The Evidence Issue
Fitzpatrick is a murder case in which the victim, Annemarie Fitzpatrick, wrote the following note in her day planner on the day before she died: “If something happens to me—JOE.” Annemarie’s husband was Joseph Fitzpatrick, and the prosecution sought to use the note to implicate Joseph in Annemarie’s death. The defense made a hearsay objection to the note, but a state judge admitted it in a pretrial ruling pursuant to Pa. R. Evid. 803(3). A jury convicted Joseph, and the Pennsylvania Superior Court affirmed the conviction. The issues before the Pennsylvania Supreme Court were whether the trial judge erred in admitting the note and whether any error was sufficiently prejudicial to require reversal
The Facts of the Case
On the day she died, Annemarie and Joseph were riding near their home on an all-terrain vehicle through a deep part of Muddy Creek, which is a tributary of the Susquehanna River. According to Joseph, the following facts were true: The ATV flipped backwards and threw both Joseph and Annemarie into the creek; Joseph was able to escape with no serious injuries; Annemarie could not escape; Joseph attempted to locate Annemarie and called 911 when he could not find her; and he saw her body while on the phone with a 911 dispatcher. An investigation ensued, but the Coroner’s Office determined that drowning caused Annemarie’s death and that an autopsy was not necessary. It released the body to a mortician who embalmed her remains.
It is likely that nothing more would have been done in terms of investigating what appeared to an accident had the state police not received a phone call from Rebekah Berry, one of Annemarie’s co-workers. Berry told police investigators that her co-workers had found a day planner on Annemarie’s desk containing the handwritten, signed note described above. That call caused the police to begin a homicide investigation. It is not surprising that Joseph became a prime suspect because he was the only witness to Annemarie’s death.
Police obtained access to Annemarie’s password-protected work email account and discovered that on the morning of the day she died, Annemarie sent an email from her work email account to her personal email account. She wrote in the subject line, “if something happens to me,” and wrote in the body of the message the following: “Joe and I are having marital problems. Last night we almost had an accident where a huge log fell on me. Joe was on the pile with the log and had me untying a tarp directly below.”
Their suspicions raised, police decided to have Annemarie’s body autopsied. A forensic pathologist determined that Annemarie had drowned and, although the circumstances surrounding her death were suspicious—given that Annemarie had injuries to the head, neck, torso, buttocks, right and left hands, right and left arms, right and left legs, right elbow, right forearm, left thigh, left knee, and lower back, and a broken rib—she was unable to be certain as to how Annemarie died.
Police continued their investigation and discovered that, contrary to Joseph’s claim that he and Annemarie were having no marital problems, Joseph was having an affair with a woman named Jessica Georg. They also discovered that four days before Annemarie’s death, Georg told Joseph he would have to end his marriage if he wanted to be with her and that Joseph said he would do so. Georg told police that Joseph said he was going to discuss a separation leading to a divorce with Annemarie the night she died and that the day after Annemarie died Joseph told Georg to delete any Facebook messages between them. Police also learned that Joseph had hidden Annemarie’s cell phone in order to conceal his affair.
The investigation revealed several more important facts: Joseph was the beneficiary of Annemarie’s life insurance policy and stood to receive more than $1.7 million in insurance proceeds; five days before Annemarie’s death, Joseph conducted an online search for “life insurance review during contestability period”; and four days later he performed an online search for “polygraph legal in which states.”
A police accident reconstructionist, attempted to reenact the alleged accident according to Joseph’s version of the events. He concluded that if Joseph’s account were true both Joseph and Annemarie would have been subjected to similar forces so that they both would have suffered similar injuries or have avoided injury altogether. In short, there was no explanation for how Annemarie could have suffered her injuries while Joseph was uninjured.
Approximately two years after Annemarie’s death, the Commonwealth charged Joseph with homicide.
Using the Note at Trial
During the prosecutor’s opening statement, she made reference to the note. During closing argument, she returned to the note and to the email Annemarie sent to herself: “I will reemphasize just like the defense said; he said, Annemarie is telling you what to do. He’s right, ladies and gentlemen. Annemarie told you if something happens to her, Joe.”
