State v. FitzGerald

• Decision Date: 05 July 1996
• Docket Number: No. 94-650,94-650
• Citation: 165 Vt. 343,683 A.2d 10
• Parties: STATE of Vermont v. Gregory Stephen FITZGERALD.
• Court: Vermont Supreme Court

Page 10

683 A.2d 10

165 Vt. 343

STATE of Vermont v. Gregory Stephen FITZGERALD.

No. 94-650.

Supreme Court of Vermont.

July 5, 1996.

Motion for Reargument Denied July 26, 1996.

Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee.

Robert M. Paolini of Martin & Paolini, Barre, and Gregory FitzGerald, pro se, Swanton, for defendant-appellant.

Before ALLEN, C.J., ^* GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

Defendant appeals from his conviction by jury of first-degree murder. He claims that the court erred in denying his motion for mistrial, which was based on the admission of a statement allegedly obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant also contends that the court erred in failing to voir dire the jury about alleged misconduct by one of the alternate jurors. Acting pro se, defendant claims, as well, that the court erred in denying his motion for judgment of acquittal, arguing that the State failed to establish that the victim was dead on the date the murder allegedly occurred. We affirm.

On May 20, 1993, defendant was charged with murdering his wife, Amy FitzGerald, in Shelburne, Vermont on May 8 of that year. After his arrest in Massachusetts, defendant waived extradition, and was transported to Vermont.

Prior to the murder, defendant had lived in Texas while his wife attended graduate school at the University of Vermont. Defendant had told his wife that he was attending the University of Texas but, in fact, he had been placed on academic dismissal in 1992. Unbeknownst to his wife, defendant had been involved with a woman in Texas since 1991. He had also removed his wife's jeep from a parking lot without her knowledge and placed it in storage. He reported the jeep stolen and recovered the insurance proceeds in January of 1993. The jeep was discovered at the storage facility and impounded by the police on May 1, 1993. Shortly thereafter defendant decided to kill his wife.

At trial the State introduced evidence of defendant's scheme involving multiple rental cars and an elaborate schedule of air travel, designed to conceal his involvement in the crime. The evidence showed that defendant had driven with a friend from Texas to Connecticut, flown from Connecticut to Texas and back to Connecticut, driven to Vermont, and then murdered his wife in her Shelburne condominium on May 8. Neighbors of the victim reported hearing crashing noises and the sound of a woman screaming at approximately 4:00 am that day.

Amy's body was discovered on May 11. An autopsy revealed that she had died of asphyxiation two to four days before her body was found. Ultimately, several witnesses, including friends and relatives of defendant, testified that he had confessed to them. After a ten-day trial defendant was convicted of first-degree murder.

I.

Defendant first contends that the trial court erred in denying his motion for a mistrial. This issue revolves around testimony of Vermont State Police Detective Sergeant Timothy Bombardier, the officer who transported defendant from Massachusetts to Vermont. Sergeant Bombardier testified that at a highway rest area he and defendant had the following exchange about defendant's friend Ricky, who had driven with defendant from Texas to Connecticut before the murder was committed:

Q. Could you tell us what Mr. FitzGerald said to you while at this rest stop?

A. He asked me where Rick was, or where Ricky was.

Q. And what did you respond to Mr. FitzGerald?

A. Words to the effect of, he's in Texas, why?

Q. And what did he say in response to that?

A. That's good, he had nothing to do with it.

Prior to being transported, defendant had invoked his privilege against self-incrimination and had indicated that he wished to speak to an attorney. He claims that Sergeant Bombardier's response, "He's in Texas, why?" constituted custodial interrogation in violation of his Miranda rights.

The State's original offer of proof regarding this testimony did not include "why?". Because the defense did not know of the interrogatory nature of the response until it was given at trial in front of the jury, this issue was not decided prior to trial. After a conference in chambers, the court concluded that the officer's query did not constitute interrogation for purposes of Miranda and denied defendant's motion for a mistrial.

