Fitzgerald v. State, 5030

• Court: United States State Supreme Court of Wyoming
• Citation: 601 P.2d 1015
• Docket Number: No. 5030,5030
• Parties: William John FITZGERALD, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Decision Date: 30 October 1979

Page 1015

601 P.2d 1015

William John FITZGERALD, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 5030.

Supreme Court of Wyoming.

Oct. 30, 1979.

Rehearing Denied Nov. 19, 1979.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Jay D. Schaefer, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division; Richard H. Honaker, Asst. Atty. Gen., and Sandra Dunn, Legal Intern, Cheyenne, for appellee.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. ^*

ROSE, Justice.

Appellant, William John Fitzgerald, appeals his second-degree murder conviction on three grounds: (1) Inculpatory statements made to the police (in which appellant admitted attacking the victim) were the fruit of an illegal arrest; (2) the appellant was denied a fair trial when the prosecutor made indirect use of a knife which the trial judge ordered suppressed on Fourth Amendment grounds; and (3) the State unfairly surprised the defense with a major prosecution witness. We will affirm.

We will discuss the two Fourth Amendment issues first. The victim's body was found by hunters on the morning of September 22, 1977, in the Lake DeSmet region north of Buffalo, Wyoming. The victim had been cut on the legs, chest and throat. In the course of their investigation, police learned that the victim had last been seen leaving the 21 Club in Buffalo with two young men who were not residents of Buffalo. Composite drawings were made from which police were able to identify the appellant. On September 27, police approached appellant in a restaurant. The State concedes that the police suspicions at that time did not rise to the level of probable cause.

The police asked Fitzgerald if he would talk with them at the Buffalo police station, whereupon he agreed to do this and proceeded with the police to their cars. At the police car, the police asked for permission to search him before allowing him to enter. Appellant volunteered that he had a pocket knife in his pants pocket, whereupon the police confiscated the knife. The group then proceeded to the Buffalo police station. Fitzgerald was there given adequate Miranda warnings, after which he made incriminating statements which the police videotaped. In essence, Fitzgerald told the police that the victim had invited him for a car ride; that they then stopped and appellant began to urinate; that the victim grabbed Fitzgerald's penis, taking Fitzgerald by surprise; and that Fitzgerald, in panic, beat on the victim and then returned to town alone.

Before trial, Fitzgerald's attorney moved to suppress both the knife and the videotaped statements. The trial judge granted the motion to suppress the knife. In his written motion to suppress the statements, and in his oral arguments, Fitzgerald's counsel offered at least three grounds for suppressing the statements: (1) The statements were given involuntarily; (2) the statements were the result of an illegal search; and (3) the statements were the result of an illegal arrest. The trial judge denied the motion to suppress the statements; and, on appeal, Fitzgerald asserts only that the statements were the fruit of an illegal arrest.

Fitzgerald briefed his appeal before publication of the United States Supreme Court decision in Dunaway v. New York, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), in which it was held that a person may not be detained for custodial interrogation without probable cause. However, despite the reservation of that question by the United States Supreme Court in Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969), we are of the opinion that the Dunaway holding was completely foreshadowed by Wyoming law. In Rodarte v. City of Riverton, Wyo., 552 P.2d 1245 (1976), we adopted a definition of arrest which unambiguously includes the situation in which a person is involuntarily taken into custody for questioning. Under both Rodarte (as supplemented by general Fourth Amendment case law, e. g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)) and Dunaway, the law is clear: If Fitzgerald was taken involuntarily to the Buffalo police station then he had a right, under the facts of this case, to have the statements suppressed despite adequate Miranda warnings. The issue which we must consider in this appeal is whether the record supports a finding that Fitzgerald went voluntarily to the police station because, in order for the court to have refused to suppress the questioned evidence, it must be presumed that it found that, according to the facts of record, the defendant left the restaurant with the police of his own free will.

