In re Fitzgerald

• Decision Date: 28 February 2020
• Docket Number: No. 15-437,15-437
• Citation: 229 A.3d 446
• Parties: IN RE Gregory S. FITZGERALD
• Court: Vermont Supreme Court

229 A.3d 446

IN RE Gregory S. FITZGERALD

No. 15-437

Supreme Court of Vermont.

September Term, 2019

February 28, 2020

Reargument Denied March 31, 2020

Matthew F. Valerio, Defender General, and Kelly Green and Annie Manhardt, Prisoners' Rights Office, Montpelier, and Gregory S. FitzGerald, Pro Se, Baldwin, Michigan, for Petitioner-Appellant.

David Tartter, Deputy State's Attorney, Montpelier, for Respondent-Appellee.

PRESENT: Eaton and Carroll, JJ., and Dooley, J. (Ret.), and DiMauro and Manley, Supr. JJ. (Ret.), Specially Assigned

CARROLL, J.

¶ 1. Petitioner Gregory FitzGerald¹ appeals from two superior court decisions entering judgment for the State on his petition for post-conviction relief (PCR). On appeal, petitioner argues that he was prejudiced by the cumulative effect of errors trial counsel made during his 1994 criminal trial. He also alleges that the State knowingly presented false evidence at his trial. We affirm.

I. Criminal Conviction

A. Factual Background

¶ 2. Our decision relies heavily upon the evidence produced at trial. The testimony demonstrated the following. In 1992, petitioner was placed on academic dismissal at the University of Texas. He continued to reside in Texas, and, for over a year, misled his wife—Amy FitzGerald, who was living in Vermont—into believing that he was still enrolled in school. In fact, Amy was under the impression that petitioner would graduate in the spring of 1993 and had plans to fly to Texas for the occasion. In January 1993, petitioner falsely reported that Amy's jeep had been stolen and collected about $4000 in insurance proceeds. During his time in Texas, petitioner also maintained a secret relationship with another woman.

¶ 3. In April 1993, petitioner enlisted Denise O'Brien—a friend of his from Texas—to help in his plan to murder Amy. O'Brien testified that petitioner asked her to drive to Connecticut, pick him up from the airport, drop him off at Amy's house in Vermont, and then "return to pick him up at a given time." O'Brien further testified that petitioner told her that he planned to hit Amy in the head with a baseball bat and "make it look like it was a bathing accident" by spreading "cat litter around the bathroom floor to make it seem like she had slipped and fallen while trying to get into the bath."

¶ 4. On May 1, 1993, petitioner learned that the San Antonio Police Department had found Amy's jeep at a storage unit registered in his name and impounded the vehicle. On the morning of May 2, O'Brien received a phone call from petitioner saying that he had to leave right away. As we explained on direct appeal, petitioner then engaged in a "scheme involving multiple rental cars and an elaborate schedule of air travel, designed to conceal his involvement in the crime." State v. FitzGerald, 165 Vt. 343, 344, 683 A.2d 10, 12 (1996). Accordingly, on the afternoon of May 2, petitioner asked his landlord to drop him off at Alamo Car Rental in San Antonio, Texas, telling his landlord that he needed to get work done on his pickup truck. Petitioner proceeded to rent a white car.

¶ 5. On May 4, a North Carolina State Trooper pulled over the same white car for speeding, and identified petitioner as the driver. The trooper testified that petitioner said he was headed to Vermont with his friend Richard Rodriguez to visit his wife. After the state trooper noticed a court document in petitioner's car indicating that Rodriguez was arrested on May 3 in New Orleans, petitioner explained that Rodriguez had spent the previous night in New Orleans while he flew back to Texas to pick up a check he had forgotten.

¶ 6. On May 5, petitioner purchased an airline ticket to Austin, Texas at Bradley International Airport in Hartford, Connecticut. The next day, petitioner was seen in Texas driving a small U-Haul truck. Meanwhile, an employee at Bradley International Airport spotted petitioner's white rental car in a short-term parking lot. The employee was directed to leave a note on the car telling someone to "go back and check in at the Budgetel Hotel" because "[y]our friend's plane has had mechanical problems and he won't be in until 11:30 at night." Rodriguez checked into the Budgetel Hotel on May 6 and left the next morning. Records indicate that the white rental car left the short-term parking lot at Bradley International Airport sometime on May 7. In the early evening of May 7, Rodriguez checked into a Burlington hotel room with another male.

