State v. Germonto

Citations: 868 P.2d 50; 1993 WL 475462Docket: 900375

Court: Utah Supreme Court; November 15, 1993; Utah; State Supreme Court

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Frederick Joseph Germonto appeals his convictions for second-degree murder, second-degree robbery, and second-degree forgery. The Supreme Court of Utah affirms the convictions. In January 1989, 85-year-old Gilbert Lisonbee sought help to shovel snow and met Germonto at a mental health center. Germonto visited Lisonbee’s home on January 6 and returned on January 9, claiming he needed help finding an apartment. During this visit, Lisonbee, noticing Germonto's erratic behavior attributed to drug use, asked him to leave while wielding a knife. Germonto, still holding a crescent wrench, attempted to retrieve his coat and allegedly sustained a cut on his hand. Witnesses testified that Lisonbee had severe arthritis, making it unlikely he could effectively wield a knife. Germonto then struck Lisonbee multiple times with the wrench, resulting in Lisonbee's death from multiple blunt force injuries. After the attack, Germonto attempted to conceal Lisonbee’s body, stole a ring and checkbook, wrote a check for $273, and successfully cashed it. He later sought assistance from a friend, exhibiting suspicious behavior. Lisonbee’s body was eventually discovered by a companion and neighbor, with evidence of a violent struggle evident in the home.

The medical examiner indicated uncertainty regarding the sequence of the fatal blows to Mr. Lisonbee, suggesting he may have survived for one to fifteen minutes post-injury. Germonto faced multiple charges, initially for forgery in January 1989, followed by second-degree murder and robbery six months later. In January 1990, these charges were consolidated, leading to a jury conviction on May 8, 1990, for second-degree murder, robbery, and forgery. He was sentenced to five years to life for murder and concurrent terms of one to fifteen years for robbery and forgery, to be served consecutively.

Germonto's appeal, represented by the Salt Lake Legal Defender Association, raised several issues: the trial court’s failure to ensure a unanimous jury verdict for second-degree murder, the duplicitous nature of the robbery and burglary charges, improper joinder of the forgery case, a prejudicial jury instruction on the defense of habitation, and plain error regarding the prosecutor's comments on attorney-client communications. Additionally, Germonto submitted a pro se brief reiterating these points and introducing new claims, including allegations of perjury against the coroner and ineffective assistance from trial counsel.

The State requested to strike the pro se brief, but the court allowed it to remain and advised new counsel to consider its content when filing a supplemental brief. This new counsel raised issues concerning jury unanimity, charge joinder, the sufficiency of evidence for robbery, and prosecutorial conduct. Despite procedural deficiencies in the pro se brief, the court opted not to strike it but noted that the unsubstantiated claims within would not constitute reversible error if properly presented. Thus, the court focused on the arguments substantiated in the supplemental briefs by the new counsel.

Germonto challenges the sufficiency of the evidence supporting his robbery conviction, arguing that the State failed to demonstrate that the robbery was executed "by means of force or fear," as mandated by law. He contends that there was no evidence of force or fear in taking Mr. Lisonbee's ring and checkbook and claims that since Mr. Lisonbee was deceased at the time of the act, the statutory requirement of taking property from the person or immediate presence of another against their will could not be satisfied. The State counters that Germonto did not adequately contest the evidence supporting the jury's verdict. The court reviewed the evidence favorably towards the verdict and noted that a jury could find sufficient evidence, including reasonable inferences, to support the conviction for robbery as defined by Utah law. Robbery requires the unlawful and intentional taking of property from another's possession, through force or fear. The court referenced the case of State v. Smith, which outlines the elements of robbery. The court found that, despite Germonto's claims, the evidence presented, including medical testimony suggesting Mr. Lisonbee might have been alive shortly after the attack, allowed for a reasonable conclusion that Germonto committed robbery under the statutory definition.

The jury had the option to accept or reject Germonto's account, potentially concluding that he intended to take items from Mr. Lisonbee either before or during the altercation. Witnesses testified that Mr. Lisonbee consistently wore his diamond ring, which was confirmed to have left a mark on his finger after the attack, indicating it was taken. Additionally, evidence suggested that Mr. Lisonbee's checkbook was either on him or nearby during the incident. This supports the finding that the first element of robbery was satisfied. 

There was also sufficient evidence to demonstrate that the taking was against Mr. Lisonbee's will. Germonto acknowledged that he only seized the property after incapacitating Mr. Lisonbee, and indications that the struggle began upon Germonto's entry could lead a jury to conclude the taking was non-consensual. Evidence of a violent struggle throughout the house, including a vase broken over Mr. Lisonbee's head, further supports this conclusion. Germonto admitted to using force, which incapacitated Mr. Lisonbee, allowing him to remove the items.

