State v. Fitzgerald
| Docket Number | 2019-0490,2021-0501 |
| Decision Date | 07 November 2023 |
| Parties | State of New Hampshire v. Robert M. Fitzgerald, Jr., |
| Court | New Hampshire Supreme Court |
The Court on November 7, 2023, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order.SeeSup. Ct. R. 20(2).The defendantRobert M. Fitzgerald, Jr., appeals his convictions on one count of kidnapping, seeRSA 633:1, I (2016), two counts of second-degree assault, seeRSA 631:2, I(f)(2016), one count of simple assault - domestic, seeRSA 631:2-b, I (a)(2016), and one count of obstructing the reporting of a crime - domestic, seeRSA 631:2-b, I (k)(1)(2016).He argues that the Trial Court(Smukler, J.) erred when it denied his motion to dismiss the kidnapping indictment.He also argues that the Trial Court(Delker, J.) erred when it subsequently denied his motion for a new trial based on the State's failure to disclose exculpatory evidence, and denied his motion for a new trial based on ineffective assistance of counsel.We affirm in part, vacate in part, and remand.
I
The defendant was first tried in superior court on March 18 2019.During the trial, the victim provided testimony about certain information that the State had not previously disclosed to the defendant.Defense counsel requested a mistrial; the State argued that a curative instruction could suffice.The trial court granted the mistrial without prejudice.
A second jury trial was held in June 2019, at which the following evidence was presented.At the time of the charged offenses, the defendant and the victim had been married for approximately six weeks.On April 16, 2018, the victim returned from work and found court documents with the defendant's name on them taped to the door to her apartment.She became upset after reading them, and assuming that he was at work, she called the defendant.She told him about "what was listed on those documents" and that she"was extremely upset."When she opened the door to her apartment, she found the defendant inside.She told him that the marriage was over and that she wanted him to move out of her apartment.He responded that she was not ending their marriage and that the documents were false.She told him to "take his stuff and go" before she went to her second job as a waitress at a local restaurant.
Toward the end of her shift, the defendant appeared at the restaurant.He was slurring his words and smelled of alcohol.To avoid seeing him, the victim remained in the restaurant kitchen until he left.When the victim arrived home after her shift, the defendant was standing outside the apartment with his dog.Assuming that he was leaving, she walked past him into the apartment.As she headed from her bedroom to the bathroom, the defendant entered the apartment.She could see that "his things were still there."He told her that he was not leaving: "he wasn't breaking up this family."She told him to leave.She tried to return to the bedroom to get her phone to call the police.As she headed past him, he came behind her and pushed her into the wall.After she fell into the wall, she began crying, and then screamed: "[G]et out."
In response, the defendant came up behind her and put his arm around her neck and his hand over her face.She attempted to scream but was unable to breathe.When she finally stopped struggling, the defendant released her.When she stood up to try to run to her bedroom to retrieve her phone, he grabbed her and threw her on the couch.As she screamed and struggled to get away from him, he took one of the couch pillows and held it over her face.He told her that no one would miss her if she died and that he was going to kill her.When she again stopped struggling, he allowed her to sit up on the couch.The victim then went to her bedroom to attempt to call for help from her bedroom window, but the defendant slammed it closed and pushed her toward the bed and told her that she was not leaving.The victim's phone was on the bed, and a struggle ensued for the phone.The defendant ended up with the phone.The victim again attempted to run to the bedroom window, but the defendant again pushed her away from it.She ran toward the living room, and the defendant put his arm around her neck and dropped her to the floor.The defendant eventually allowed the victim to get up and go to the bathroom.The victim attempted to open the bathroom window but the defendant shut the window and slammed the victim onto the toilet and held her there.The defendant thereafter allowed the victim to go to the living room and sit on the couch, where she asked for her phone back, pleading for him to let her go and let her call the police, but the defendant refused.Eventually, she went back to her bed.The defendant moved a table directly in front of the bedroom door and remained seated there until the victim fell asleep.The next morning the defendant allowed the victim to leave for work where she contacted the police.
The defendant was subsequently charged with three counts of second degree assault - strangulation; four counts of simple assault - domestic; one count of criminal threatening; one count of kidnapping; and one count of obstructing the reporting of a crime - domestic.As previously noted, the first trial began on Monday, March 18, 2019.On the preceding Friday, March 15, between 4 and 5 p.m., during a meeting with the prosecutor(Attorney Topham), the victim advised the prosecutor for the first time about the court documents (a child support petition) that she had found taped to the door.The prosecutor shared this disclosure with defense counsel on Monday, March 18.The trial court granted a brief recess to allow defense counsel to discuss the disclosure with his client.The parties then agreed to proceed without reference to the name of the documents or their contents.During cross-examination, defense counsel asked the victim about her pretrial meetings with the prosecutor, specifically asking her: "how many times have you spoken with Attorney Topham?"The victim indicated that she had done so on two occasions, once sometime around May 2018 and once on the previous Friday - March 15, 2019.
At the end of his cross-examination, defense counsel informed the trial judge that the victim's testimony regarding her encounter with the defendant when she returned home from her first job had not been disclosed to him.The prosecutor agreed, stating that he had mistakenly believed the information was in the police reports.Defense counsel then requested a mistrial.The trial judge ordered a recess in order to permit the parties and the judge to research mistrials.The court reconvened 25 minutes later.The parties then argued the motion for mistrial, after which the court granted a mistrial without prejudice, stating: "In this case, a significant portion of the victim's description and testimony about what happened that day was not provided to the Defense counsel until today, and he can't possibly incorporate that into his trial tactics or strategic planning with his client."
The defendant was retried in June 2019 and was convicted.He appealed to this court, challenging, inter alia, the denial of his motion to dismiss the kidnapping indictment.
In March 2020, the defendant filed a motion for a new trial, arguing that his counsel had provided ineffective assistance of counsel when counsel requested a mistrial at the March 2019 trial without the defendant's consent.[1]In August 2020, the defendant filed a motion for discovery alleging that a third meeting had taken place between the prosecutor and the victim on Monday, March 11, 2019, and that documentation of the meeting had not been provided to him.The State represented that the defendant had been given everything to which he was entitled but agreed to provide a note created by the victim-witness coordinator to document the March 11 meeting.The defendant thereafter filed a second motion for a new trial based on the prosecutor's failure to disclose exculpatory evidence.
In August 2021, the Trial Court(Delker, J.) issued an order denying each of the defendant's post-conviction motions.He appealed that order to this court.We accepted the discretionary appeal and consolidated it with the defendant's direct appeal.
II
We begin by considering the defendant's argument that the trial court erred in denying his motion to dismiss the kidnapping charge because: (1)"the evidence was insufficient to exclude reasonable conclusions that [the]defendant's intent was not to terrorize"; (2) the doctrine of merger required dismissal "because the acts of confinement were incidental to other offenses"; and (3) the multiple fines for two offenses resulted in the defendant being punished twice for the same offense in violation of the Double Jeopardy Clauses.We address each challenge in turn.
A challenge to the sufficiency of the evidence raises a claim of legal error; therefore our standard of review is de novo.State v. Bell, 175 N.H. 382, 385(2022).To prevail on his challenge, the defendant must demonstrate that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it, in the light most favorable to the State, could have found guilt beyond a reasonable doubt.Id.When the evidence as to one or more elements of the charged offense is solely circumstantial, a defendant challenging sufficiency must establish that the evidence does not exclude all reasonable conclusions except guilt.State v. Saintil-Brown172 N.H. 110, 117(2019).The proper analysis is not whether every possible conclusion consistent with innocence has been excluded, but,...
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