State v. Fulminante

• Decision Date: 02 March 1999
• Docket Number: No. CR-95-0160-AP,CR-95-0160-AP
• Citation: 193 Ariz. 485,975 P.2d 75
• Parties: , 290 Ariz. Adv. Rep. 8 STATE of Arizona, Appellee/Cross-Appellant. v. Oreste FULMINANTE, Appellant/Cross-Appellee.
• Court: Arizona Supreme Court

Page 75

975 P.2d 75

193 Ariz. 485, 290 Ariz. Adv. Rep. 8

STATE of Arizona, Appellee/Cross-Appellant. v. Oreste FULMINANTE, Appellant/Cross-Appellee.

No. CR-95-0160-AP.

Supreme Court of Arizona En Banc.

March 2, 1999.

Janet A. Napolitano, Arizona Attorney General, Phoenix, By: Paul J. McMurdie Gregory A. McCarthy Attorneys for State of Arizona.

Brockelman & Brodman, P.L.C.,Phoenix, By: James J. Belanger Attorneys for Oreste Fulminante.

OPINION.

FELDMAN, Justice.

¶1 A jury found Defendant Oreste Fulminante guilty of first-degree, premeditated murder. The trial judge sentenced Defendant to death. We have considered Defendant's direct, automatic appeal of his murder conviction and death sentence and conclude his conviction and sentence must be reversed due to errors at trial. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), A.R.S. § 13-4031, and Rule 31.2(b), Ariz.R.Crim.P.

FACTS AND PROCEDURAL HISTORY

A. Background

¶2 In September 1982, Defendant lived in Phoenix with his wife, Mary, and his eleven-year-old stepdaughter, Jeneane. The three had moved from New Jersey two years earlier. Mary, the only employed family member, had become frustrated with Defendant's failure to obtain employment. Defendant had a highly strained relationship with Jeneane and often blamed her for his deteriorating relationship with Mary. On one occasion, he physically disciplined her for coming home late from school, and after the police came to the house to investigate the incident, he threatened her. Jeneane had expressed fear and dislike of Defendant to people outside the family, including her school principal, another school employee, and a friend's parent.

¶3 On September 6, 1982, Mary checked into the hospital for surgery. Before leaving for the hospital, she told Defendant she would leave him if he did not have a job by the time she fully recovered from her surgery. During the day of September 13, Defendant briefly visited Mary in the hospital. As she listened to Defendant express his irritation with Jeneane, Mary noted that his breath smelled strongly of alcohol. Early that evening, Defendant spoke with Mary on the telephone and told her he was preparing a chicken dinner for Jeneane and himself. Defendant visited Mary again that evening. He later told police that he visited from approximately 6:30 until 8:15 p.m., but another witness testified that Defendant arrived shortly before 8:00 p.m. Mary testified that while she was uncertain exactly when he arrived that evening, Defendant usually arrived close to 8:00 p.m. when visiting hours ended. During the evening visit, Defendant explained that Jeneane had not accompanied him because she was home doing schoolwork.

¶4 At approximately two the next morning, Defendant telephoned the Mesa Police Department to report Jeneane missing. Later that morning, when Defendant brought Mary home from the hospital, he told her Jeneane had not come home the previous night. He said that when he realized Jeneane was missing, he first looked around the house, then around the neighborhood door-to-door, and then used his motorcycle to continue searching for her. When Mary questioned him on the details of his search, he admitted he had not gone door-to-door. At this point, Mary and Defendant both went through the neighborhood looking for Jeneane. Sometime after Mary returned to the house, she discovered that Defendant's pistol ¶5 At about 6:00 a.m. on September 16, Jeneane's decomposed body was found in a desert wash approximately eleven miles from the Fulminantes' home. There were two gunshot wounds to her head and clumps of hair near her body. A long, narrow cloth was wrapped loosely around her neck. Her pants had been undone, the waistband resting below her waist, while the elastic of her underpants was rolled under. Police later recovered a spent bullet from the ground near the place where Jeneane's body was discovered.

was missing. When the police visited their home on September 15, the Fulminantes reported the missing pistol.

¶6 The autopsy revealed that Jeneane died of the gunshot wounds. Gunpowder in the entry wounds suggested the shots had been fired at close range. Lead fragments were recovered from the brain. Testing of swabs taken from the victim's oral, vaginal, and rectal cavities proved inconclusive of whether Jeneane had been sexually abused. It was possible this was due to decomposition of the body. Pathologists did find that at the time of her death, Jeneane's stomach had been full and its contents included "meat." Based on the digestive stage of the meat, the experts determined that Jeneane died within two hours of her last meal. Because the stomach contents were not preserved for further testing after the autopsy, it is not known whether chicken was present.