Moreover, Germonto never claimed to have obtained the checkbook or ring lawfully. Even if the jury accepted that he took the items to escape, it could still be concluded that the taking was unlawful. Germonto argued against the necessity of having formed the intent to steal at the moment force was applied, but the statutory definition does not explicitly require this. Even if such a requirement existed, the evidence indicating the struggle began immediately upon Germonto's entry supports the inference of intent at that time.

Overall, the evidence collectively sustains all elements of robbery, and viewed favorably to the verdict, it provides no basis for overturning the jury's decision, allowing a reasonable jury to conclude that Germonto robbed Mr. Lisonbee.

The trial court instructed the jury on four statutory variants of second degree murder without requiring unanimity on the specific variant for conviction. Under Utah law, second degree murder can occur through various means, including intentional killing, causing serious bodily injury leading to death, engaging in depraved conduct that risks death, or causing death during a robbery. Germonto contends that the lack of unanimity instruction violated his constitutional right to a unanimous jury verdict. However, prior case law (State v. Russell) indicates that unanimity was not required for the first three variants, and since Germonto was convicted of robbery—a predicate felony for the fourth variant—the second degree murder conviction was unanimous by law. The court declined to address whether unanimity is required for the first four variants, as the conviction was valid under the fourth.

Regarding duplicity, Germonto was charged with robbery or burglary in an alternative format. He requested that the State elect between charges, arguing that they were inconsistent and lacked sufficient notice. The trial court denied this motion, asserting Germonto understood the charges and that they were not mutually exclusive. On appeal, Germonto claimed this "duplicitous" charge violated his due process rights and exposed him to double jeopardy. However, the court noted he did not raise these arguments during the trial, limiting the appeal's scope. Considering plain error affecting substantial rights, the court found no obvious harmful error, defining duplicity as combining distinct offenses in one count, which did not apply in this instance.

A jury may convict a defendant on a count without a unanimous verdict for a specific offense, potentially violating Sixth Amendment rights and impacting double jeopardy defenses. Duplicity in charges, while problematic, is not fatal to prosecution and can be remedied through procedural mechanisms such as electing charges or jury instructions. The trial court's denial of a motion to elect charges was found to be harmless error, supported by jury instructions directing jurors to consider the robbery charge first, ensuring no double jeopardy for the burglary charge. Germonto's adequate notice of charges was established through detailed allegations, and he did not pursue available procedural remedies for any perceived deficiencies.

Regarding the joinder of charges, Germonto was initially charged with forgery and later with murder and robbery, with the State moving to consolidate these charges under the premise they arose from a single criminal episode. Germonto contended the forgery was not part of the same episode as the robbery and murder, claiming prejudice from the joinder. However, the trial court found the offenses interconnected and ruled the joinder permissible under the applicable law prior to rule 9 of the Utah Rules of Criminal Procedure. The court's discretion in granting the joinder was upheld, as the offenses were closely related in time and objective, meeting the statutory definition of a single criminal episode.

The trial court granted a motion to join the informations, determining that the offenses committed by Germonto were part of the same criminal episode. Key supporting factors included the temporal proximity of the forgery to the robbery and homicide, as the forgery occurred shortly after these crimes. Attempts made to cash the forged check did not diminish this proximity. Additionally, the offenses shared a common objective—to unlawfully obtain property from Mr. Lisonbee. Despite Germonto proposing an alternative narrative, the jury’s guilty verdict for both robbery and forgery indicated a belief that his intent aligned with this objective. The second-degree murder conviction was also linked to the robbery, reinforcing the connection among the offenses.

The trial court's decision to join the charges was made prior to jury deliberation, but the court exercised discretion based on the evidence of shared time and objective. The State's theory posited a singular intent throughout the events, justifying the trial court's acceptance of this theory in its ruling. The case law cited, including State v. Cornish and State v. Ireland, illustrated distinctions in prior rulings regarding joinder based on time, location, and purpose. In contrast to those cases, this situation demonstrated sufficient closeness in all relevant aspects, validating the trial court's decision to join the informations. Germonto's reliance on State v. Gotfrey was noted, emphasizing the legislative intent behind joinder laws to minimize multiple prosecutions when justice can be effectively served.

