Diebenedetto v. Hall

• Decision Date: 07 September 2001
• Docket Number: No. 00-2279,00-2279
• Citation: 272 F.3d 1
• Parties: (1st Cir. 2001) FRANK DIBENEDETTO, Petitioner, Appellant, v. TIMOTHY HALL, ET AL., Respondents, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

272 F.3d 1 (1st Cir. 2001)

FRANK DIBENEDETTO, Petitioner, Appellant, v. TIMOTHY HALL, ET AL., Respondents, Appellees.

No. 00-2279

United States Court of Appeals For the First Circuit

Heard Sept 7, 2001

Decided November 16, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

[Copyrighted Material Omitted]

Wendy Sibbison, for appellant.

William J. Meade, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellees.

Before Boudin, Chief Judge, Lynch, Circuit Judge, and DiClerico^*, District Judge.

LYNCH, Circuit Judge.

Frank DiBenedetto appeals the district court's denial of his habeas corpus petition challenging the constitutionality of his state conviction for a double homicide more than a decade ago. See Commonwealth v. DiBenedetto, 427 Mass. 414, 693 N.E.2d 1007 (1998). He is serving a life sentence.

DiBenedetto presents two claims, arguing that the determination of the Massachusetts Supreme Judicial Court (SJC) on these issues is in error on de novo review and, additionally, that it was contrary to, or an unreasonable application of, clearly established Supreme Court rulings of constitutional law. 28 U.S.C. § 2254(d) (Supp. II 1996). DiBenedetto's first claim is that the trial court's refusal to allow him to present evidence that he believed would undermine the key witness for the prosecution violated his rights under the Sixth Amendment of the United States Constitution. His second claim is that the prosecution's testing, resulting in the destruction, of physical evidence that may have been exculpatory violated his rights under the Sixth and Fourteenth Amendments. In addition, his case raises questions about the standards by which federal courts ruling on state prisoners' habeas petitions review state court decisions that do not, apparently, decide the federal constitutional claims raised.

We affirm the denial of habeas relief, aided by the very helpful decision of the district judge, and, in light of an intervening decision of this court, clarify the standard of review to be applied to state court decisions under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") Pub. L. No. 104-132, 110 Stat. 1214, when the state court does not decide the federal constitutional claim.

I.

The petitioner DiBenedetto was charged with the 1986 murders of Frank Chiuchiolo and Joseph Bottari. All reportedly had connections to the La Cosa Nostra organized crime group. The bodies of the two victims were found in a park in Boston's North End. Chiuchiolo had been shot seven times, including five shots to the head, and Bottari had been shot sixteen times, including six shots to the head. Each had been shot by three separate guns. DiBenedetto was tried jointly with codefendant Louis Costa, while a third individual, Paul Tanso, was tried separately. The jury found DiBenedetto guilty of two counts of first degree murder on charges of deliberate premeditation and extreme atrocity and cruelty. Costa was also convicted of first degree murder, while Tanso was acquitted.

The prosecution's evidence against DiBenedetto consisted primarily of: 1) the testimony of Richard Storella, a fully immunized witness who claimed to have been present at the shooting and involved in luring the victims to the scene; 2) the testimony of Joseph Schindler, a lawyer, who observed the shootings from the window of his third floor apartment overlooking the park; and 3) DiBenedetto's sneakers, one of which had trace amounts of something that may have been human blood. DiBenedetto's arguments on this appeal relate to the first and third pieces of evidence.

Storella's testimony was key to the prosecution's case. Storella testified that he and the victims had agreed to rob DiBenedetto, a drug dealer and one of Storella's best friends, of cocaine. The plan was for Storella to arrange a buy, and the two others to show up and rob DiBenedetto. Storella says he later decided to inform DiBenedetto of the planned robbery and DiBenedetto instructed him to set up the buy as planned. When the victims arrived at the park intending to rob DiBenedetto, DiBenedetto and his accomplices were armed and waiting to gun them down. Prior to the trial, Storella had given various inconsistent statements to the police, in depositions, and to the grand jury, including one statement where he confessed to being the killer himself. However, in all Storella's versions except his initial denial of any knowledge of the shootings, DiBenedetto was one of the shooters.

