Fratello v. State
| Citation | 11 Fla. L. Weekly 2245,496 So.2d 903 |
| Decision Date | 22 October 1986 |
| Docket Number | No. 85-2082,85-2082 |
| Parties | 11 Fla. L. Weekly 2245 Charles FRATELLO, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Edward M. Kay of Kay and Bogenschutz, P.A., Fort Lauderdale, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert S. Jaegers, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal, following a verdict of murder in the first degree and a sentence to life imprisonment with a minimum mandatory term of twenty-five years after the prosecutor told the court that he was not seeking the death penalty. We affirm.
On December 20, 1984, Michael Johnson, the victim, went to the Seminar Lounge in Broward County, Florida, with his boss, Art Schaefer. Schaefer ran an auto body repair shop which was repairing a station wagon for appellant Charles Fratello. Fratello had purchased the used station wagon for his wife as a Christmas present and had expressed to Schaefer his concern that the repairs were taking longer than expected. Schaefer had taken appellant to his shop and returned appellant to the Seminar Lounge. Fratello, an auto wholesaler working for his brother in New Mexico, had flown in on December 19 and had hoped to start back for New Mexico on December 20.
That evening, the night of December 20 to December 21, 1984, Lori Ann Melton was employed at the Seminar Lounge as a nude dancer. She was introduced to appellant by Toni Miller, another nude dancer. Toni told Lori that appellant was named Charlie, and that he was the owner of the bar. Lori had never seen appellant before.
Ten or fifteen minutes before 2:00 a.m. on December 21, 1984, Lori Melton, seated at a table with her husband, Toni Miller and Toni's husband and two other dancers, saw appellant, Charles Fratello, engaged in a scuffle near the disc jockey booth with a man she identified as the victim, Michael Johnson. She testified that appellant grabbed the victim by the throat and dragged him into the Lounge's kitchen. She testified that a number of other people went into the kitchen for a short time but everyone came out except appellant and the victim. Appellant states Lori admitted she really did not have a clear view of this activity, but actually all she admitted to was that she had to move a small distance in order to see everything she described. Sergeant Michael Blair, who sat at the same table, with Lori, during the investigation that took place after the call to the police, testified that a wall prevented seeing into the kitchen from that table. Detective Kerry Coltau testified that a straight line could be drawn from the Meltons' table to the back wall of the lounge--a distance of sixty-nine feet--without touching any obstruction. Lori showed some confusion over whether Chris Ross was one of the men involved in the altercation.
William Murray, a large man employed as a bouncer, testified that a "disturbance" between the appellant and Michael Johnson, the victim, took place in the early morning hours of December 21, 1984. He testified the disturbance took place near the disc jockey booth and the short hall on the north of the lounge. When he asked appellant what was going on, appellant said it was being taken care of. Chris Ross, a manager, and Mark, a night manager, came up to the scene of the disturbance. Murray testified the disc jockey may also have come along. Appellant and the victim then went on into the kitchen. Murray had stopped one of Michael Johnson's punches by grabbing him with his hand and then let go when Johnson relaxed and put his arms down. According to Murray, only the victim and appellant went into the kitchen. Between two and five minutes later, Murray heard what he described as a crashing noise. Murray testified that from the time appellant and the victim went into the kitchen, until the time he heard the crashing noise, he did not see appellant come out of the kitchen. He did not see anyone else go into the kitchen other than appellant and the victim. Murray provided no testimony that would indicate the Meltons could not have seen the "disturbance." Later, Murray saw the lower portion of a person slumped over in the corner of the kitchen, but he continued to close the bar and did not tell anybody about seeing the person lying there.