Care must be taken to ensure that statutes are not misapplied in a way that compromises a defendant's right to a fair trial by improperly joining unrelated offenses. In the case of Gotfrey, the court determined that the charges against the defendant—raping two stepdaughters and committing sodomy on a stepson—were not sufficiently similar to warrant their consolidation due to differences in time, nature, and circumstances. Conversely, in the current case, the offenses occurred within hours, involved the same victim, and were allegedly motivated by the desire to acquire the victim's property, justifying their joinder.

Germonto claims ineffective assistance of counsel, arguing that his attorney failed to present a voluntary intoxication defense and did not object to the State's references to communications between him and his attorneys. To succeed in an ineffective assistance claim, a defendant must demonstrate both that counsel's performance was deficient and that it resulted in prejudice, as established in Strickland v. Washington. 

Regarding the voluntary intoxication defense, the court found no deficiency, noting that Germonto's counsel focused on a self-defense strategy that arose from a recent communication from Germonto. The defense counsel's choice aligned with the facts provided by Germonto just before trial, and the court deemed it a legitimate strategic decision. Thus, the choice not to pursue the intoxication defense was not ineffective, especially since the defense presented was consistent with Germonto's narrative. Additionally, Germonto's second claim regarding prejudice also failed under the Strickland test, as the court found no merit in it.

Germonto claims ineffective assistance of counsel due to failure to object to the prosecutor's questioning regarding his disclosure of a self-defense theory to his attorneys, arguing it violated attorney-client privilege. He also contends that counsel should have objected to the prosecutor's insinuation during closing arguments that he fabricated this theory shortly before trial. However, Germonto's claims fail under the prejudice prong of Strickland, which requires showing a reasonable probability that the outcome would have been different but for counsel’s errors. The jury found ample evidence supporting their guilty verdicts on robbery and murder, rejecting Germonto's self-defense theory. Furthermore, he did not demonstrate how the allegation of fabrication prejudiced him, as such claims are common and there is no evidence that this particular claim influenced the jury's decision. The timing of his disclosure to his attorneys was not shown to affect the jury's assessment of his credibility. Consequently, the ineffectiveness claim is rejected for lack of demonstrated prejudice.

Regarding allegations of prosecutorial misconduct, Germonto argues that the prosecutor's questioning and closing argument were prejudicial. However, even assuming counsel's failure to object to these actions was deficient, Germonto still could not show the requisite prejudice. The plain error standard requires that the error be obvious and affect substantial rights. The court found no obvious error in the prosecutor's questioning, which simply inquired about the timing of Germonto's self-defense disclosure without breaching attorney-client confidentiality. The question did not ask about communications with attorneys but focused on when Germonto first mentioned his defense narrative. Thus, both the ineffective assistance and prosecutorial misconduct claims were rejected.

A prosecutor is permitted to ask general questions during a trial, and the trial court did not err in allowing such a question to stand, as it did not harm substantial rights. Germonto, who voluntarily disclosed information relevant to his case, was not adversely affected by the prosecutor's inferences during closing arguments. Germonto challenged the jury instruction on the defense of habitation, claiming it lacked evidentiary support and improperly shifted the burden of proof. However, only the first objection was preserved for appeal. The court examined the evidence, which indicated that Germonto may have forcibly entered the home and suggested an intent to commit a felony, justifying the instruction regarding the use of deadly force in defense of habitation. The court found sufficient evidence to support the instruction, affirming that there was no error. Consequently, Germonto's convictions for second-degree murder, robbery, and forgery were upheld.

The legal document outlines several key points related to a criminal case. Firstly, the fifth variant of a statute is deemed inapplicable. The requirement for a unanimous verdict in criminal cases is reiterated from the Utah Constitution. Claims regarding ineffective assistance of counsel due to failure to object to jury instructions are not considered. Additionally, the document references Rule 404(b), stating that while evidence of other crimes is generally inadmissible to demonstrate character, it can be admissible for purposes like motive or intent. The trial court's decision to allow evidence of forgery is upheld.

It notes that certain provisions have been repealed and recodified, and discusses the conditions under which multiple offenses may be charged together in an indictment. The document also mentions that a defense of voluntary intoxication could conflict with a self-defense claim, suggesting that counsel's decision not to present intoxication as a defense was reasonable. The failure to object during testimony is viewed as a potential strategic choice, as objecting might imply the defendant had something to conceal.

The argument regarding burden-shifting in jury instructions is dismissed, with the assertion that allowing reasonable inferences does not equate to shifting the burden of proof. Lastly, the unusual application of a defense-of-habitation instruction, aimed at explaining a victim's actions rather than those of the defendant, is noted as having no harmful impact.