Commonwealth v. Fidler

• Decision Date: 17 February 1987
• Citation: 503 N.E.2d 1302,23 Mass. App. Ct. 506
• Parties: COMMONWEALTH vs. JOHN FIDLER.
• Court: Appeals Court of Massachusetts

23 Mass. App. Ct. 506

503 N.E.2d 1302

COMMONWEALTH vs. JOHN FIDLER.

Appeals Court of Massachusetts, Suffolk.

October 10, 1986.

February 17, 1987.

COPYRIGHT MATERIAL OMITTED

Present: KASS, KAPLAN, & FINE, JJ.

John F. Cullen for the defendant.

Margaret Steen Melville, Assistant District Attorney, for the Commonwealth.

KAPLAN, J.

For the stabbings of Julie Greene, John Hennessy, and Stephen Celata in the early morning of Friday, July 15, 1983, the defendant, John Fidler, was indicted on three charges of assault and battery by means of a dangerous weapon (G.L.c. 265, § 15Ab), and three charges of armed assault with intent to murder (G.L.c. 265, § 18b). After extended trial to a jury, Fidler was convicted of the assault and battery by means of a dangerous weapon upon all three victims; he was convicted of the armed assault with intent to murder upon Julie Greene, but acquitted of that offense as regards John Hennessy and Stephen Celata. Fidler was sentenced to a term of fifteen to twenty years for the more serious crime against Greene, and, to run concurrently with that sentence, terms of five to seven years for the other crimes of which he was convicted. The main errors claimed are in the judge's denial of a motion at the close of the Commonwealth's case for a required finding of not guilty on all the counts, and in the denial of the motion, renewed at the close of all the evidence, in respect to the counts involving victims Hennessy and Celata. We affirm.

Following is an account of the case as the jury could see it. Lisa Buccieri left her home in West Roxbury about 9:30 P.M., July 14, and drove to Roslindale to pick up her friends Julie Greene and Gail Crosby. The party went to Charlie's bar in West Roxbury to greet a friend of Greene's, remained there for perhaps fifteen minutes, and then proceeded to Shawn's, a popular "action bar" on Chatham Street in the Quincy Market neighborhood of Boston, arriving some time after 11:00 P.M. The party had in mind meeting a young man from Cape Cod, but he was not at Shawn's. Present, however, were Hennessy and Celata, Roslindale residents well acquainted with Greene, and the young women socialized with them and others during the evening, punctuated with drinking and dancing.

Two noteworthy incidents occurred at Shawn's. Hennessy was accosted by a young man, whom he described as short, thin, and blond, wearing a green "tank" or "muscle" shirt (sleeves cut off at the shoulders), imprinted with "Charlestown Townies" and a figure of the Bunker Hill Monument. The man said, "Tell your friend he better watch out." Hennessy did not know the man and knew no reason for the threat. Again, shortly before closing time, say around 1:45 A.M., Lisa Buccieri was spoken to by a young man, thin, scarred face, broken teeth, wearing a green shirt. His arm was in a sling. Buccieri found his repetitious attempts to pick her up offensive, and rebuffed him sharply. Buccieri also saw at Shawn's that night a young man matching Hennessy's description of the fellow who uttered the threat, and in addition, a youth who, from her own and converging testimony by others, may be described as six feet, one or two inches, about 200 pounds, with sandy blond or brown hair, football build, wearing a pink or peach polo shirt and khaki or beige pants. Gail Crosby saw all three men mentioned. The witnesses Patrick K. Sullivan and Kevin Kelly, workers at Shawn's who were present on the night, confirmed that the man with the arm sling was at the bar and his name was John Awbry. Sullivan had seen the large man outside Shawn's about twenty yards from the entrance; his name was John Fidler. Kelly had seen the man with the tank shirt at the entranceway; his name was Warren Fitzpatrick. The proprietor of Shawn's, Shawyn Driscoll, said he saw Fitzpatrick leaving Shawn's as he, Driscoll, went in about 12:45 A.M. It was common ground that the three men were companions living in Charlestown. Some byplay in the evidence about the presence of the defendant Fidler at the bar — he was eighteen at the time and not eligible for admission — is recorded in the margin.¹

About 1:45 A.M., as Shawn's was closing down, Lisa Buccieri and Gail Crosby left with Dennis Miller and another man with whom they had been chatting. They turned left, that is, west on Chatham Street, and walked less than a block to the perpendicular intersection of that street with Chatham Row, an alley running south to State Street, which was parallel to Chatham Street. There was a lighted parking lot fronting on the westerly side of Chatham Row and some distance on the northerly side of State Street. The party of four crossed Chatham Row onto the parking lot and stood there, one or the other leaning or sitting on the hood of a parked car.

