Com. v. DiBenedetto

• Citation: 605 N.E.2d 811,414 Mass. 37
• Parties: COMMONWEALTH v. Frank DiBENEDETTO (and three companion cases 1 ).
• Decision Date: 28 December 1992
• Court: United States State Supreme Judicial Court of Massachusetts

Page 811

605 N.E.2d 811

414 Mass. 37

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

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 15, 1992.

Decided Dec. 28, 1992.

Wendy Sibbison, Greenfield, for Frank DiBenedetto.

Andrew L. Mandell, Worcester, for Louis R. Costa.

Jane A. Sullivan, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

ABRAMS, Justice.

The defendant, Frank DiBenedetto, is one of three defendants convicted of murder in the first degree for the killing of Joseph Bottari and Frank Angelo Chiuchiolo. See Commonwealth v. Tanso, 411 Mass. 640, 583 N.E.2d 1247, cert. denied, 505 U.S. 1221, 112 S.Ct. 3033, 120 L.Ed.2d 902 (1992). The main issue in Tanso was whether the "the trial judge's admission in evidence, over objection, of the deposition testimony of an unavailable witness who had not been cross-examined" was error. We determined that "the admission of the deposition testimony violated the defendant's right to confrontation under the Sixth Amendment to the United States Constitution." Id. at 641-642, 583 N.E.2d 1247. DiBenedetto asserts that his case is governed by our opinion in Tanso. The Commonwealth concedes that, as a result of our holding in Tanso, the admission of the deposition violated DiBenedetto's right to confrontation, but argues that confrontation rights are subject to harmless error analysis. The Commonwealth contends that the admission of the deposition testimony was harmless error. Therefore, the Commonwealth asserts that we should affirm DiBenedetto's convictions. We conclude that the admission of the uncross-examined deposition does not meet the standards necessary for a constitutional error to be determined to be "harmless error." Accordingly, DiBenedetto is entitled to a new trial. We comment briefly on DiBenedetto's claim that double jeopardy precludes his retrial for murder in the first degree. ² We reject that argument.

Louis Costa, the third defendant, also appeals from two convictions of murder in the first degree. See Commonwealth v. Tanso, supra. Costa challenges the trial judge's admission in evidence, over objection, of the testimony from the probable cause portion of the juvenile transfer hearing of a witness who was unavailable at the time of trial. Costa asserts that the scope of cross-examination at the juvenile transfer hearing was not adequate because the judge limited it. He also challenges his transfer from the Juvenile Court. For the reasons stated in the opinion, we conclude that the testimony from the juvenile transfer hearing would have been admissible had the scope of the cross-examination not been restricted by the judge. As we read the record, Costa did not have a full and therefore an adequate opportunity to cross-examine the witness. Accordingly, Costa is entitled to a new trial. We also comment briefly on Costa's challenges to his transfer from the Juvenile Court. We reject that claim.

1. The admission of the uncross-examined deposition as harmless error. ³ The Commonwealth argues that a claim of Federal constitutional error under the confrontation clause is subject to a harmless error analysis. ⁴ The Commonwealth asserts that the admission of Storella's uncross-examined deposition was harmless error. We agree with the Commonwealth that error in the admission of the uncross-examined deposition is subject to a harmless error analysis. We do not agree that the admission of the uncross-examined deposition testimony against DiBenedetto meets the constitutional test for "harmless error."

The Supreme Court has held that constitutional violations that do not affect the "substantial rights" of a party should be analyzed to determine whether the error was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). In Delaware v. Van Arsdall, 475 U.S. 673, 682, 106 S.Ct. 1431, 1437, 89 L.Ed.2d 674 (1986), the Supreme Court held that "the denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case." See also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Thus, the improper admission of uncross-examined testimony, in violation of a defendant's confrontation rights, will not be reversible error "if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Van Arsdall, supra, 475 U.S. at 681, 106 S.Ct. at 1436.

To determine whether the improper admission of uncross-examined testimony was harmless beyond a reasonable doubt, the Supreme Court listed factors to be considered. "These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Id. at 684, 106 S.Ct. at 1438.