The safeguards of Miranda attach whenever a person in custody is subjected to interrogation. See Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Under Miranda, the term "interrogation" encompasses only "words or actions ... that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Although the focus of the inquiry is on the perception of the suspect, the police cannot be held accountable for the unforeseeable results of their words and actions. Id. at 302, 100 S.Ct. at 1690. Thus, an incriminating statement made in the course of casual conversation is not the product of interrogation. United States v. Satterfield, 743 F.2d 827, 849 (11th Cir.1984).

Here, defendant initiated a casual conversation with Sergeant Bombardier at a highway rest stop. Officer Bombardier responded to defendant's question about Ricky's whereabouts with a common figure of speech. As the trial court found, the "why?" did not, under the totality of the circumstances, constitute an invitation for defendant to incriminate himself. There is no evidence that Sergeant Bombardier knew or should have known that his words were likely to elicit an incriminating response. The court correctly concluded that the exchange between defendant and Sergeant Bombardier did not constitute interrogation.

The case defendant relies upon, People v. Olivera, 164 Ill.2d 382, 207 Ill.Dec. 433, 647 N.E.2d 926 (1995), is inapposite. In Olivera, a suspect was included in a police lineup, after which everyone, except the suspect and a police detective, was removed from the room. The suspect, who earlier had invoked his Miranda rights, asked what had happened. The detective responded that the suspect had been positively identified. Although the detective reminded the defendant of his rights, the defendant went on to make an incriminating statement.

Thus, in Olivera, the suspect was confronted with substantive evidence of guilt. The Illinois Supreme Court held that the detective should not have responded to the question except to remind the suspect of his rights, because revealing that the suspect had been positively identified was likely to elicit further statements. Id. at 437, 647 N.E.2d at 930.

Here, in contrast, defendant was not confronted with substantive evidence of guilt. Defendant initiated a casual conversation with Sergeant Bombardier, who tagged a "why" onto his answer to defendant's apparently innocuous question. Nothing in the circumstances or content of the exchange could be deemed likely to elicit an incriminating statement. There was no violation of defendant's Miranda rights, and the motion for a mistrial was properly denied. See State v. Jones, 160 Vt. 440, 449-50, 631 A.2d 840, 847 (1993) (court's ruling on motion for mistrial will be upheld unless discretion was totally withheld or exercised on untenable grounds). Furthermore, even if defendant's statement had been obtained in violation of Miranda, its admission would not mandate reversal. Other witnesses, including defendant's friend Denise O'Brien and his cousin Robert Saville, testified that defendant had confessed to murdering Amy, and had made statements to the effect that the man he had travelled with was innocent. Thus, defendant's statement, "That's good, he had nothing to do with it," if construed to mean that defendant had personal knowledge of the crime and that his companion was innocent, is cumulative. We conclude that admission of the statement, even if constitutionally invalid was harmless beyond a reasonable doubt. See State v. Streich, 163 Vt. 331, 346, 658 A.2d 38, 49 (1995) (error of constitutional magnitude is harmless where it is clear beyond reasonable doubt that jury would have returned guilty verdict regardless of error).

II.

Next defendant claims that the trial court erred in failing to examine the jurors individually after allegations of misconduct by an alternate came to light. On April 19, 1994, after the court announced that the jury had reached a verdict, the defense revealed that it had received notice from the public defender's office of potential juror misconduct. Robert Backus, a public defender, told the court that one of his clients claimed that an alternate juror had discussed the case with neighbors. Backus, who was not able to verify the allegations, stated that his client wished to remain anonymous.

The court proposed that it question the alternate to ascertain whether there was any substance to the allegations. The court stated that the parties would have the opportunity to ask questions during the examination. Defendant was present when the court made this suggestion. The court went on to say that if the allegations of misconduct were substantiated during the examination, it would question the jury about whether any conversations took place between the alternate and the panel during the trial.

The alternate was questioned under oath by the court. She stated that she had mentioned to both her husband and her mother that she "wish[ed] [the trial] would get over with." She denied discussing the substance of the trial with anyone, but conceded that she had told another juror that she was "glad [she] didn't have to vote either way."

The State did not question her, and defense counsel asked only if she had told anyone that she believed defendant was guilty. She stated that she had not. The alternate was excused. The parties then agreed...