Julie Greene and her friends Hennessy and Celata left Shawn's a little after the party of four, but passed them. Greene intended to accompany these men to their car on or about Broad Street, which runs south from its perpendicular intersection with State Street; the intersection is at a place on the opposite side of State Street from the parking lot and a little to the west of it. Greene and the two men made their way to the State-Broad Street intersection and evidently began to enter Broad Street, with Celata perhaps a little ahead of Hennessy and Greene some steps behind Hennessy. Instantly without warning, they became the objects of a vicious attack which ended in near deaths.

Perhaps five or seven men came upon them in this poorly lighted place. A large man, two hundred pounds, over six feet, came at Celata from the left and "punched" him three times; the punches were in fact two strikes in the abdomen with a sharp instrument and one in the arm. Celata fell. He heard Greene behind him saying something like, "What's going on over there," saw Hennessy moving to help him, but then falling down. Hennessy, in turning to help Celata, saw the man in the tank shirt who had spoken the warning earlier. He saw a large man, over six feet, "fatty" build, in a bright pink shirt. He "passed out" from repeated stabbings — one in the stomach, two in the back and two in the chest — but could not swear who dealt them. He did not see what happened to Greene. Greene saw the trouble ahead, Celata "punched" and down, Hennessy bending over him and then attacked. She exclaimed, "Come on, what are you doing? Don't be assholes." Emerging from the melee and facing her was a large man in a pink shirt with light brown or blond hair. He paused, stood still, looked at her; she said, "What are you doing?" He plunged at her and struck three times. She doubled over, saw blood, staggered out to State Street, and collapsed.

Lisa Buccieri and Gail Crosby say they saw the incident from their position at the parking lot; Buccieri thought it was a "fake fight." Buccieri said she made out the three men she had noticed at Shawn's; Crosby saw the large man and the one with the tank shirt. The incident ended. After some minutes both Buccieri and Crosby saw two men walking, then running past them, evidently up Chatham Row and around the corner at Chatham Street in a westerly direction toward Houlihan's restaurant. They were the large man and the tank-shirted man. Buccieri saw the large man cover his face with his shirt as he passed; the other man made a similar movement with his hand. Buccieri shouted, "Why are you hiding your faces, there's no TV cameras here." Dennis Miller saw the incident; later he saw a couple of guys running and heard Buccieri saying something about a camera, but he didn't observe the men in detail. After going to the scene at State and Broad with the women, he ran to Shawn's to summon help.

Police cars and ambulances arrived shortly. Greene was taken to the New England Medical Center, Celata to Boston City Hospital, Hennessy to Massachusetts General Hospital, all in serious condition.

On Tuesday following the incident, Greene, having been let out of intensive care, but still in quite weakened condition, was interviewed by Detectives Carroll and Gleason. She gave a description of the man who faced her squarely and attacked question can be drawn from a discussion in Commonwealth v. Cook, 10 Mass. App. Ct. 668 (1980). That was a prosecution identified it positively as that of the large man. It was a picture of John Fidler. Three days later she went over the whole array of ten, and again identified the picture of Fidler. (At a later appearance in a courtroom, she identified Fidler among those present.)

The defense cross-examined witnesses for the Commonwealth in detail, attempting to attack (among other things) the police work in the case, the strength of the testimony of Buccieri and Crosby, and the capacity of Julie Greene to make a reliable identification. Greene testified that she was "under the influence," feeling good, as she left Shawn's; and she was weak, and under certain sedative drugs, when she first selected Fidler's picture. The defense offered a psychiatrist, Sheldon D. Zigelbaum, who tried to assess the effects of Greene's intakes of alcohol and medication on her ability to make a positive identification.²

1. Substance of the offenses. The defendant says there was such a lack of evidence tying him to the criminal events that the judge erred in denying his motion at the close of the Commonwealth's case for a required finding of not guilty of all the charges (the motion was repeated and denied at the close of all the evidence as to the crimes against Hennessy and Celata).³ In our view there was adequate evidence. Going direct to the assaults at State and Broad, we see Fidler and his friend Fitzpatrick singled out and identified from among a somewhat larger group of persons (which may have included Awbry) who together surprised the three victims on a quiet street and attacked them with the use of knives. Fidler himself is placed near Hennessy when Hennessy was stabbed in the back and chest. Fidler confronted Greene and...