Fagan v. State

WENNER, Judge. Appellant, William Robert Fagan, Sr., was convicted by a jury in the Circuit Court for Montgomery County 1 of conspiracy to commit first degree murder. 2 After appellant’s motion for a new trial had been denied and he had been sentenced to life in prison, he noted this appeal, in which he poses a tetrad of questions, which we have rephrased slightly for clarity: I. Did the trial judge usurp the fact-finding function of the jury when, in response to a jury question about corroboration of accomplice testimony, the trial judge gave the jury specific examples of corroboration from the evidence presented in the case?

II

Was the evidence insufficient to corroborate the testimony of appellant’s alleged accomplice? ²³⁰ III. Did the trial judge err in permitting the jury to determine whether Allan Phillips was an accomplice?

IV

Did the trial judge err in improperly restricting appellant’s cross-examination of Allan Phillips? We shall answer appellant’s first question in the affirmative and, on that basis, reverse the judgment of the circuit court and remand the case to that court for a new trial. Hence, we need not address appellant’s remaining questions. Facts The body of appellant’s wife, Deborah Patricia Fagan, was discovered at about 8:20 on the morning of 6 January 1992, in the driver’s seat of a blood-spattered vehicle parked on Ashcroft Terrace 3 .

She had died of two gunshot wounds to the head, both fired at close range. Trooper Rick Stotelmyer, a crime scene technician for the Maryland State Police, was dispatched to the murder scene to collect evidence. On arriving at the murder scene, Trooper Stotelmyer photographed a number of blood smears on both the victim and the vehicle, dusted for fingerprints, and gathered hairs and fibers from the front passenger seat. Employing a metal detector, Trooper Stotelmyer recovered a bullet jacket from a grassy area just off Ashcroft Terrace.

Nothing in the back seat of the vehicle appeared to have been disturbed. Upon examining the contents of the victim’s purse, a check for $150.00 was found, signed by the victim and made payable to appellant. A notation on the check indicated it to have been intended for the Internal Revenue Service. On cross-examination, Trooper Stotelmyer testified that anyone in the vehicle when the fatal shots were fired would have been spattered with blood.

Moreover, the trooper opined that the blood had been smeared by whoever was in ²³¹ the vehicle when the victim was killed. Trooper Stotelmyer also opined that the victim had been killed while in the vehicle at Ashcroft Terrace, and that the perpetrator had fled either on foot or by vehicle. Joseph Kopera was presented by the State as an expert on ballistics and firearms. Kopera testified that the bullet jacket found by Trooper Stotelmyer was part of a .38/.357 caliber bullet. 4 According to Kopera, the bullet jacket could only have been fired from one of three brands of revolvers.

One of those brands was a Smith & Wesson. Kopera further opined that the murder weapon had been fired from no more than twelve inches from the victim. Of the guns presented to him by the State, Kopera could not determine which, if any, of them had been used in the killing. William Nicklas, a practicing attorney from Frederick, testified that the victim had consulted him in October of 1991 about obtaining a limited divorce from appellant.

Nicklas said that he and the victim had met with appellant to discuss certain issues, 5 but that appellant became hostile and Nicklas had terminated the discussion. The victim’s mother, Patricia Kamman, testified that the victim and her two young children had moved in with her during late September of 1991 because of domestic problems. Ms. Kamman testified that, when she left for work on the morning of the murder, the victim was asleep. Ms. Kamman said that the victim normally left for work between 6:20 and 6:35 a.m.

The State also presented Kelly Appicello, the victim’s sister, as a witness. Ms. Appicello testified that she was aware that appellant and the victim “weren’t getting along” in September of 1991, and that the victim and her children had moved in with Ms. Kamman. 6 ²³² Ms. Appicello recounted that the victim had been seeing one Anthony Fiorill, and that on 4 January 1992, two days before the murder, the victim and her children had spent the night at the Fiorill house. Ms. Appicello also testified that she had overheard a phone call during which appellant asked the victim “to meet him so she could give him a check for the IRS.” Ms. Appicello said that the victim had gotten up at about six o’clock on the morning of 6 January, the first day on which the victim was returning to work after the holidays. Ms. Appicello recalled that the victim had written the check for the IRS at about 6:20 a.m., and left for work in her own vehicle. 7 Anthony Fioriíl was also presented as a witness for the State.

Fiorill related an encounter with appellant in August of 1991 at a neighborhood pool party. During their conversation, appellant told Fiorill that the victim was experiencing a problem with her pituitary gland. When Fiorill expressed his sympathy, appellant “made some crack about, ‘That’s okay. She has a good insurance policy.’ ” According to Fiorill, the victim had begun visiting his home after she and appellant had separated in September of 1991.