DiBenedetto's claim is that he was unconstitutionally precluded from introducing evidence of the defense theory that he was being set up by Storella to take the fall for a mob hit, and that Storella, despite being immunized, was lying in order to "curry favor" with lead players in the La Cosa Nostra, whom Storella had previously angered. More specifically, DiBenedetto's theory was that these killings were "fallout" from the mob-ordered murder of Vincent Limoli, three and a half months prior to the killings at issue here. Limoli, like the victims here, was shot during what was set up as a drug purchase in the same section of the North End. See United States v. Barone, 114 F.3d 1284, 1289-91 (1st Cir. 1997) (describing Limoli murder). He argues that the Limoli murder was retribution for Storella and Limoli's robbery of a "made" mob member in 1985 and that the two victims in this case had angered the La Cosa Nostra leadership over their actions in connection with the Limoli murder: Bottari by refusing to act as Limoli's executioner, and Chiuchiolo by breaking the code of silence to tell his sister (Limoli's girlfriend) details of the killing. DiBenedetto claims that the two victims were killed by the La Cosa Nostra in retaliation for their disobedience, and that Storella, fearing for his own life due to his involvement in the robbery that precipitated all this, was under mob orders to cover up the real story behind the killings. He argues that the trial judge violated his constitutional rights by not allowing him to present evidence of, or cross-examine Storella regarding, the Limoli murder fallout theory.

The sneakers, along with the claimed evidence of blood, form the basis of DiBenedetto's second habeas claim. The witness Schindler had identified the shoes as the ones DiBenedetto was wearing at the shooting. For years following the arrest, the Commonwealth maintained that there was no evidence of blood on the sneakers, and so the prosecution would not use them as evidence. This was the prosecution's position in the pretrial conference report. Less than a week before the second trial was scheduled to begin, on New Year's Eve day, the prosecution conducted its first swab test on the sneakers, which resulted in a positive result on the left sneaker, indicating a small spot of "what was either the blood of a human or some other animal or perhaps certain plant peroxidases." DiBenedetto, 693 N.E.2d at 1011. In the process of testing, the sneaker was cleaned of any trace of blood. DiBenedetto's experts were unable to replicate the test on the left sneaker, but did obtain a positive swab result on the other shoe, where the prosecution's swab test had found nothing. The challenge to the sneaker evidence has two components. First, DiBenedetto argues that the test, conducted in violation of the pretrial conference report, violated his due process rights. Second, he argues that the sneakers were exculpatory evidence which the prosecution did not take sufficient steps to prevent from becoming contaminated and destroyed in the process of testing.

II.

This case has been to the SJC twice. On DiBenedetto's first appeal, the SJC reversed the murder conviction because the witness Storella had been unavailable to testify and the trial judge erroneously admitted his recorded testimony as evidence against DiBenedettto. Commonwealth v. DiBenedetto, 414 Mass. 37, 605 N.E.2d 811, 815-16 (1992). At DiBenedetto's second trial, Storella did testify and DiBenedetto was again convicted of murder in the first degree. DiBenedetto again appealed to the SJC, presenting the claims that he presents here on habeas, as well as many additional claims not argued here. The SJC affirmed the conviction, albeit apparently without considering either claim as a federal constitutional claim. DiBenedetto, 693 N.E.2d 1007 (1998).

On the exclusion of evidence concerning the Limoli murder, the SJC affirmed the trial court's conclusions that, as a matter of state law, the Limoli killing was too remote to be relevant and that the evidence was too complicated and would divert the jury's attention. The SJC concluded that DiBenedetto had proffered no evidence, other than speculation, that anyone else had a motive to kill Chiuchiolo and Bottari, or to show that the murders were sufficiently similar. Similarly, the SJC concluded that the trial judge did not abuse his discretion in barring cross-examination of Storella regarding the Limoli murder and his alleged fear of retribution from the La Cosa Nostra. The SJC did not discuss the Sixth Amendment implications of these decisions.

With regard to the admission of the evidence indicating the possible presence of blood on one of DiBenedetto's sneakers, the SJC relied on its precedent in Commonwealth v. Willie, 400 Mass. 427, 510 N.E.2d 258 (1987), which held that "when potentially exculpatory evidence is lost or destroyed, a balancing test is employed . . . . The courts must weigh the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant." 510 N.E.2d at 261. Based on this balancing test, the SJC held that there was "no doubt that the Commonwealth failed to comply with the pretrial conference report," but that DiBenedetto "failed to demonstrate that [he was] prejudiced by [the] testing of the sneakers for blood." DiBenedetto, ...