In re Fitzgerald

• Decision Date: 13 November 2007
• Docket Number: No. 05-347.,05-347.
• Citation: 945 A.2d 825,2007 VT 51
• Court: Vermont Supreme Court
• Parties: In re Gregory FITZGERALD.

945 A.2d 825

2007 VT 51

In re Gregory FITZGERALD.

No. 05-347.

Supreme Court of Vermont.

November 13, 2007.

Present: REIBER, C.J., and DOOLEY, JOHNSON, SKOGLUND, and BURGESS, JJ.

ENTRY ORDER

¶ 1. Petitioner Gregory FitzGerald appeals from a superior court order granting the State's motion for summary judgment and dismissing his petition for post-conviction relief from a 1994 conviction of first-degree murder. Petitioner contends the court erred by (1) shifting the burden of proof from the State to the petitioner on his claims of prosecutorial misconduct and ineffective assistance of counsel and (2) declining to resentence petitioner in accordance with the United States Supreme Court ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Petitioner raises several additional claims in a separate pro se brief. We reverse the court's ruling on several of the ineffective assistance of counsel claims, and affirm in all other respects.

¶ 2. Following a ten-day trial, petitioner was convicted of the first-degree murder of his wife and sentenced to life imprisonment without parole. We affirmed the conviction in State v. FitzGerald, 165 Vt. 343, 683 A.2d 10 (1996), which sets forth the facts underlying the crime. In brief, the record evidence showed that, in 1993, defendant was living in Texas while his wife attended graduate school in Vermont. Defendant had misled his wife to believe that he was enrolled at the University of Texas when, in fact, he had been dismissed. He had also maintained a secret relationship with another woman for several years. On the morning of May 8, 1993, neighbors heard crashing noises and the sound of a woman screaming coming from the condominium of petitioner's wife in Shelburne. Her body was discovered the following day; an autopsy revealed that she had been asphyxiated. Evidence showed that defendant had engaged in an elaborate scheme during the week preceding the murder to conceal his involvement in the crime, including driving with a friend from Texas to Connecticut and then immediately taking a round trip flight to Texas and back, and finally driving from Connecticut to Vermont the evening before the murder. A friend of petitioner and a cousin both testified as to statements that petitioner had made admitting to the murder and revealing details of the crime.

¶ 3. Petitioner raised three claims on direct appeal, asserting that the trial court erred in admitting certain statements allegedly obtained in denial of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), failing to voir dire the jury about the alleged misconduct of an alternate juror, and (as asserted in a separate pro se brief) denying a motion for judgment of acquittal based on the State's alleged failure to establish that the victim had died on the date alleged. We affirmed the judgment, rejecting each of the claims. FitzGerald, 165 Vt. at 346-50, 683 A.2d at 13-16. Thereafter, petitioner filed a pro se petition for post-conviction relief, which he subsequently twice amended. Appointed counsel also filed an original and amended petition on petitioner's behalf.

¶ 4. The petitions together raised no less than thirty separate claims divided into four general categories: prosecutorial misconduct, consisting of essentially five separate claims; ineffective assistance of trial counsel, comprising eighteen instances of alleged error; ineffective assistance of appellate counsel, with six claims; and sentencing error, based on the United States Supreme Court decision in Apprendi. In June 2003, the State moved for summary judgment. In its motion, the State denied error as to each claim and also asserted that any error could not have affected the outcome of the case, citing in many instances to the trial record to support its arguments. Petitioner filed a pro se opposition and an opposition by counsel, to which the State responded, again citing to the trial record.

¶ 5. In April 2005, the court issued a written opinion, granting the State's motion. The lengthy decision addressed each of petitioner's claims individually, concluding in each instance that the record evidence did not support the contention or that any error could not have prejudiced petitioner. The court denied a subsequent pro se motion for relief from judgment. This appeal followed.

