State v. Fitzpatrick

• Court: Montana Supreme Court
• Writing for the Court: JAMES T. HARRISON
• Citation: State v. Fitzpatrick, 163 Mont. 220, 516 P.2d 605, 30 St.Rep. 1052 (Mont. 1973)
• Decision Date: 04 December 1973
• Docket Number: No. 12531,12531
• Parties: STATE of Montana, Plaintiff and Respondent, v. Bernard James FITZPATRICK, Defendant and Appellant.

Page 605

516 P.2d 605

163 Mont. 220

STATE of Montana, Plaintiff and Respondent, v. Bernard James FITZPATRICK, Defendant and Appellant.

No. 12531.

Supreme Court of Montana.

Submitted Oct. 2, 1973.

Decided Dec. 4, 1973.

James J. Masar argued, Deer Lodge, for defendant-appellant.

Robert L. Woodahl, Atty. Gen., Helena, Thomas J. Beers argued, Asst. Atty. Gen., Helena, M. K. Daniels, county Atty., Deer Lodge, for plaintiff-respondent.

EDWARD T. DUSSAULT,^* District Judge.

The defendant and appellant, Bernard James Fitzpatrick, an inmate of Montana State Prison, was convicted on February 28, 1973, of murder in the second degree upon a jury verdict in the third judicial district, County of Powell.

Appellant and one Gus Hamilton Gardner, another inmate, were charged by information filed October 12, 1972, with 'wilfully, wrongfully, unlawfully, deliberately, feloniously premeditatedly and with malice aforethought, kill and murder one ALFRED FALCON, a human being.', on April 15, 1972. The victim was also an inmate of the State Prison.

At the close of the State's case, Gardner's counsel moved for a directed verdict and same was granted by the trial court.

Upon denial of his motion for judgment of acquittal notwithstanding the verdict, or in the alternative, for a new trial, defendant Fitzpatrick appealed.

The defendant raises three issues on appeal:

1. The verdict was not justified by the evidence.

2. The trial court erred in admitting in evidence: (a) color photographs of the scene of the crime; (b) pieces of a sweatshirt; (c) trousers and a pocket; (d) pair of tennis shoes.

3. That the court erred in not admitting inquiries into the possibility of clothing exchange among inmates.

On the evening of April 15, 1972, at approximately 7:00 p. m. at Rothe Hall, a part of the Montana State Prison complex located west of Deer Lodge, Montana, Alfred Falcon, an inmate, was stabbed and died approximately three hours later in the Powell County Memorial Hospital.

Rothe Hall is a dormitory type building, where many inmates were housed at the time of the incident. The assault occurred in the basement in a small room known as the Indian League Room, where inmates were allowed to practice musical instruments. On the ground or main floor there are two dormitory rooms, #1 to the north and #2 to the south. Between these two dormitory rooms is a lobby area where there is located the guard's receiving desk, a pool table, television set and a barber chair.

The shift lieutenant, Wallace Atkinson, was in the lobby area when he observed Alfred Falcon at the front door, which is located just east of his desk, attempting to open the door. Atkinson went to his aid and assisted him inside, laying him down on some outgoing laundry which was piled near the front door. The lieutenant observed that Falcon was cut severely on the right side of his neck and was bleeding profusely.

Atkinson immediately locked the basement and lobby area and sounded the alarm.

Earlier in the evening between the hour of 6:00 and 7:00 p. m. Atkinson's attention was drawn to the defendant, Fitzpatrick, because of the unusual design on the back of a sweatshirt he was wearing. I depicted an Indian with a bow and arrow shooting at a butterfly.

Shortly after the alarm was given, Warden Crist, Deputy Warden Blodgett and Sheriff Collings arrived. The warden initiated an immediate search. During the course of the investigation, the trash cans from dorms #1 and #2 were pulled into the lobby area. While the search was in progress Lieutenant Atkinson again saw defendant Fitzpatrick, who at that time had changed into a shirt and sweater, in the lobby area.

Found in the trash can of dorm #1 was a knife with a three inch blade, wet and bloody remnants of a sweatshirt which was pieced together on the floor and formed a gray sweatshirt with the name 'Fitzpatrick' thereon and the peculiar Indian design above described. Also found in the same trash can was a pair of wet and bloody denim trousers from which the pockets had been torn.

The next morning, a pocket which matched the trousers was found in the prison sewage lagoon. On this pocket was the name 'Fitzpatrick'.

Photos of the small room in the basement where the crime occurred clearly depicted the scene and also showed footprints in the blood in the room, which footprints led from the scene of the altercation into the rest of the basement and down a hallway toward the backstairs that lead to dorm #1.