Lori Melton's husband, Michael Melton, testified that he saw a fight begin about 2:00 a.m. on December 21, 1984. He testified that he saw a number of people, including appellant, "whopping" on the victim. He testified that the victim, Michael Johnson, was held around the neck by appellant, Charles Fratello, and was dragged by him around the corner into the "back," and Melton saw nothing more. Melton testified that although there were other individuals with appellant and the victim, these individuals, the disc jockey, the bouncer, the new night manager, and the other manager, named Chris, came running out from the back less than a minute after they rounded the corner. As to appellant and the victim, Michael Melton testified: "they were the only two that didn't come out at the time I saw the rest of them come out." Melton testified that he sat at the southwest corner of a table with his wife who was seated at the southeast corner of the table. Melton testified it wasn't much of a fight with one against four. They punched and kicked the victim. Melton testified he saw appellant being hit in the head, punched and knocked backwards. When appellant rejoined the fray, everyone grabbed the victim. However, Melton did see the victim being held around the neck by appellant and saw appellant drag the victim around the corner.
Immediately after the others returned from the back, they announced the bar was closed. During the five minutes or so Melton was waiting for his wife, the first girl out of the dressing room said: "They shot him." Melton testified he called the police because he thought it was bad enough the man was stomped on, and it wasn't necessary to shoot him. A tape of the telephone call, at 0207.03 hours on 21 December 1984, was introduced into evidence and played. At the time Melton was on the telephone, his wife testified that a little short drunk guy (Hernandez) acted like he wanted to talk, so her husband gave Hernandez the phone because the police kept switching him from operator to operator. Then appellant came walking around from behind the back of the lounge building. She testified that appellant asked what they were doing and she told him they were calling the police because there had been a shooting. Appellant said, "No, there hasn't." "Go on home, everything is fine." She testified that appellant then took the telephone away from Hernandez and hung it up. The emergency 911 recording contains appellant's voice saying, Michael Melton testified he had a "buzz" on, but he denied being drunk. Detective Kerry Coltau testified Mike Melton was not drunk. However, Melton was agitated.
When patrolman John Hawkins arrived at the Seminar Lounge, about four minutes after the telephone call, appellant, Charles Fratello, was sitting with Hernandez by a planter box in front of the Seminar Lounge. The officer testified that appellant "said that nothing was wrong and everything was o.k. and we can go ahead and go."
Disregarding appellant's statement the officer checked the bar together with another officer. When they reached the kitchen area they heard a "snorting noise," and when they looked they saw the victim lying face down in a pool of blood.
The medical examiner testified the victim died on December 22, 1984. The cause of death was a contact gunshot wound on the left side of the head with the bullet traveling from about one inch behind the victim's left ear, through his head, into the frontal lobe of his brain on the right side whence it was recovered. One stain of human blood was found on appellant's trousers.
Detective Kerry Coltau testified that appellant telephoned his brother and said, "It's bad, there's been a shooting in the club." The appellant then asked the detective to "[p]ray for me that the guy doesn't die". Appellant then told the detective that he couldn't remember anything that happened. Detective Kerry Coltau testified that he did not see anything that would indicate either Lori Ann Melton or Michael Melton was intoxicated.
The outside security door to the kitchen was locked by a dead bolt from the inside. A security gate outside of the outside security door was open a few inches.
The medical examiner testified that the victim was bruised over his right eye, and there was a contact gunshot wound on the left side of the head and a small abrasion on the left cheek.
Blood spatters were found on the floor where the victim was found and also on two of three telephone booths located outside of the Lounge. No gun was ever found. Blood samples were taken from appellant's clothing but were unusable. A .32 calibre shell casing was recovered from the floor of the kitchen, three feet from the victim. Swabs were rubbed over appellant's hands to check for gunpowder residue; however, this was done too late to result in a conclusive test.
William Murray testified that he saw appellant in the Lounge maybe a dozen times between March of 1984 and December 21, 1984.
Appellant presented testimony that the Broward Sheriff's Office was requested to send a helicopter to search a field behind the Lounge for a suspect. The helicopter pilot searched for about an hour and found no one. He was assisted by canine officers on the ground.
Appellant presented testimony of Floyd Matlick that Matlick was the owner of record of 100% of the stock of the corporation that owned the Seminar Lounge. He had known appellant for a couple of years, and testified that appellant was a good customer.
Todd Miller, Toni Miller's husband, testified that he was unemployed and receiving worker's...
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