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09/20/78 COMMONWEALTH v. ROBERT FITZGERALD (AND A

September 20, 1978

COMMONWEALTH
v.
ROBERT FITZGERALD (AND A COMPANION CASE *FN1



Suffolk. Indictments found and returned in the Superior Court on May 11, 1976. The cases were tried before Tamburello, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Identification. Practice, Criminal, Directed verdict, Questioning by prosecutor, Argument by prosecutor, Instructions to jury. Evidence, Identification, Judicial discretion, Cross-examination.

The opinion of the court was delivered by: Abrams

Even though a witness at a criminal trial who had made extra-judicial photographic identifications of the defendants and statements implicating them in the crime testified affirmatively during the trial that the defendants were not the perpetrators of the crime, her extra-judicial identifications were not merely prior inconsistent statements but constituted substantive evidence which could be considered in determining whether motions for directed verdicts should be granted. [405-408]

Even though a witness at a criminal trial who had made extra-judicial photographic identifications of the defendants and statements implicating them in the crime testified affirmatively during the trial that the defendants were not the perpetrators of the crime, the admission of her prior identifications as substantive evidence did not violate the defendants' right of confrontation where she affirmed that she had made the earlier identifications and thus could be cross-examined concerning them [409]; nor were the defendants denied due process of law by the admission of the identifications as substantive evidence where the identifications were not made under suggestive conditions and where the defendants were given ample opportunity to discredit the identifications [409-410].

At a criminal trial, a witness's extra-judicial photographic identifications of the defendants, as well as her in-court testimony concerning identification, were sufficient to warrant the denial of the defendants' motions for directed verdicts even though the witness's testimony was inconsistent and contradictory. [410-411]

At a criminal trial, the Judge did not err in allowing the prosecutor to question a witness concerning her fear of testifying against the defendants where, in the circumstances, the possibility that fear was the explanation for the witness's repudiation of her extra-judicial photographic identifications of the defendants and the contradiction of her earlier statements was clearly a permissible inference and where there was nothing to suggest that the prosecutor asked the questions in bad faith or that he was implying personal knowledge concerning evidence not in the record. [411-413]

At a criminal trial, a prosecutor's question to a defense witness as to whether her daughter, who was an eyewitness to the crime, had required twenty-four hour police protection after the incident was not improper, even though excluded, where there was basis for the question in the record and where the defendants could not have been prejudiced by the question since evidence similar to that being sought by the question had earlier been admitted without objection. [413-414]

At a criminal trial, a prosecutor's question to a defense witness as to whether she had been offered money to change her testimony was not improper where there was a factual basis for the question even though the bribe had not been directly linked to the defendants. [414-415]

At a criminal trial, the Judge did not err in admitting evidence that a witness had found a bullet outside her door and had subsequently called the district attorney concerning the incident, with the implication that the witness had been threatened concerning her testimony, even though there was no evidence to link the threat to the defendants. [415-416]

At a criminal trial, remarks made by the prosecutor in his closing argument were neither improper nor prejudicial to the defendants. [416-424]

At a criminal trial, the Judge's instructions to the jury, viewed in the context of the entire charge, were not erroneous. [424-425]

After a jury trial, the defendants, Robert Fitzgerald and Joseph Chisholm, were convicted on indictments charging armed assault in a dwelling house with intent to commit a felony. G. L. c. 265, § 18A. They appeal their convictions pursuant to G. L. c. 278, §§ 33A-33G. Both defendants challenge the denial of their motions for directed verdicts on the ground that there was insufficient evidence to establish identity, and both contend that the prosecutor's examination of witnesses and his closing argument to the jury were improper and sufficiently prejudicial to require a reversal of the convictions. In addition, Fitzgerald contends that the trial Judge erred in instructing the jury on the elements of the offense. We conclude that there was no reversible error and affirm the convictions.

We summarize the testimony at trial which is not now at issue. On May 5, 1976, Helen McInnis planned to meet friends for an evening out and arranged for Doris Skeffington (Doris) and Kelly Barrett (Kelly), both twelve years old, to stay with her two year old son, Joseph. Kelly fell asleep on a couch near a window approximately ten minutes before midnight. Doris watched a late movie and then retired to Joseph's bedroom.

McInnis returned to her apartment at approximately 5:30 a.m. on May 6. She asked her friends to wait in the car until she was safely inside and arranged to signal them that she was all right by pulling the living room shade up and down. As she was signaling from inside the apartment, she leaned on the couch by the window. When she stood up, she realized that her hand was covered with blood.

She then ran to her son's bedroom where she found Doris and her son sleeping on the bed. There was blood all over the sheets. She ran back to the living room where she saw that the apartment was "a mess." She then saw Kelly lying on a loveseat beneath a bloodstained sheet. Kelly's arms were badly bruised, and she was covered with blood.

Kelly was taken to the hospital. She had sustained the type of skull fracture caused by a direct blow to the head. She had also suffered a fracture involving the bones of the left ear, and there was a laceration on the left side of her head and lacerations on her left arm.

An examination of the McInnis apartment revealed that the screen had been removed from one of the windows. Investigating officers also found a clip for an automatic pistol under the cushions of the couch by the window and a single loose bullet on this ...


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