Commonwealth v. Frank Dibenedetto (and Three Companion Cases 1).

458 Mass. 657

941 N.E.2d 580

COMMONWEALTH

v.Frank DiBENEDETTO (and three companion cases 1).

SJC–10658.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 5, 2010.Decided Jan. 11, 2011.

Wendy H. Sibbison, Greenfield (Dennis Shedd, Lexington, with her) for Frank DiBenedetto.Elianna J. Nuzum (David J. Apfel with her), Boston, for Louis R. Costa.Kris C. Foster, Assistant District Attorney, for the Commonwealth.Present: MARSHALL, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.²BOTSFORD, J.

In February, 1994, a jury found the defendants, Frank DiBenedetto ³ and Louis R. Costa, guilty of murder in the first degree of Joseph John Bottari and Frank Angelo Chiuchiolo.⁴ The events giving rise to the charges occurred on February 19, 1986. The defendants were first tried in 1988, and a jury found them both guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. This court reversed the convictions.⁵ Commonwealth v. DiBenedetto, 414 Mass. 37, 38–39, 44, 605 N.E.2d 811 (1992) ( DiBenedetto I ).

The defendants were tried again in 1994. Richard Storella, who had been unavailable at the defendants' first trial, testified in person. The second trial also included, for the first time, expert testimony concerning the possible presence of blood on the sole of one of DiBenedetto's sneakers. That trial resulted in the guilty verdicts of February, 1994. This court affirmed those convictions, and denied the defendants' relief under G.L. c. 278, § 33E. Commonwealth v. DiBenedetto, 427 Mass. 414, 416, 693 N.E.2d 1007 (1998) ( DiBenedetto II ).⁶

In 2005, the defendants filed motions for a new trial on the basis of newly discovered evidence, and in particular, deoxyribonucleic acid (DNA) evidence. In 2009, the Superior Court judge who had presided over the defendants' second trial denied their motions. DiBenedetto filed a gatekeeper petition pursuant to G.L. c. 278, § 33E, seeking leave to appeal from the denial of his motion for a new trial, which a single justice of this court allowed. Costa then filed his own gatekeeper petition, seeking the same relief as DiBenedetto. A different single justice allowed the petition, and ordered Costa's appeal consolidated with DiBenedetto's. For reasons we shall discuss, we remand the cases to the Superior Court for further findings and, on the Commonwealth's request, an evidentiary hearing on the defendants' proffered DNA evidence.

1. Background. Our focus is on the defendants' second trial. We begin with a brief summary of the facts as the jury could have found them, drawing heavily on the summary set forth in DiBenedetto II.

a. Overview of the facts. Around 9:30 p.m. on February 19, 1986, police found the bodies of the victims, Chiuchiolo and Bottari, in Slye Park in the North End section of Boston. The bodies were surrounded by blood and multiple spent bullet casings. Chiuchiolo had been shot seven times, five times in the head, and Bottari had been shot sixteen times, six times in the head.

Richard Storella, now available as a witness, see note 5, supra, “testified that he knew the defendants and that on the night of February 19, 1986, he had seen them, along with Paul Tanso, shoot the victims in Slye Park in the North End of Boston. According to Storella, the defendants told him that they had each shot both victims. Storella 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. He had been given immunity from prosecution.” ⁷ DiBenedetto II, 427 Mass. at 415–416, 693 N.E.2d 1007.

There was another witness who testified to having seen the murders. “At 9:30 p.m. that night, Joseph Schindler, a Boston lawyer, was sitting in his third-floor apartment overlooking the park when he heard four or five ‘cracks or pops' that he thought were fireworks. He had an unobstructed view of the park from his apartment. He looked out and saw orange-red flashes in the area of the hand of a man whom he later identified as Costa. He went to another, darkened room to obtain a better view. The sounds continued. The park was lit by the moon and artificial lights. He saw five men. Two of them fell to the ground, and the other three left the park. Leaving the park, the defendants came toward Schindler, first Costa, then Tanso, and finally DiBenedetto.” Id. at 416, 693 N.E.2d 1007. Before the man Schindler later identified as DiBenedetto left the park, however, Schindler saw him stop and turn around. The man moved back to one of the men who lay prone beside the benches,⁸ and stood bent at the waist so that he was just a few inches from the head area of the prone individual. Schindler then saw four to six flashes accompanied by the same sound he had initially heard. “Schindler called the police. He described the defendants to the police, descriptions which were not entirely accurate, and later identified them in separate lineups and in three different court proceedings.” Id. Schindler estimated that the entirety of his observations of the men in the park—beginning when he first heard shots and continuing until he finally saw each of them walk out of the park one at a time and down to Boston Harbor—took place within a three-to-five minute period.

b. Sneaker evidence. Schindler testified at the 1994 trial that on the night in question, February 19, 1986, the man he identified as DiBenedetto ⁹ wore white Nike brand sneakers that had become “grayish with age,” identifiable by the trademark red “swoosh” design on them. There was evidence that when DiBenedetto was arrested four days later, on February 23, he was wearing a pair of stained, white Nike sneakers that were eventually seized by the police and introduced as evidence at trial. When shown the sneakers at trial, Schindler testified that they “looked similar to the footwear Mr. DiBenedetto was wearing on February nineteenth.”

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' argument on the issue at trial overruled, and the jury heard evidence from Brody and from Abbott about the testing of the sneakers for blood and the respective experts' opinions concerning the results of the testing. In her closing, the prosecutor argued:

“Should [the sneakers] have been chemically tested in [1988, the year of the first trial]? You bet your boots. Any reason they weren't? Not to my satisfaction. And that, ladies and gentlemen is why the request was made for an objective examination, a chemical test. Not a subjective, what-do-you-see test, but something that is an objective test for the presence of blood. The defendants ask you to speculate how they got there. Could have been in the restaurant. Remember that witness? Could have been veal blood. Except, then what do you learn? First of all, he didn't even take the sneakers home. They go up over the fridge. ‘No, no, that didn't happen.’ ‘Well, didn't you tell Detective Ross that?’ ‘Well, now I don't remember.’ Remember that testimony? And you also know that if that had happened in any restaurant, those sneakers would be covered, covered.... Feces? When there's no fecal matter that is seen? Feces? How do you get feces on both feet? Does that make any sense? Again, what evidence is there that that even happened? You are being asked to speculate. Plant peroxidase. Eliminated. And you heard how that's eliminated. Sure. [The defense expert] wants you to believe, oh, no, there's microorganisms. What did he base that on? Was that credible? ... And so, ladies and gentlemen, what do you find out? That blood is present. Defense wants you to speculate. Remember those questions by [Costa's defense counsel]? Feces? Pepperoni? Meat Sauce? Is there one shred of evidence that Frank DiBenedetto came into contact with any of those things? No. Are the sneakers meant to be the be-all and end-all? No. But, ladies and gentlemen, they are meant to offer you a small bit of corroboration. ...