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Commonwealth v. Dibenedetto

Supreme Judicial Court of Massachusetts, Suffolk

September 8, 2016


          Heard: May 5, 2016.

         Indictments found and returned in the Superior Court Department on May 21, 1986. Following review by this court, 458 Mass. 657 (2011), a motion for a new trial was heard by Robert A. Mulligan, J.

         A request for leave to appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk.

          Wendy H. Sibbison (Dennis A. Shedd with her) for the defendant.

          Zachary Hillman, Assistant District Attorney, for the Commonwealth.

          David B. Hird, Cecile Farmer, & Vanshika Vij, of the District of Columbia, Patrick O'Toole, Jr., & Evan Miller, for The Innocence Project, amicus curiae, submitted a brief.

          Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ. [1]

          BOTSFORD, J.

         On February 19, 1986, Joseph Bottari and Frank Chiuchiolo were shot multiple times and killed in the North End section of Boston. Louis Costa, Paul Tanso, and the defendant in this appeal, Frank DiBenedetto, were charged with their murders. On February 3, 1994, after a second trial, a jury found the defendant and Costa guilty of murder in the first degree of Bottari and Chiuchiolo.[2] [3] See Commonwealth v. DiBenedetto, 427 Mass. 414, 415 (1998) (DiBenedetto II).[4]

         In 2005, the defendant filed a motion for a new trial on the basis of newly discovered evidence, namely, deoxyribonucleic acid (DNA) evidence showing that both victims were excluded as contributors to the DNA that was found on the defendant's sneakers. On January 12, 2009, the motion judge, who also was the trial judge, denied without a hearing the motion in a written memorandum of decision and order. The defendant filed a gatekeeper petition pursuant to G. L. c. 278, § 33E (§ 33E), and on June 16, 2009, a single justice of this court granted leave to appeal the denial of the motion for a new trial to the full court. Following briefing and argument, this court vacated the order denying the motion and remanded the matter to the Superior Court for further findings.[5] See Commonwealth v. DiBenedetto, 458 Mass. 657, 659, 670 (2011) (DiBenedetto III).[6]

         Following remand, the Commonwealth did not seek an evidentiary hearing. The defendant submitted additional affidavits, one from an expert in DNA analysis who confirmed the conclusions reached by the defendant's first DNA expert in 2004, and another from a separate expert concerning the reliability of eyewitness identifications. After a nonevidentiary hearing, the motion judge again denied the defendant's new trial motion, explaining his reasons in a further memorandum of decision and order.

         The defendant filed a notice of appeal and a petition in the county court to reinstate his appeal in the full court. The Commonwealth opposed the petition on both procedural and substantive grounds, arguing that the defendant was required to seek leave to appeal from the renewed denial of his new trial motion through a second gatekeeper petition under § 33E. A single justice of this court agreed with the Commonwealth, treated the defendant's petition to reinstate his appeal as a second gatekeeper petition, and denied the petition, concluding that the defendant did not present a "substantial" claim that warranted review by the full court.[7] In September, 2015, after a series of additional motions and proceedings in the county court, the defendant filed a motion in the full court to reinstate his appeal. The court thereafter ordered briefing "on the question whether the defendant is entitled to reinstatement of his appeal and on the merits of the defendant's underlying claims."

         In the discussion that follows, we consider first whether the defendant is entitled to have his original appeal to the full court from the denial of his motion for a new trial reinstated following the court's remand for further findings. We conclude that reinstatement of the appeal is appropriate, even though the court did not expressly retain jurisdiction. We then consider the defendant's claim that he is entitled to a new trial based on the new DNA evidence, and conclude that the motion judge did not abuse his discretion in denying the defendant's motion.[8]

         1. Background.

         The facts of this case are set out in some detail in DiBenedetto II, 427 Mass. at 416-420, and DiBenedetto III, 458 Mass. at 658-663. We summarize them here. Around 9:30 £.M. on February 19, 1986, a Boston police officer found the bodies of the victims in Slye Park in the North End section of Boston. Chiuchiolo had been shot seven times, including five shots to the head, and Bottari had been shot sixteen times, including six shots to the head. Three different guns had been used to shoot each victim: two .380 caliber semiautomatic pistols and a .22 caliber revolver. When police responded to the scene shortly after the shooting incident ended, the victims' bodies were surrounded by pools of blood and multiple spent shell casings.

         Joseph Schindler, who lived in an apartment building on one side of Slye Park, observed much of the shooting incident as it took place in the park below him. He testified that around 9:30 P..M. that evening, he was sitting in his third-floor apartment, from which he had an unobstructed view of the park. He heard four or five "'cracks or pops' that he thought were fireworks, " DiBenedetto III, 458 Mass. at 660, and he looked out his window and "saw orange-red flashes in the area of the hand of a man whom he later identified as [the codefendant, ] Costa." Id., quoting DiBenedetto II, 427 Mass. at 416. Schindler saw five men running in the park, two of whom fell to the ground at separate times in different locations. Each of the other three men, the shooters, left the park and walked toward Boston Harbor after each descended a series of staircases on the other side of the park. In the course of their descent, each shooter at one point walked facing toward Schindler so that he could observe their faces and bodies -- their front profile -- one at a time. However, before the last person -- later identified by Schindler as the defendant -- descended all the sets of stairs and left the park, he stopped and turned around, returning to the area where Chiuchiolo's body lay on the ground. This individual, whom we refer to as the third shooter, "stood bent at the waist so that he was just a few inches from the head area of the prone [Chiuchiolo]. Schindler then saw four to six flashes accompanied by the same sound he had initially heard." DiBenedetto III, 458 Mass. at 660 & n.8. The park was lit by artificial lights, and Schindler estimated that he observed the shooting incident and the three shooters in the park over the course of a three- to five-minute period, including a three- to five-second period during which the defendant stood facing him as he was walking down the stairs and leaving the park; Schindler testified that his ability to identify the defendant's face principally depended on this three- to five-second observation.