In considering the record, several observations are in order: (1) Fitzgerald chose not to testify at the suppression hearing; accordingly, the only evidence we have of the transaction is police testimony. (2) The issue of whether or not Fitzgerald went voluntarily to the police station may be resolved by a preponderance-of-the-evidence standard. Lego v. Twomey, 404 U.S. 477, 486, 92 S.Ct. 619, 625, 30 L.Ed.2d 618 (1972). See, also, Lonquest v. State, Wyo., 495 P.2d 575 (1972). (3) Under our rules of appellate procedure, we view the evidence most favorably to the party who prevailed below. As we said in Repkie v. State, Wyo., 583 P.2d 1272, 1273-1274 (1978):

"An appellate court, in assessing evidence as to its sufficiency, is bound by the following rule:

" 'In passing upon the sufficiency of the evidence to support a verdict of guilty, an appellate court will not weigh conflicting evidence nor consider the credibility of witnesses; and it must view the evidence in a light most favorable to the prosecution and determine questions of law as to whether there is substantial evidence, direct or circumstantial, or both, which, with the reasonable inferences that may be drawn therefrom, will sustain the verdict.' Harris v. State, Wyo., 487 P.2d 800, 801, citing United States v. Weiss, 10 Cir., 431 F.2d 1402, 1407; and Stock v. Roebling, Wyo., 459 P.2d 780, 784."

The police testimony is that four police officers approached Fitzgerald in the dining area of the restaurant and explained that they were investigating a local homicide and wished to asked Fitzgerald and his companion a few questions. Fitzgerald said that he had ordered dinner and asked if it would be all right if they ate dinner first. One of the officers replied that he (the policeman) preferred that he (Fitzgerald) come with him down to the police station and that the police would buy his dinner for him later if he wished. The police would not have forced Fitzgerald to accompany them had he refused. ¹ Both Fitzgerald and his companion were very cooperative and agreed to accompany the police to the police station. In response to Fitzgerald's questions, he was told that he was not under arrest. ²

The trial court could reasonably conclude from the above testimony and surrounding evidentiary circumstances that the defendant left the restaurant voluntarily. When Fitzgerald was approached by the police, he learned that he was under some suspicion. It is, for this court, and we believe was for the trial court, reasonable to infer that a paramount concern of Fitzgerald at that time was to persuade the police of his innocence. True, Fitzgerald could have asserted his rights and told the police not to bother him unless they were prepared to legally arrest him, and such insistence upon his rights could not have been used in evidence against him at trial. E. g., Irvin v. State, Wyo., 560 P.2d 372, 372-373 (1977). In hindsight, this might well have been the better legal strategy. It is even possible to speculate that Fitzgerald may not have known that he had a choice. These possibilities notwithstanding, it is also reasonable to assume that Fitzgerald was aware of his choice and deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence.

We find no reason in the record to disturb the trial judge's ruling on the motion to suppress the statements. In other words, we find that the record on the issue of whether or not Fitzgerald left the restaurant voluntarily supports the trial court's suppression ruling, which had the effect of holding that he did go voluntarily. Nor do we read the majority opinion in Dunaway, supra, to hold that under the facts of this case a finding of involuntariness is required as a matter of law.

We find support for our conclusion here in a recent post-Dunaway decision of the Supreme Court of Tennessee, Childs v. State, Tenn., 584 S.W.2d 783 (1979).

In Childs, the police were investigating a homicide and telephoned the defendant and requested that he visit the police station for questioning. Childs did so but found when he arrived that the investigating officers were not there. Subsequently, the police approached Childs at one of his friend's apartment and asked him to talk to them in their car. Childs agreed. In talking to the police, Childs admitted using a different name. The evidence was that he willingly accompanied officers to his apartment where he produced a driver's license issued in that name. The record goes on to show that Childs then agreed to and did accompany the police to the station house. When the police confronted Childs at the residence of his friend, Childs was merely a potential homicide suspect. Probable cause to arrest Childs did not develop until he was in the station house, at which time he was formally arrested. Childs, like Fitzgerald, did not testify as to the voluntariness of his trip to the police station. In Childs the involved police officers testified that the defendant had talked with them voluntarily prior to his arrest and had gone voluntarily with them to the police station. The ...