In applying the factors listed above to this case, we note that Storella's testimony was important to the Commonwealth's case: the Commonwealth itself so stated in requesting that Storella be deposed according to Mass.R.Crim.P. 35, 378 Mass. 906 (1979). Storella's deposition indicated that he knew DiBenedetto, could identify DiBenedetto, and could describe the scene of the crime. Storella alone provided the motive for the murders. Significantly, only Storella's deposition identified DiBenedetto as the person who shot Bottari. ⁵ Thus, the deposition testimony was not cumulative. Additionally, we note that, after deliberations were in progress, the jurors asked that the deposition testimony be reread to them.

Courts that have construed the language in the Chapman line of cases have held that the government bears the burden of proving that the error was not a substantial factor in the jury's decision to convict. ⁶ See Brown v. Dugger, 831 F.2d 1547, 1554 (11th Cir.1987); United States v. Kelly, 790 F.2d 130, 138 & n. 6 (D.C.Cir.1986). The Commonwealth's burden was to prove that the admission of the uncross-examined deposition was not a substantial factor in the jury's decision to convict. The Commonwealth has not met its burden of proving the admission of the deposition was "harmless error." We conclude DiBenedetto must have a new trial.

2. Admissibility of Storella's prior recorded testimony. ⁷ Costa was born in October, 1969; on the date of the commission of the offenses with which he was charged, Costa was sixteen years old. Therefore, the cases against him began as juvenile proceedings. Storella testified at the probable cause portion of the transfer hearing and limited cross-examination was allowed. Costa was transferred and tried as an adult. Prior to trial, Costa filed a motion in limine seeking to exclude the prior recorded testimony of Storella given at the probable cause portion of the juvenile proceedings. After a hearing regarding Storella's availability, the trial judge found that Storella was unavailable. The judge ruled that Storella's prior recorded testimony could be used, subject to conditions. ⁸ At Costa's trial, over objection of Costa's counsel, the judge admitted the prior recorded testimony from the probable cause hearing in the Juvenile Court against Costa. Four days after deliberations began, the jury returned verdicts of murder in the first degree against Costa. Costa argues that he did not have a full and, therefore, an adequate opportunity to cross-examine the witness at the juvenile transfer hearing and therefore admission of that prior recorded testimony was error. We agree.

In Commonwealth v. Mustone, 353 Mass. 490, 233 N.E.2d 1 (1968), we held that, in the event of a witness's unavailability, "his testimony at the prior proceeding is admissible at the defendants' trial under general principles of the law of evidence, if the former testimony can be reproduced with substantial completeness and accuracy. No violation of the defendants' constitutional right of confrontation will be involved." Id. at 492, 233 N.E.2d 1. Storella's testimony was under oath, given before a judge, and recorded by a stenographer. Thus, the testimony was admissible against Costa at trial unless the defendant did not have a full and, therefore, an adequate opportunity to cross-examine the witness at the time of hearing. Id. at 493, 233 N.E.2d 1. We turn to the transfer hearing.

Before Storella was brought before the juvenile court for his testimony, defense counsel suggested that the judge appoint an attorney for the witness. Defense counsel stated that Storella had been offered immunity only with respect to one crime, conspiracy to rob DiBenedetto, and that the witness should be made aware of his constitutional right against self- Defense counsel also acknowledged that there were "going to be allegations that this particular fellow [Storella] was a participant, and I think he should know that perjury in a capital crime is punishable by life imprisonment." The Commonwealth objected to the appointment of a lawyer for Storella. The judge asked what promise the Commonwealth had made to the witness in order to secure his testimony. The prosecutor answered that they had offered Storella immunity on the charge of conspiracy to rob DiBenedetto. ⁹ The prosecutor also stated that the witness knew that he ran "the risk in his testimony that if he is implicated as a participant in the murder that he has no promise, reward or offer of inducement with regard to those charges." The prosecutor noted that Storella would turn eighteen in approximately one month. Defense counsel argued that no lawyer representing Storella would allow his client to testify without a general grant of immunity for all crimes. In addressing defense counsel's concerns, the...