Fagan v. State

676 A.2d 1009, 110 Md. App. 228, 1996 Md. App. LEXIS 88
CourtCourt of Special Appeals of Maryland
DecidedMay 30, 1996
DocketNo. 1126
StatusPublished
Cited by2 cases

This text of 676 A.2d 1009 (Fagan v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fagan v. State, 676 A.2d 1009, 110 Md. App. 228, 1996 Md. App. LEXIS 88 (Md. Ct. App. 1996).

Opinion

WENNER, Judge.

Appellant, William Robert Fagan, Sr., was convicted by a jury in the Circuit Court for Montgomery County1 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]*230III. 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 Terrace3. 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]*231the 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]*232Ms. 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]*233inquired 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.

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Related

Roary v. State
867 A.2d 1095 (Court of Appeals of Maryland, 2005)
Ashe v. State
726 A.2d 786 (Court of Special Appeals of Maryland, 1999)

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Bluebook (online)
676 A.2d 1009, 110 Md. App. 228, 1996 Md. App. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fagan-v-state-mdctspecapp-1996.