         After the three shooters left Slye Park, Schindler telephoned the police, who reported to the scene and interviewed him regarding his observations. That night, Schindler provided descriptions of the three men whom he saw leaving the park, descriptions that were not "entirely accurate, " id., but the following day, Schindler went to the police station and informed police officers that, given the opportunity, he could identify the three men.[9] He later identified the assailants as DiBenedetto, Costa, and Tanso on multiple occasions, including identifying each man individually in a separate lineup conducted at the police department, each in pretrial court room proceedings, and Costa and the defendant at trial. Id.

         Richard Storella, who was at one time a close friend of the defendant and Costa, testified as follows. Bottari and Chiuchiolo told him to set up a "drug buy" with the defendant, during which they would rob the defendant of the drugs. Storella set up the purported drug buy meeting for around 9 P.M. on February 19, 1986, but he first informed the defendant of the victims' intention to steal the drugs. With that knowledge, the defendant formed a plan with Costa, Tanso, and Storella to meet with the victims in Slye Park and shoot and kill them on sight. Around 8 P.M. on February 19, these four men met at Enrico Ponzo's house and readied their weapons and ammunition, including a .22 caliber revolver that Storella had retrieved and given to Tanso, and hollow point bullets. Storella then accompanied the men to Slye Park but remained outside the park itself, from where he witnessed each of the three men fire shots at the victims when the victims arrived; Storella ran out of the park as DiBenedetto ran toward Chiuchiolo. The following day, Storella heard Costa, Tanso, and the defendant talking about the incident. During their conversation, each of them stated that he had shot each victim. DiBenedetto III, 458 Mass. at 659, quoting DiBenedetto II, 427 Mass. at 415-416. Between Storella's first interview with the police and the 1994 trial, however, he had given five "different and inconsistent accounts of what he had seen that night, including one in which he claimed that he himself had been one of the murderers." DiBenedetto III, supra, quoting DiBenedetto II, supra. Storella had been granted immunity from prosecution, including prosecution for murder, in exchange for his "truthful" testimony against the other three. DiBenedetto III, supra.

         The defendant's motion for a new trial centers on a pair of Nike sneakers that were introduced in evidence for the first time during the 1994 trial.[10] Schindler testified that the third shooter, i.e., the defendant, "wore white Nike brand sneakers that had become 'grayish with age, ' identifiable by the trademark red 'swoosh' design on them." DiBenedetto III, 458 Mass. at 660. When the defendant was arrested in his apartment four days after the shooting incident, he was wearing a pair of white Nike sneakers that Schindler identified at trial as "similar" to the shoes the third shooter was wearing on the night of the incident. Id. We repeat here our description in DiBenedetto III of the testing of the Nike sneakers:

"At the time DiBenedetto's sneakers were seized in 1986, they were sent to the Boston police crime laboratory (crime lab) for testing. A senior criminalist employed by the crime lab visually examined the sneakers for the presence of blood, but observed nothing remarkable and specifically observed no stains that could be tested for the presence of blood. No chemical testing of the sneakers was conducted at that time.
"On December 31, 1993, on request by the prosecutor and days before the retrial of DiBenedetto and Costa was scheduled to begin, David L. Brody, the director of the crime lab, performed a preliminary test for the presence of blood on the sneakers. The test was conducted with the use of the chemical phenolphthalein and hydrogen peroxide, an oxidizing agent. Brody's test of the right sneaker yielded no positive results, but an outside edge of the sole of the left sneaker tested positive, meaning the result indicated the presence of blood. George Abbott, an expert retained by the defendant, however, was unable to replicate this result on the left sneaker, but identified a small area on the sole of the right sneaker that tested positive.
"The type of phenolphthalein test performed by Brody and Abbott may return a false positive if applied to certain plant substances, referred to as 'plant peroxidase.' Moreover, the test does not distinguish between human blood and any other animal blood. It is only possible to make that type of distinction by performing one or more additional, confirmatory tests for the presence of human blood, but none was performed. Immediately before the second trial, the defendants' counsel moved to suppress any evidence relating to the phenolphthalein test results and in effect renewed the motion at trial; their argument, made most forcefully at trial, was that the evidence as presented did not allow a reasonable inference that any blood on DiBenedetto's sneakers was in fact the blood of 'any relevant party' present at Slye Park on February 19, 1986. The motion to suppress was denied, the defendants' ...

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