DiBenedetto v. Hall
| Citation | 176 F.Supp.2d 45 |
| Decision Date | 25 August 2000 |
| Docket Number | No. 99CV10843.,99CV10843. |
| Parties | Frank DiBENEDETTO, Petitioner v. Timothy HALL, Superintendent, M.C.I.—Norfolk, and Thomas F. Reilly, Respondents |
| Court | United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts |
Wendy Sibbison, Greenfield, MA, for petitioner.
William L. Meade, Attorney General's Office, Criminal Bureau, Boston, MA, for respondents.
Petitioner DiBenedetto petitions this court for a writ of habeas corpus under 28 U.S.C. § 2254, stating that his conviction in state court for double homicide was in violation of the Constitution of the United States. He raises two central issues of constitutional law in his petition: the Sixth Amendment right to compulsory process and to impeach witnesses against him for bias and his Fifth and Fourteenth Amendment right to due process, specifically to acquittal when the evidence is insufficient to support conviction on one of two theories of guilt submitted to the jury on a general verdict.
Beyond genuine dispute, on February 19, 1986, Frank Chuichiolo and Joseph Bottari were shot and killed in Boston's North End. Three months later, on May 21, 1986, a grand jury in Suffolk County indicted Frank DiBenedetto, petitioner, along with Louis Costa and Paul Tanso for the murders. DiBenedetto and Costa were tried together and convicted of two counts of first degree murder. Tanso was tried separately and convicted. In 1992, the Supreme Judicial Court of Massachusetts reversed the convictions of all three defendants and remanded for new trial. Commonwealth v. DiBenedetto, 414 Mass. 37, 605 N.E.2d 811 (1992) (DiBenedetto I); 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).
DiBenedetto and Costa were retried together in January-February, 1994. The jury found DiBenedetto guilty of two counts of first degree murder on charges of deliberate premeditation and extreme atrocity and cruelty. Costa also was found guilty of both murders. The Supreme Judicial Court of Massachusetts affirmed the convictions. Commonwealth v. DiBenedetto, 427 Mass. 414, 693 N.E.2d 1007 (1998).
Tanso was retried separately and acquitted in March 1994.
DiBenedetto made a timely filing of his petition in this court on April 15, 1999.
As I will explain in more detail below, see Part III, this habeas petition is governed by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). AEDPA provides that in a habeas proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See also Coombs v. State of Maine, 202 F.3d 14, 17 (2000). As the Court of Appeals for the First Circuit has recently determined, "[f]or this purpose [under AEDPA], factual issues are defined as basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators." Id. (internal quotations and citations omitted).
For the purpose of deciding the appeal before them, the Supreme Judicial Court of Massachusetts (SJC) recited the procedural history and determined the relevant facts as follows:
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. 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.
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. 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 that ... 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....
. . . . .
The ... 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....
. . . . .
The test conducted by each expert in this case was substantially the same. The chance to replicate the test on the left sneaker was probably lost because Brody's testing removed the very small amount of blood at the test site. The defendant's expert found indications that blood was present on the other sneaker. There seems to be little doubt that one or both the defendant's sneakers tested positive for the presence of a minute amount of what was either the blood of a human or some other animal or perhaps certain plant peroxidases. The judge did not abuse his discretion in admitting the blood test results. The defendants have failed to demonstrate that they were prejudiced by Brody's testing of the sneakers for blood....
2. We have recently considered, and need not revisit, the question of the admission of expert testimony concerning the reliability of eyewitness identifications. The judge knew he had discretion to admit or exclude such evidence that the defendants offered. He did not abuse his discretion in excluding it. This is not a case in which there was a single eyewitness and little or no evidence to corroborate the identification. ...
. . . . .
3. The judge did not abuse his discretion in excluding testimony intended to show that the victims, strong-arm men in a crew of La Cosa Nostra (LCN) criminals, were killed by fellow LCN members as "fallout" from an earlier LCN murder of one Vincent Limoli. The judge concluded that the Limoli murder was remote and that the proffered evidence was complicated and would divert the jury's attention. The defendants did not offer evidence, other than speculation, that some third person or persons had a motive to...
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