Allan Phillips, a close friend of appellant lived near Fiorill in Montgomery County, and Fiorill would often see appellant’s vehicle parked in the vicinity. Fiorill described how on one occasion, upon leaving his house, the victim discovered that her car’s tires had been deflated. The victim was employed by Electronic Data Systems (EDS). One of her co-workers, Vicky Degraffenreid, testified that the victim had obtained an insurance form, used to designate beneficiaries, from the office.

Another co-worker, Kathleen Kemp, testified that the victim talked about closing her joint bank accounts with appellant and opening an account in her own name. EDS’s Office Manager, Trudy McKnight, detailed an August 1991 conversation in which the victim had ²³³ inquired of McKnight about the steps the victim needed to take in changing the beneficiary of her insurance. Ms. McKnight went on to say that, several days after the victim had been murdered, Ms. McKnight received a telephone call from a man who identified himself as appellant, inquiring of the steps necessary to collect the victim’s life insurance. Corporal Ted Nee, the investigating officer for the Frederick County Sheriff’s Department, testified that he had visited appellant at home about 12:40 p.m. on the day of the murder.

Corporal Nee said appellant had told him that, although he normally left for work about 6:00 a.m., on the day in question he had waited for the victim to deliver him a payment for the IRS by 6:30 a.m. Appellant also told Nee that, as the victim failed to arrive, he had gone on to work at about 6:45 a.m. When Corporal Nee asked appellant if there were any weapons in the house, appellant said no, although he once kept a shotgun on the premises. According to appellant, the shotgun was no longer there because of the children.

After appellant consented to a search of the house, Corporal Nee observed two different brands of beer in appellant’s refrigerator: Coors Light and Bud Light. Two days later, Nee found empty Coors Light and Bud Light cans near the crime scene. While searching appellant’s house, Nee retrieved appellant’s work overalls, as well as a paint chip containing a red mark. Later, while executing a search warrant, Nee seized a kit for cleaning guns from appellant’s basement, as well as a cigar box containing a .38 caliber shell casing.

Nee said that appellant waived his Miranda rights, 8 and consented to a taped interview on the following day. Nee conceded on cross-examination that tests performed on the paint chip as well as on a sweatshirt seized from appellant’s residence had failed to reveal the presence of blood. ²³⁴ Moreover, the animal hairs obtained from the vehicle in which the victim was found were not consistent with appellant’s dogs. State’s witness Wayne Holl recalled a conversation with appellant during the summer of 1991 in which they had discussed weapons. Appellant had mentioned to Holl several weapons he had owned, including a .357 Smith & Wesson.

Holl was later shown the Smith & Wesson. Richard Howell, who had known appellant for almost twenty years, testified that in 1991 he had inquired of appellant about appellant’s marriage. Howell smelled beer on appellant’s breath as appellant responded that Tony Fiorill was ridiculing appellant in front of his children, and “[pjretty much in the same sentence [appellant] said that he was going to get a throw away, shoot the bitch and plant the gun on Tony to make it look as if he did it.” Appellant’s cousin, Robert Ivey, was present during this conversation. After the murder, Ivey accused appellant of the crime.

According to Ivey, appellant thanked him for being “up front” or “honest.” Other evidence was adduced at trial relating to appellant’s familiarity with and use of firearms. For example, Paul Marstaller testified that, during a visit with appellant around Christmas of 1991, appellant, in referring to the victim, said that “one bullet will take care of everything.” Marstaller nevertheless admitted having said the same thing “a thousand times. I have been saying it for 20 years.” Another witness, William Stevens, described an incident that occurred after the murder, but before appellant was arrested. Allan Phillips’ wife had telephoned Stevens, and asked him to tell appellant “[tjhat Mortichi Jones called.

You better head west.” Allan Phillips 9 testified that he had used the name “Mortichi Jones” to warn appellant of developments in the investigation. Phillips also testified that, given his proximity to Anthony Fiorill’s house, Phillips had kept appellant apprised of the ²³⁵ victim’s visits. Phillips also confirmed that it was appellant who had deflated the victim’s tires during one of her visits to Fiorill’s house. According to Phillips, appellant was not happy with these visits: PHILLIPS: [Appellant] commented several times that doing anything to either Wayne Holl or to Tony [Fiorill] that it wouldn’t do any good because [the victim] would just move on to somebody else, that he would have to take care of her, do something to her to stop it, to stop—if he couldn’t have her, nobody could.