There was also found at the scene of the crime the workings of a watch which was broken and which had stopped at 7:01. This workings fit exactly into the watch case on the victim's arm.

The shoes and items of clothing were sent to the F.B.I. and the report, admitted in evidence by stipulation, revealed type 'O' blood on the shoes, sweatshirt and trousers. The report also showed that the pocket and trousers were of the same material.

While there was no evidence of the victim's blood type, there was evidence that Fitzpatrick's blood was type 'O'.

Defendant's defense was an alibi. He was a resident of dorm #2, but testified that at the time of the crime he was in dorm #1, talking with inmate Corliss about an order for handcrafted leather belts that Corliss was adept at making and that he was seen talking to Corliss by inmate Fiddler. Both Corliss and fiddler testified in his behalf. Defendant also testified that he never wore the above described sweatshirt and denied the alleged assault that resulted in the death of Falcon.

Inmate Corliss testified that Fitzpatrick had in fact been to his bunk in dorm #1 about 6:30 p. m. or thereabouts with an order for 3 leather belts with names on them, which names were supplied by defendant. Corliss bunked next to Fiddler. Fiddler testified he saw defendant talk to Corliss while he was changing sheets on his bunk and in the meantime went to take the sheets to the outgoing laundry pile and there saw Falcon. On returning to his bunk Fiddler made some remark about an inmate being on the outgoing laundry and bleeding badly. Upon hearing that remark, Fitzpatrick departed for the lobby area.

Fitzpatrick testified his was 'O' type blood and that he wore 8D or 9C tennis shoes. He also testified that he was working as a cook in Rothe Hall the Saturday evening of April 15, 1972, as they were shorthanded and that when he finished his shift at 6:00 p. m. he was wearing regulation blue shirt and jeans. He testified further that he then went to his dorm #2, took a shower and changed to a gray sweatshirt with a five inch letter across the back of it and wore the same jeans. He then went to the lobby area to get a football game started but couldn't, so went back to his dorm and changed to a prison issue blue shirt and returned to the lobby and to dorm #i to see Corliss about the leather belts. Defendant denied the assault on Falcon.

It is to be noted that, although defendant Fitzpatrick and defendant Gardner were tried together, each had separate counsel and that no motion was made for separate trials.

The first issue raised by appellant is that the verdict was not justified by the evidence.

Admittedly the State's case was proven totally by circumstantial evidence. The rules that govern the weight and sufficiency of circumstantial evidence are set out in the case of State v. Cor, 144 Mont. 323, 326, 396 P.2d 86, 88 (1964). There, this Court stated:

'Circumstantial evidence is not always inferior in quality nor is it necessarily relegated to a 'second class status' in the consideration to be given it. The very fact it is cricumstantial is not a sufficient allegation to justify a reversal of the judgment for such evidence may be and frequently is, most convincing and satisfactory. In any criminal case, evidence that is material, relevant and competent will be admitted, 'nothing more and nothing less.' The test is whether the facts and circumstances are of such a quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt. If such be the case, then the court should not, indeed cannot, set aside the solemn findings of the trier of the facts.'

Or, stated another way, this Court has held that to justify a conviction on circumstantial evidence, the facts and circumstances must not only be entirely consistent with the theory of guilt, but must be inconsistent with any other rational (i. e. reasonable) conclusion. Cor, at 327, 396 P.2d 86; State v. Stoddard, 147 Mont. 402, 408, 412 P.2d 827, 831 (1966).

As to the quality and quantity of evidence necessary, the rule is that if substantial evidence is found to support the verdict, then it will stand. State v. White, 146 Mont. 226, 229, 405 P.2d 761 (1965). This Court in Stoddard stated:

'First we should note that this court is not a trier of fact * * * In view of the presumption of innocence at the trial, the jury must have been instructed to that effect, but on appeal after conviction the rule changes. Then, if the record shows any substantial evidence to support the judgment, the presumption is in favor of such judgment.'

In the present case, there is very little contradictory evidence between the witnesses as to the facts.

Corliss, used as a witness by defendant, actually corroborated the State's witness as to the gray sweatshirt and then the blue shirt worn by defendant that evening between the hours of 6:00 and 7:00 p. m.

As this Court has held many times over, the jury is the fact finding body in our system of jurisprudence, and its decision is controlling. The jury is free to consider all the evidence presented and to pick and choose which of the witnesses it wishes to believe. If sufficient testimony was introduced, as well as exhibits to justify the jury's findings, then its conclusion will not be disturbed unless it is apparent there was a clear misunderstanding by the jury or that there was a misrepresentation made to the jury.

To find a person guilty beyond a reasonable doubt, each fact in...