The jury was persuaded. It convicted Joseph of first-degree murder. Joseph filed post-trial motions, and the trial judge indicated that he thought the pretrial ruling by a different judge on the admissibility of the note was erroneous, but he was bound by the law of the case doctrine to respect it. He found the evidence of first-degree murder to be insufficient and granted a motion of judgment of acquittal on that charge.
The Pennsylvania Superior Court reinstated the conviction and held that the day planner note was “admissible under the state-of-mind exception” because it “tended to establish [Annemarie’s] then-existing belief, i.e., her state of mind, which was relevant to show the ill will that [Annemarie] perceived from Fitzpatrick, and, by implication, that their marriage was not going well.” After so holding, the court stated that the note “was not offered for the truth of the matter asserted and therefore was not hearsay.” The note either was hearsay or it wasn’t, but the court had it both ways.
The Superior Court found that the email was inadmissible because it was a statement of memory or belief to prove the fact remembered. This placed it outside the scope of Pa. R. Evid. 803(3), but the court deemed its admission to be harmless error.
Pennsylvania Supreme Court’s Hearsay Analysis
The Pennsylvania Supreme Court addressed the note as follows:
The statement at issue sub judice is not a routine state of mind expression. Rather, it is a compound statement that both demonstrates the speaker’s then-existing state of mind and, when offered for the truth of the matter asserted, proves a fact that, if considered on its own, would be inadmissible hearsay. * * * [H]ad Annemarie written that she was “afraid of Joe,” the statement (subject to other rules of evidence) would have been admissible to prove the truth of that assertion, that she was in fact afraid of Joe, so long as that fear was relevant to a contested issue in the case.
* * *
On the other hand, Annemarie’s statement also contained a factual assertion: that Fitzpatrick would be the perpetrator if something untoward or violent happened to her. The fact-based aspect of the statement, when offered for the truth of the matter asserted, is inadmissible hearsay.
The court observed that its prior opinions have not been consistent with respect to statements that are both statements of a current state of mind and also factual assertions. Having discussed prior cases, the court had to make a definitive ruling and did so:
The note fairly can be construed both as an expression of Annemarie’s then-existing impression of the state of her relationship with Fitzpatrick and as an expression of her fear of him. Had the statement simply reflected that mindset, it would be admissible under Rule 803(3). However, the statement identifies Fitzpatrick as her assailant and tangentially implicates his state of mind. This portion of the note is not admissible as state of mind evidence, but instead is an inadmissible factual averment. Simply put, it is hearsay.
* * *
[T]he fact-bound aspect of Annemarie’s note cannot be bootstrapped into admissibility merely because the statement contemporaneously contains some expression of Annemarie’s state of mind. If we held otherwise in this case, the resultant prejudice and potential for misuse by the jury would be apparent.
The court held that the admission of the note was not harmless and remanded for a new trial. A dissenting judge agreed with the majority’s analysis but would have held that the note was admissible to prove Annemarie’s fear if accompanied by a limiting instruction that the note could not be used to prove her killer. The dissent found harmless error in the fact that there was in fact no limiting instruction. The majority responded to the dissent in a footnote, saying, “attaching a limiting instruction to an otherwise inadmissible statement does not transform that statement into an admissible one.”
Conclusion
Dealing with statements that fall within Rule 803(3) in part but that also contain inadmissible assertions creates difficulty for both trial and appellate courts. In this case, two trial judges reached opposite conclusions about the admissibility of the note. The Superior Court agreed with the pretrial ruling, but the Supreme Court held that it was error.
There was sufficient evidence for a jury to convict Joseph without the note, but the Supreme Court reasoned that “the recurring emphasis placed upon Annemarie’s note by the prosecutor compels the conclusion that the prejudice was not de minimis. The note permeated the entire trial.” Because “[a] factual assertion or an implication of someone else’s state of mind do[es] not possess the hallmarks of reliability that attach to typical state of mind evidence,” the court concluded that the prejudice resulting from the jury’s consideration of “an unchallenged statement of questionable reliability as substantive evidence * * * is obvious.”