If [the victim] wouldn’t come back home, he didn’t want nobody else to have here [sic], and he would take care of the situation, do something or fix it so that he could have her and nobody else. Phillips said that he and appellant had driven to the Kamman house just after Christmas, and while they were parked near the Kamman house, appellant “brought up the fact of what about here[?]” Phillips felt this to have indicated appellant’s desire to “do some harm to [the victim].” At some point, the two had driven to Ashcroft Terrace, where appellant “mentioned what I [Phillips] thought about that area, what do you think about here?” Phillips recalled responding, “well, it would be better to do it here, if you were going to kill her than if you were going to do [sic] over at her mother’s house.... ” Phillips went on to say that the two had finished the Coors Light and Bud Light beers 10 they were drinking, and tossed the empty cans into the grass. Phillips testified that appellant had later asked to be dropped off near the Kamman house on the morning of the murder, and Phillips had done so. When he picked appellant up that morning, Phillips said appellant was wearing “[a] plumber[’]s hat, cap, like a baseball style, flannel shirt, either ²³⁶ corduroys or jeans and work boots,” and was carrying “[a] pair of overalls, a vest, and like a black legal bag, something like a suitcase but like vinyl material.” After leaving appellant near the Kamman house, Phillips went on to work in Montgomery County, arriving at about 4:30 or 4:45 a.m.

Phillips said he left work at about 6:30 that morning to go to NIH for treatment of a chronic skin disease. Appellant worked at NIH. According to Phillips, when he encountered appellant at NIH, they stepped outside for a cigarette, and appellant said, “It is all over with.” Moreover, Phillips said he had agreed to keep some items for appellant in his vehicle until appellant retrieved them, which he had done some weeks later. 11 Several witnesses remembered having seen a maroon or dark colored vehicle parked at the bottom of Ashcroft Terrace at about 6:40 to 7:00 on the morning of the murder. Another witness remembered seeing the headlights of a vehicle moving slowly on Gladhill Brothers Road at about 6:15 that morning.

As Christopher O’Neal was not available for the second trial, his testimony from the first trial was admitted into evidence, revealing that he owned a 1990 Pontiac Grand Am. On the morning of the murder, O’Neal recalled following a vehicle of the “same general type” on Gladhill Brothers Road. According to O’Neal, this vehicle turned onto Ashcroft Terrace sometime between 6:30 and 6:40 that morning. 12 At about 6:45 that morning, Megan Duffy saw her dog running towards ²³⁷ and barking at a slim man about six feet tall jogging in a sweatshirt with a grey hood. Gary DeWitt testified that he nearly struck a jogger as he entered Gladhill Brothers Road while leaving for work between 6:45 and 6:50 on the morning of the murder.

DeWitt described the jogger as a man of medium build and medium bulk, clad in blue pants, possibly a dark pullover sweater, perhaps canvas shoes, and a light-colored cap or hood. 13 DeWitt also said that the man may have been wearing a shirt under the sweater that was “plaid perhaps, I don’t know,” but was unable to see the jogger’s face. Appellant’s supervisor, Timothy Haley, was the State’s final witness. According to Haley, on the day of the murder, appellant did not arrive at work at his normal time, and when he finally arrived, appellant was not dressed in his usual coveralls and welder’s cap. Rather, appellant was wearing a baseball cap, blue jeans, and a plaid flannel shirt.

Mark Gluck was called as a witness by the defense. On the day of the murder, Gluck had worked with appellant during the entire morning. Gluck said that appellant had arrived about 8:30 that morning. When defense counsel asked Gluck if Phillips had been with them on the day of the murder, Gluck responded, “That morning, I don’t believe—I don’t know.

I don’t remember if he did ... I don’t recall seeing him, no.” By stipulation, certain business records were then admitted into evidence, indicating that Phillips had been on sick leave during the entire week of 6 January. Appellant testified in his own defense, and repeated that he had planned to obtain the IRS payment from the victim on the day in question, but that, as she had not arrived, he had proceeded to work, arriving at about 8:00 to 8.T5 that morning. ²³⁸ We shall add such further facts as may be necessary to our discussion. Discussion During its deliberations, the jury sent the trial judge the following note: Some jurors would like the judge to define corroboration.

Alternatively, how about a dictionary? Out of the presence of the jury, the following colloquy ensued: THE STATE: I don’t think the instruction could be a lot clear [sic] than that, Judge. I thought that the Court had pretty much defined corroboration in the instructions. Reading that back it seems to me that it is pretty clear.

DEFENSE: We are in agreement. We don’t think any further instruction should be given. I think that what Your Honor said was clear.