Com. v. DiBenedetto

• Citation: 693 N.E.2d 1007,427 Mass. 414
• Parties: COMMONWEALTH v. Frank DiBENEDETTO. (and three companion cases 1 ).
• Decision Date: 08 May 1998
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1007

693 N.E.2d 1007

427 Mass. 414

COMMONWEALTH v. Frank DiBENEDETTO.

(and three companion cases ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 3, 1998.

Decided May 8, 1998.

Wendy Sibbison, Greenfield, for Frank DiBenedetto.

Charles W. Rankin, Boston, for Louis R. Costa.

Joseph M. Makalusky, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and IRELAND, JJ.

WILKINS, Chief Justice.

The defendants, convicted of deliberately premeditated murder in the first degree of Joseph John Bottari and Frank Angelo Chiuchiolo, appeal, raising a multitude of issues. ² We reversed the defendants' previous convictions of murder in the first degree because recorded testimony of Richard Storella, a witness who was unavailable at trial, had been improperly admitted. Commonwealth v. DiBenedetto, 414 Mass. 37, 41, 44, 605 N.E.2d 811 (1992). See Commonwealth v. Tanso, 411 Mass. 640, 650, 583 N.E.2d 1247, cert. denied, 505 U.S. 1221, 112 S.Ct. 3033, 120 L.Ed.2d 902 (1992) (retrial ordered).

By the time of the defendants' retrial, Storella was available. He 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. ³ According to Storella, the defendants told him that they had each shot both victims. Storella had given a number of 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. With good reason, the defendants strenuously challenged the reliability of Storella's testimony.

Another witness testified that he had watched the murders take place. 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. 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.

The major question for the jury was whether the defendants were two of the murderers. Convictions depended on (a) the credibility of Storella, who knew the victims and claimed to have witnessed the killings, but had repeatedly and admittedly lied about the killings and (b) the reliability of Schindler's identification of the defendants, whom he did not know. The only other incriminating evidence, the subject of vigorous challenge in this appeal, was marginally instructive testimony that a small trace of blood was found on one of DiBenedetto's sneakers.

Able appellate counsel have raised multiple challenges to various decisions and rulings in the trial court. Many of their arguments fail because the judge made rulings that lay within his discretion. There was no prejudicial error. We affirm the convictions and deny relief under G.L. c. 278, § 33E.

1. The defendants object to the admission of evidence indicating the presence of blood on one of DiBenedetto's sneakers. They argue first that the evidence should have been suppressed because it was the product of an unconstitutional arrest. ⁴ They next argue that, in any event, the tests that led to the indication of blood on DiBenedetto's sneaker were conducted in violation of the pretrial conference report and consequently their admission violated the defendants' due process rights. They also claim that the Commonwealth did not take adequate steps to protect the sneakers from contamination. We shall not discuss this last point beyond stating that the defendants were able fully to explore the possibility of contamination at trial. It was for the jury to decide what weight, if any, to give the tests. See Commonwealth v. Ortiz, 424 Mass. 853, 860, 679 N.E.2d 1007 (1997).

On February 23, 1986, between 5 A.M. and 6 P.M., police executed a search warrant and a warrant for DiBenedetto's arrest at an apartment on North Margin Street in Boston. A judge later ruled that the search warrant was defective and suppressed all evidence seized at the apartment. The sneakers were taken from DiBenedetto at the police station when he was booked. The lawfulness of this seizure depends on the validity of his arrest made in execution of the arrest warrant. If the arrest was lawful, any clothing that could have been evidence was properly taken from him. See Commonwealth v. Gliniewicz, 398 Mass. 744, 750, 500 N.E.2d 1324 (1986).

The defendants argue that the police lacked a constitutionally sufficient basis for believing that DiBenedetto was in the North Margin Street apartment when they entered it and arrested him. The police were acting on information about the apartment obtained from an identified person who knew DiBenedetto, had verified that DiBenedetto had a bedroom there, and told the police that he had been in that bedroom with DiBenedetto four days before the arrest. There was no reason to believe that DiBenedetto had left. A police officer confirmed that the name DiBenedetto was assigned to the apartment. The early morning entry and the fact that the police found the front door was ajar justified an expectation that someone was likely to be there.

This evidence surely meets the requirement of the Fourth Amendment to the United States Constitution that, if an arrest warrant is issued on probable cause (a point not challenged here), the police may enter a suspect's dwelling if they have reason to believe that the suspect is there. Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388-1389, 63 L.Ed.2d 639 (1980). The arresting officer need not have probable cause to believe the suspect is at home. Id. at 602, 100 S.Ct. at 1388. The evidence here easily meets the "reason to believe" standard of the Payton case. See United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir.), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995) ("officers may presume that a person is at home at certain times of the day"); United States v. Terry, 702 F.2d 299, 319 (2d Cir.), cert. denied sub nom. Williams v. United States, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304, and cert. denied sub nom. Guippone v. United States, 464 U.S. 992, 104 S.Ct. 482, 78 L.Ed.2d 680 (1983) (police need not "first conduct a thorough investigation to obtain evidence of an arrestee's actual presence before entering his residence").

This court has not yet decided whether art. 14 of the Massachusetts Declaration of Rights requires that police, with a valid arrest warrant, have more than reason to believe a suspect is in a dwelling. See Commonwealth v. Acosta, 416 Mass. 279, 282, 627 N.E.2d 466 (1993). The defendants argue that art. 14 requires that the police have probable cause to believe that the subject of an arrest warrant is present. We need not answer this question because the information the police had when they entered the apartment satisfied even the higher probable cause standard.

The next question is whether the judge erred in admitting expert testimony that a test showed the presence of blood on one of DiBenedetto's sneakers. Neither the sneakers nor testimony concerning tests conducted on them were introduced at the first trial. In fact, the Commonwealth did not conduct its testing until December 31, 1993, shortly before the second trial. This date was well after the May 27, 1993, deadline, set pursuant to the pretrial conference report, for the delivery of "[s]cientific test reports" and the names of all Commonwealth witnesses.

On December 31, 1993, David Brody, director of the Boston police crime laboratory, tested the sneakers for the presence of blood. No test had been conducted on the sneakers since the laboratory received them on February 26, 1986. There was no apparent sign of blood on either sneaker. The test, a sensitive one using phenolphthalein followed by hydrogen peroxide, indicated blood on a small portion of the left sneaker and no blood on the right one. The blood was not necessarily human. Brody wrote a report that was promptly delivered to DiBenedetto's counsel.

One week later, in Brody's presence, a defense expert tried unsuccessfully to replicate Brody's tests. He found nothing on the left sneaker (where Brody had obtained a positive result), but he obtained a positive result on the right sneaker (where Brody's tests had produced a negative one). Brody testified that the defense expert had probably found nothing on the left sneaker because Brody's wiping of it had removed all traces of blood. ⁵

There is no doubt that the Commonwealth failed to comply with the pretrial conference report. The question is whether the defendants were prejudiced by the breach. See Commonwealth v. Gliniewicz, 398 Mass. 744, 748-749, 500 N.E.2d 1324 (1986). In the Gliniewicz case, the pretrial conference report explicitly obliged the Commonwealth to make certain evidence available for inspection. In the course of its testing, the Commonwealth destroyed a portion of the defendant's boots with the result that the defendant could not possibly duplicate the tests. We held that the Commonwealth's test results should not have been admitted. Id. at 749, 500 N.E.2d 1324. "[W]hen potentially exculpatory evidence is lost or destroyed, a balancing test is employed to determine the appropriateness and extent of remedial action. The courts must weigh the...