¶ 6. With two limited exceptions discussed below, petitioner does not challenge the trial court's disposition of any specific claim. Rather, petitioner broadly contends the court erred in granting the motion for summary judgment because, as he argues, the State's "assertions merely deny the allegations of the petition without provision of, and citation to, supporting materials." Accordingly, he maintains that the court improperly shifted the burden of proof from the State to petitioner. See Pierce v. Riggs, 149 Vt. 136, 138, 540 A.2d 655, 656 (1987) (the party moving for summary judgment must meet its initial burden of showing an absence of disputed material facts before the opposing party is required to come forward with opposing affidavits or other evidence which raises a dispute as to the facts at issue). Petitioner's argument, however, is based on a false predicate; the State's motion was supported by documentary evidence, consisting of specific references to the trial record. As to certain claims, the State relied on the record to demonstrate that the allegations were factually unsupported. For example, petitioner alleged that the prosecutor had knowingly made false representations to the court in a motion in limine seeking the introduction of potential hearsay statements by defendant's friend and traveling companion, Richard Rodriguez. In its motion, the State asserted that any alleged misrepresentations were harmless because no hearsay statements by Rodriguez were introduced. Petitioner opposed the motion, citing to other portions of the trial record, but the court found nothing in the record to support the claim.

¶ 7. In other instances, the State cited the trial record to show that the alleged error could not have prejudiced petitioner. For example, petitioner claimed that the prosecutor engaged in misconduct by failing to disclose all of the police investigators' field notes before trial. The State argued, and the court below found, that any error was harmless in light of the record showing that petitioner's counsel was provided the notes during trial and offered an opportunity for a continuance, which counsel declined. Petitioner also claimed prejudicial error resulting from the State's belated, post-trial disclosure of some detectives' notes, in particular a note indicating that petitioner left a message on the victim's answering machine on the morning of May 7, 1993, the day before the murder, suggesting—according to petitioner—that he was in Texas at the time. The State argued, and the court found, that any error was harmless in light of several facts evident from the record. First, petitioner's presence in Texas on the morning of May 7 was not particularly exculpatory, since the State's evidence indicated that petitioner flew from Texas to Connecticut that day. Second, petitioner had been provided a transcript of the conversation prior to trial. Finally, petitioner presumably knew the date and content of the telephone conversation in any event.

¶ 8. Courts routinely rely on the trial record to conclude that allegations raised in a post-conviction relief proceeding either lack a factual basis or could not have affected the outcome. See, e.g., State v. Yoh, 2006 VT 49A, ¶¶ 28-30, 180 Vt. 317, 910 A.2d 853 (rejecting allegations that defense counsel rendered ineffective assistance in failing to file a motion to suppress or request a proper instruction where the trial record showed no reasonable probability of a different result absent the omissions); In re Koveos, 2005 VT 28, ¶ 7, 178 Vt. 485, 872 A.2d 321 (mem.) (upholding trial court's conclusion that although counsel was ineffective in failing to exclude a deposition, "exclusion of the videotaped deposition would not have affected the outcome of the trial, given the other evidence supporting the jury's verdict"); In re Hatten, 156 Vt. 374, 379, 592 A.2d 896, 899 (1991) (holding that our "review of the record puts us squarely in agreement with the post-conviction relief court's conclusion that the result of the sentencing would not have been any different if counsel had presented" certain evidence); In re Rebideau, 141 Vt. 254, 260, 448 A.2d 144, 148 (1982) (concluding that even if petitioner's claim of prosecutorial misconduct were true, the result would not have been different given that the evidence of guilt at trial "was overwhelming and uncontradicted"). Therefore, we find no merit to petitioner's general assertion that the State failed to adduce evidence to support its motion for summary judgment or that the court improperly shifted the burden of proof to petitioner.

¶ 9. Apart from asserting, incorrectly, that the State adduced no evidence to support the motion, petitioner's only specific complaint with respect to the court's handling of the prosecutorial misconduct claims is that the State improperly failed to file an affidavit from the trial prosecutor denying the use of false evidence or the intentional withholding of exculpatory evidence. A motion for summary judgment need not, however, be accompanied by affidavits where, as here, other documentary evidence is adduced to support the motion. V.R.C.P. 56(a) (party may "move with or without supporting affidavits for a summary judgment"). Furthermore, the court ruled that any error based on the prosecutor's alleged misrepresentations or belated disclosures could not have affected the outcome of the trial. Thus, the absence of an affidavit denying misconduct was immaterial to the ruling.

¶ 10. As for the eighteen separate claims of ineffective assistance of counsel, we note that the...