¶ 7. During the early morning hours of May 8, Amy's neighbors were awakened by the sound of a woman screaming. Amy's body was discovered on May 11, and an autopsy indicated that she had been asphyxiated two to four days earlier. That same morning, O'Brien saw petitioner in Texas. She testified that petitioner had a scratch on his arm and told her that "Amy was dead, and that everything went okay but it wasn't as easy as he thought it would be. She fought him all the way." After being told later that day that there had been an incident in Vermont with Amy, petitioner told his landlord that he was going to catch the first flight out of Texas he could. Although there were numerous flights available from Texas to Vermont, petitioner called his landlord that evening and said he could not find a flight. Petitioner then drove from Texas to Massachusetts in a different car he rented from Alamo Rental on May 11.

¶ 8. On May 13, Elaine FitzGerald, petitioner's sister-in-law, saw petitioner at her home in Massachusetts. She noticed that one of his hands was bleeding and the other one had several scratches. On May 14, petitioner drove from Massachusetts to Vermont with Amy's parents. Upon arriving in Vermont, he was interviewed at the Shelburne Police Station by Detective Andi Higbee of the Burlington Police Department. Detective Higbee noticed that petitioner had several injuries: a cut on his right middle finger, which was starting to scab; a circular abrasion on the palm of his right hand; and a light vertical scratch on his right cheek. Petitioner told Detective Higbee that he was enrolled in school at the University of Texas, even though he had been placed on academic dismissal over a year earlier.

¶ 9. Detective Higbee interviewed petitioner again the next day. Petitioner told the detective that after he learned about the incident involving Amy on May 11, he decided to go to Vermont but was unable to find a flight until May 13. The record indicates, however, that there were several flights available from Texas to Vermont on May 11. Petitioner also told Detective Higbee that on May 7 he went to a garage where his pickup truck was being repaired and then spent several hours at a bar where "nobody recognized him." On May 16, Detective Higbee spoke with petitioner for a final time at the Williston police barracks. During this last interview, petitioner told Detective Higbee that he went to Louisiana to bail Rodriguez out of jail on May 7.

¶ 10. Petitioner returned to Massachusetts on May 16 for Amy's funeral, which was on May 18. Robert Saville, petitioner's cousin, testified that petitioner confessed to him the day after the funeral. He testified that petitioner offered him $15,000 to drive to Vermont and call the police to tell them they had the wrong suspect. Petitioner told Saville to tell the police that Amy was killed in the bedroom and then dragged into the bathroom, which was "something about the murder that no one else [would] know[ ]." Petitioner's brother Leo FitzGerald testified that petitioner told him on the early morning hours of May 20 that he went up to Amy's apartment, "[t]he door was open, I went inside, [and] she was already dead." That same day, petitioner was charged with the first-degree murder of Amy FitzGerald.

B. Trial

¶ 11. As relevant for the purposes of this appeal, the following events occurred over the course of a fourteen-day trial.

¶ 12. During jury draw, petitioner's counsel explained that petitioner himself would decide whether to testify at trial. He engaged in the following refrain on three occasions:

The other question which I always ask is—because I don't know the answer—is whether or not my client takes the stand. I start with the presumption that he will not take the stand in every case. Time may come when he will or not. That's a decision that he makes, albeit, I'm sure he'll elicit my advice in the matter and there's a myriad [sic] why a defendant will or will not take the stand.

On each occasion, trial counsel asked the jury if they would hold it against his client if he decided not to testify. Trial counsel also repeatedly emphasized during jury draw that it was the State's burden to prove petitioner's guilt beyond a reasonable doubt. During opening statements, trial counsel argued that the State could not meet this burden, emphasizing that there was "not a single physical fact of any sort that tie[d] [his] client to th[e] homicide." Trial counsel conceded, however, that his client was not "the most honorable of people. I don't promise you that you'll go away feeling that he is a worthwhile, good, positive person you want as a best friend. There are a lot of things wrong in this case, a lot of things that will be revealed in this case ...."

¶ 13. The State solicited testimony from O'Brien, Federal Bureau of Investigation Agent Wayne Oakes, Detective Andi Higbee, and petitioner's brother Leo. First, as detailed above, supra, ¶¶ 3, 7, O'Brien testified that petitioner (1) enlisted her to assist with murdering Amy, (2) described key details about how he planned to commit the murder, including his plan to use kitty litter, and (3) confessed to her that he killed Amy.

¶ 14. Next, Agent Oakes testified that he was a certified specialist in the field of microscopic hair comparison. Before trial counsel objected, the agent began to explain microscopic hair analysis by analogy to the human face:

Most people's faces have two eyes, two ears, a nose and a mouth. Most hairs have these characteristics ... but you and I can recognize pe

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