¶7 Defendant told detectives he had recently sold one of his rifles for bread and milk and purchased an extra barrel for his pistol while Mary was in the hospital. Police later discovered that on September 13, Defendant traded his rifle for eighty dollars cash and a second barrel for his .357 Dan Wesson revolver. The extra barrel was also missing from the Fulminante home. Ballistics tests indicated the wounds on Jeneane's body were made by either .357 or .38 caliber bullets. The wounds were most consistent with a .357, and a .357 is compatible with a .38. The police recovered a box of .357 and .38 caliber ammunition during a consensual search of the Fulminantes' house.

¶8 Defendant left Phoenix alone on October 11, 1982. Soon after, he was arrested in New Jersey as a felon in possession of a firearm. He was convicted and served a two-year sentence. Shortly after his release, Defendant was again arrested and convicted for possessing a firearm and received another two-year sentence. While serving this term, Defendant became acquainted with Sarivola, an inmate secretly serving as a paid FBI informant. Sarivola had heard a rumor that Defendant was suspected of killing a child. Defendant initially denied the rumor, but Sarivola's FBI contact told him to find out more. Capitalizing on the fact that Defendant had been receiving rough treatment from other inmates, and offering protection for truth, Sarivola induced Defendant to confess. When Defendant was released from prison, Sarivola, who had been released earlier, and his fiancee, Donna, picked up Defendant at the prison. While in the car, Defendant told Donna that he had killed a little girl in Arizona.

B. The first trial

¶9 Defendant was eventually arrested and returned to Arizona to stand trial for Jeneane's murder. Based in great part on his confessions to Sarivola and Donna, Defendant was convicted and sentenced to death. We reversed that conviction on the grounds that Defendant's confession to Sarivola was involuntary and its admission was structural error. State v. Fulminante, 161 Ariz. 237, 262, 778 P.2d 602, 627 (1988) (hereinafter Fulminante I ). The United States Supreme Court agreed the confession was involuntary but disagreed with our finding of structural error and held that harmless error analysis applies to coerced confessions. Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991) (hereinafter Fulminante II ). Despite applying the harmless error standard, the Court found the admission of the coerced Sarivola confession was prejudicial error. Id. at 302, 111 S.Ct. at 1261. The Court further concluded that the credibility of Donna's testimony about the second confession was bolstered by the Sarivola confession, reasoning that successful prosecution depended on the jury believing the two confessions. Without them, the Court thought it "unlikely" Defendant could

                have been prosecuted in light of weak evidence that would have been "insufficient to convict."  Id. at 297, 111 S.Ct. at 1258.   The Court therefore affirmed our judgment remanding the case for a new trial
                

C. The second trial

¶10 After the appeals of the first case had been resolved, the trial judge remanded the case to a new grand jury. The state presented Defendant's confession to Sarivola and the grand jury indicted. At the second trial, the state did not offer either of the confessions, but Defendant was again convicted and sentenced to death. We now consider the direct appeal from the second trial. Defendant raises several significant issues. We agree with Defendant's argument that admission of Jeneane's hearsay statements, reflecting her belief about Defendant's future conduct, was prejudicial error. We therefore need not address the serious issues arising from the state's failure to timely disclose the discovery of physical evidence. ¹ For purposes of judicial economy, we also discuss other issues likely to recur on retrial. We first address issues potentially dispositive of retrial--those pertaining to sufficiency of the evidence.

DISCUSSION

A. Whether the trial judge should have dismissed the indictment

¶11 Defendant argues that the indictment should have been dismissed because his confession, found involuntary and inadmissible on appeal from his first trial, was used before the grand jury. Defendant claims this violated his rights under Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Stirone, however, does not support Defendant's argument. Evidence presented to a grand jury need not be admissible in trial. See State ex rel. Berger v. Myers, 108 Ariz. 248, 250, 495 P.2d 844, 846 (1972). Thus, we find no error in use of this confession before the grand jury.

B. Whether we are bound by the United States Supreme Court's comments on sufficiency of the evidence

¶12 In Fulminante II, the United States Supreme Court held that Defendant's confession was coerced and reviewed the record to determine whether its admission was harmless error. 499 U.S. at 297-302, 111 S.Ct. at 1258-61. The Court found the admission prejudicial, in part because

both the trial court and the State recognized that a successful prosecution...