Commonwealth v. Dinkins

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Greaney, Spina, Cowin, Sosman, & Cordy, JJ
• Citation: 802 NE 2d 76,440 Mass. 715
• Parties: COMMONWEALTH vs. WILLIAM F. DINKINS.
• Decision Date: 22 January 2004

440 Mass. 715
802 NE 2d 76

COMMONWEALTH
vs.
WILLIAM F. DINKINS.

Supreme Judicial Court of Massachusetts, Suffolk.

November 7, 2003.

January 22, 2004.

Present: Greaney, Spina, Cowin, Sosman, & Cordy, JJ.

Richard J. Shea for the defendant.

Susanne Levsen Reardon, Assistant District Attorney, for the Commonwealth.

CORDY, J.

After a jury trial, William F. Dinkins was found guilty of felony-murder in the first degree. On appeal, he argues

440 Mass. 716

that his motion to suppress testimony about ballistics evidence destroyed by the Commonwealth was wrongly denied, that his trial counsel was ineffective in failing to highlight an inconsistency in the trial testimony during his closing argument, and that the trial judge incorrectly instructed the jury regarding the inferences that they might draw from circumstantial evidence. Dinkins also contends that the cumulative impact of errors at trial warrants a new trial pursuant to G. L. c. 278, § 33E. Having considered Dinkins's claims and undertaken a complete review of the trial record, we affirm his conviction

1. Background.

We recite the facts as the jury could have found them. Cosimiro Dos Santos worked at Sunshine Variety, a convenience store in the Dorchester section of Boston. On the evening of November 9, 1989, two men entered the store. Each wore a hooded sweatshirt that obscured his face. One wielded a knife, and the other wielded a gun. They took money and food stamps from the cash register. They also shot and killed Cosimiro Dos Santos. For nine years, the murder was unsolved.

In the late 1990's, the Boston police department began to reinvestigate homicides that had gone unsolved. In 1998, a Boston police detective investigating the Sunshine Variety robbery and murder discovered that .25 caliber shell casings found at the store and the bullet taken from Dos Santos's body had previously been matched to ballistics evidence taken from two other shootings that occurred in Dorchester in November, 1989. The ballistics evidence from those shootings had been further matched to a .25 caliber handgun that police had seized on November 22, 1989, from a bedroom shared by Adell Joyner and his best friend, Dinkins.¹ The detective also learned that Joyner had been convicted in January, 1990, of armed assault in connection with one of the other shootings. Joyner was subsequently arrested for the murder of Dos Santos, and confessed to participating with Dinkins in the robbery and murder of the Sunshine Variety store. At trial he testified, under

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a plea agreement with the Commonwealth, that Dinkins carried the gun and fired the shots that killed Dos Santos.²,³

2. Discussion.

a. Motion to suppress. In the intervening nine years between the seizure of the handgun and the reinvestigation of the murder, while addressing storage overflow problems in the ballistics unit, the Boston police department had destroyed the gun and some of the ballistics evidence. As a consequence, Dinkins moved to suppress testimony and ballistics reports matching the shells and bullets retrieved in the investigation of the murder of Dos Santos with those retrieved at the other shootings and with the .25 caliber gun found in Dinkins's room, claiming that the unavailability of the gun and the other ballistics evidence precluded him from conducting independent tests and thereby developing exculpatory evidence. The trial judge, citing Commonwealth v. Patten, 401 Mass. 20 (1987), denied the motion, concluding that the defendant had not made a showing "beyond fertile imagination" that there was a reasonable possibility that access to the ballistics evidence would have produced favorable evidence.

"A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden . . . to establish `a "reasonable possibility, based on concrete evidence rather than a fertile imagination," that access to the evidence would have produced evidence favorable to his cause' . . . . Commonwealth v. Neal, 392 Mass. 1, 12 (1984). If he meets his initial burden . . . `a court must weigh the culpability of the Commonwealth, the materiality of the evidence, and the potential prejudice to the defendant.' Commonwealth v. Willie, 400 Mass. 427, 432 (1987). When reviewing the denial of a motion to dismiss or suppress based on the Commonwealth's alleged loss of exculpatory evidence, we . . . will not disturb the judge's decision absent a clear abuse of discretion." (Citations

440 Mass. 718

omitted.) Commonwealth v. Cintron, 438 Mass. 779, 784 (2003)

Dinkins did not make any evidentiary showing to support his proposition that access to the gun and to the missing shell casings would have helped rather than hurt his cause. It is not enough for a defendant merely to argue, as Dinkins did below and does here in his brief, that, with access to the evidence, his expert "could have made potentially exculpatory findings." Standing as it does, "could have" is merely an introduction to speculation and is not a substitute for "concrete evidence." Id. There was no abuse of discretion, and there is no basis to disturb the judge's denial of the motion to suppress. See Commonwealth v. O'Day, ante 296, 307 (2003) (affirming denial of motion to dismiss due to inadequate showing that Commonwealth's intentional destruction of infernal device denied defendant access to exculpatory evidence); Commonwealth v. Cintron, supra at 785 (affirming denial of motion to dismiss or suppress due to defendant's failure to show that access to original fingerprint would have provided evidence more favorable than did access to photographs of fingerprint); Commonwealth v. Gomes, 403 Mass. 258, 277 (1988) (holding that defendant failed to show that lack of photographs of test plates used to analyze blood stains prejudiced his case); Commonwealth v. Neal, 392 Mass. 1, 12 (1984) (finding that defendant could not show that access to ampules used in breath analysis would have produced evidence favorable to his cause).

Even if the...