviction.
The facts of this case, consisting of events preceding the death of Stephanie Ann Swift, the subsequent investigation of her death, and the proceedings against Fensterer, are voluminous. We summarize the facts in a manner sufficient to give a background to the case, then discuss other factual happenings as we analyze the various issues raised on this appeal.
William A. Fensterer was a twenty-three year old bookkeeper-accountant working at an agriculture products establishment in Milford, Delaware, known as The Reeds, Inc. He began dating Stephanie Ann Swift on a regular basis and by June of 1981, they were living together at 715 Parson Thorne Apartments in Milford. They became engaged to be married. Stephanie was a seventeen year old high school student at Indian River High School. She previously had dropped out of high school, but after meeting Fensterer, she resumed school and was commuting from their Milford apartment to complete her senior year. Stephanie commuted with Fensterer's blue Camaro, and Fensterer used her black Cougar since the Cougar was not in appropriate mechanical condition to be driven the distance to the high school.
Three days before Stephanie's murder, on Friday, September 25, 1981, Fensterer and Stephanie embarked on a weekend trip to Atlantic City. The couple left their pets at Stephanie's parents' home in Possum Point, near Millsboro, Delaware. The couple went on the trip with Mrs. Shellar, Stephanie's grandmother. The relationship between the couple over the weekend is subject to dispute. Mrs. Shellar testified that Fensterer had mentioned a former boyfriend of Stephanie's, John King, and that he was afraid Stephanie was seeing King again. Mrs. Shellar testified that thereafter the relationship between Fensterer and Stephanie became strained. In contrast, Fensterer testified that neither their relationship nor the weekend were strained. It is uncontroverted that after the trip Fensterer and Stephanie returned to their Milford apartment at approximately 6:00 p.m. on Sunday. That night, Fensterer did some laundry and cooked dinner while his fiancee worked on a report for school.
The following day, Monday, September 28, 1981, Stephanie Ann Swift was murdered. The events of that day began with Stephanie and Fensterer having sexual relations that morning before Fensterer went to work at approximately 8:00 a.m. Fensterer, as usual, drove Stephanie's black Cougar, leaving Stephanie his blue Camaro. Fensterer and his co-workers testified that he remained at work until approximately 12:30 p.m. when Stephanie met him at work for lunch. Although, Lee Shepard, the manager of their apartment complex, testified that between 10:00 a.m. and 12:00 noon, he saw the Cougar in the Milford apartment parking lot. Regardless, it is uncontested that at 12:30 p.m. Fensterer and Stephanie went to the bank, then to Pasquales Restaurant for lunch, and then returned Fensterer to work at approximately 1:30 p.m. The couple was seen at Pasquales by witnesses who testified that the couple seemed to be happy and were holding hands upon leaving the restaurant. After returning Fensterer to work, Stephanie went shopping. The last person to see Stephanie alive was a sales lady in The Dollar General Store, around 2:00 that afternoon.
It is uncontested that Fensterer worked until around 4:55 afternoon. Upon leaving work he drove back to their apartment and discovered that Stephanie was not there. He waited until 5:42 p.m. and then called Stephanie's parents, the Swifts, and asked if anyone had seen Stephanie. He looked through Stephanie's dresser drawers and found some old letters from Stephanie's past boyfriends. He then wrote Stephanie a note chastising her for not picking up their pets they left at her parents while on their Atlantic City trip. The note read:
Steph,
If and when you deside [sic] to come home, I think it would be in your best interest to keep your ass in the house. I've waited for an hour and a half for you! I thought you were supposed to pick up the animals at 5:00!! Where the f..k are you! I'm worried to death about you, but also so f.....g p....d off! Were's your respensibility [sic] girl!
I went to pick up the animals.
What happened the remainder of the evening remains in dispute. We do know that sometime that evening Fensterer made a one hour round trip to the Swifts (approximately 56 miles) and picked up the couple's pets and that at 8:13 that evening, sometime after returning from the Swifts, he called the Swifts to see if they had yet to hear from Stephanie.
The State contends that the events of that evening began with Fensterer going to the Swifts' home at around 6:15 or 6:20 p.m.; that he returned to the Milford apartment between 7:00 and 8:13 p.m. Upon returning to the apartment, the State contends that a jealous Fensterer strangled his fiancee with their blue cat leash. The State contends that Fensterer carried Stephanie's body out of the apartment, put her in the Camaro, and abandoned her with the Camaro in the Milford Plaza Shopping Center parking lot.
On the other hand, the defense presents a different version of the events of that Monday evening. Fensterer contends that he did not leave Milford until around 6:30 that night; that he arrived at the Swifts around 7:15 p.m. and that it was around 8:00 p.m. when he returned to the apartment.
Witnesses for the State and defense dispute the time of Stephanie's death. Dr. Judith Tobin, Assistant State Medical Examiner, testified at trial, after giving several different prior conclusions as to the time of Stephanie's death, that it was her then current belief that Stephanie had died between 2:00 p.m. and 10:00 p.m. on September 28, 1981, but more probably between 3:30 p.m. and 8:00 p.m. 1 The defense witness, Dr. Cyril Wecht, a certified forensic pathologist and professor at the University of Pittsburgh School of Medicine, Duquesne University and Pittsburgh School of Dentistry, testified that Stephanie had died around 4:00 p.m. on September 28th.
We do know that the next day, Tuesday, September 29, 1981, Fensterer went to the Milford Police Department to file a missing person's report on Stephanie. At 9:43 a.m., the body of Stephanie Ann Swift was found in the Milford Plaza Shopping Center. Next to the Camaro she had driven, was a brown cord approximately 25 inches in length. There was a black hair on Stephanie's leg that blew away before police could save it. 2 The blue cat leash, the alleged murder weapon, was found in the couple's apartment.
We first address Fensterer's contention which we believe is meritorious and upon which ground we reverse his conviction. Fensterer's contention is that testimony of Special Agent Allen Robillard of the Federal Bureau of Investigation, was inadmissible under the Confrontation Clause of the Sixth Amendment to the United States Constitution. 3
A.
The State sought to prove by circumstantial evidence that the blue cat leash found in the couple's apartment was the murder weapon. The State sought to establish that two hairs found on the leash bore similar characteristics to Stephanie's hair. In addition, the State sought to establish that one of the hairs on the leash was forcibly removed from the victim, thereby implying to the jury that one of the hairs had been pulled out during the strangulation of the victim. The State sought to prove its theories by the testimony of Special Agent Allen Robillard.
Agent Robillard testified that one of the hairs found on the leash had been forcibly removed from the head. He explained that there were three theories upon which a determination could be made that hair had been forcibly removed. The theories were: (1) The presence of the follicular tag on the hair, (2) the presence of an elongated and misshaped root, and (3) the presence of a sheath of skin surrounding the root area. As to which theory he relied upon in coming to his conclusion, the following colloquy transpired at voir dire:
A. Let me step back one step with regard to the presence of the follicular tag. That is one of the ways that I am able to determine hair is forcibly removed. There are two other possible ways.
As to the exact manner in which this particular hair was forcibly removed, I don't know. I have no indication in my notes other than the fact it was forcibly removed.
So to answer your question about the follicular tag, yes, that is possible that it was there.
Q. You have no indication in your notes how you determined that this hair was forcibly removed?
A. Other than the fact it was forcibly removed, that's true. I have no indication. I do have personal knowledge that it was based on one of the three characteristics.
Q. One of the three characteristics. Do you remember which one it was?
Again, in his...
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