Supreme Judicial Court
January 11, 2011
Docket No. SJC-10658
Docket No. SJC-10658
Motion for New Trial, New Evidence, Exculpatory, Judical Estoppel
Defendant DiBenedetto appeals the denial of his motion for a new trial based upon newly discovered DNA evidence. In addition, defendant argues that the Commonwealth violated the doctrine of judicial estoppel due to their inconsistent positions at different stages of thee proceedings in regards to the evidence at issue. The SJC remands the case for further findings by the motion judge concerning the DNA evidence and its importance to the defendant’s claim and finds no judicial estoppel violation because the inconsistencies are not direct.
Facts
In 1992, the SJC overturned a guilty verdict of murder in the first degree for the defendants Frank DiBenedetto and Louis Costa. The Commonwealth tried the defendants again in 1994 with a previously unavailable witness who testified at trial and expert testimony regarding the possible presence of blood on one of DiBenedetto’s shoes. The jury returned a guilty verdict in 1994, which the SJC affirmed in 1998. In 2005, the defendants filed a motion for a new trial based upon newly discovered evidence regarding the previously used expert testimony regarding the possible presence of blood on DiBenedetto’s shoe.
The circumstances surrounding the 1986 homicides at issue are as follows. Around 9:30 P.M. on February 1986, police found the bodies of two victims in Slye Park in the North End neighborhood of Boston. The bodies were surrounded by blood and each victim was shot multiple times in the body and head. Joseph Schindler testified at trial that he had seen the defendants on the night in question shoot the victims from his third story apartment window overlooking the park. The relevant portion of his testimony for this appeal is that he saw DiBenedetto bend over one of the prone bodies of the victims and shoot the victim in the head multiple times.
At trial, the Commonwealth relied upon and stressed the logical inferences set forth with their expert testimony regarding DiBenedetto’s shoe. Schindler testified that DiBenedetto wore on the night in question white Nike shoes with a red “swoosh” design on them. The Commonwealth’s expert testimony relied upon a chemical test that indicated the presence of blood on the sole of the left shoe. While this chemical test is capable of indicating the presence of blood, it is also known to return a false positive if applied to certain plant substances and does not distinguish between animal or human blood. The trial judge denied the defendants’ motion to suppress and the Commonwealth stressed this evidence’s inferential importance to the jury.
In 2004, the defendants’ retained forensic serologist reanalyzed DiBenedetto’s shoes and found DNA evidence from the left shoe that yielded the previous positive chemical result. She found that the DNA yielded weak genetic profiles that were mixtures from at least three people and excluded both the victims as contributors to that DNA. The expert argued that this result refers to the previously positive result used in the 1994 trial because if DNA were present at the time of the 1994 tests it would still be on the shoes in 2004. While she could not confirm whether blood was the source of the DNA she could not rule it out as a possibility.
The circumstances surrounding the 1986 homicides at issue are as follows. Around 9:30 P.M. on February 1986, police found the bodies of two victims in Slye Park in the North End neighborhood of Boston. The bodies were surrounded by blood and each victim was shot multiple times in the body and head. Joseph Schindler testified at trial that he had seen the defendants on the night in question shoot the victims from his third story apartment window overlooking the park. The relevant portion of his testimony for this appeal is that he saw DiBenedetto bend over one of the prone bodies of the victims and shoot the victim in the head multiple times.
At trial, the Commonwealth relied upon and stressed the logical inferences set forth with their expert testimony regarding DiBenedetto’s shoe. Schindler testified that DiBenedetto wore on the night in question white Nike shoes with a red “swoosh” design on them. The Commonwealth’s expert testimony relied upon a chemical test that indicated the presence of blood on the sole of the left shoe. While this chemical test is capable of indicating the presence of blood, it is also known to return a false positive if applied to certain plant substances and does not distinguish between animal or human blood. The trial judge denied the defendants’ motion to suppress and the Commonwealth stressed this evidence’s inferential importance to the jury.
In 2004, the defendants’ retained forensic serologist reanalyzed DiBenedetto’s shoes and found DNA evidence from the left shoe that yielded the previous positive chemical result. She found that the DNA yielded weak genetic profiles that were mixtures from at least three people and excluded both the victims as contributors to that DNA. The expert argued that this result refers to the previously positive result used in the 1994 trial because if DNA were present at the time of the 1994 tests it would still be on the shoes in 2004. While she could not confirm whether blood was the source of the DNA she could not rule it out as a possibility.
Issue 1: Did the trial judge err in denying the motion for a new trial?
The trial judge concluded that the defendants failed to establish that the 2004 DNA evidence cast real doubt on the “justice of the convictions.” On appeal, the defendants first argued that the new evidence undermines the Commonwealth’s argument at trial.
The court determined that although this evidence appears to remove the admission of the earlier chemical test if the new DNA evidence is scientifically reliable and accurate, this by itself is not sufficient to surpass the trial judge’s determination that the new evidence does not undermine the Commonwealth’s argument at trial. There was no abuse of discretion because the new DNA evidence simply made the previous chemical test more marginal than it was in the 1994 trial because the chemical test results themselves were highly ambiguous. Despite the prosecutor’s forceful closing statement urging the jury to infer DiBenedetto’s involvement in the killings based on the chemical test evidence, this evidence was only an inferential piece of evidence that the jury could believe or not believe and not the sole factor in the guilty verdict.
The defendants’ second argument on appeal is that the new DNA evidence is independently exculpatory in light that there were large pools of blood surrounding the victims and if DiBenedetto had been the shooter, at least one of the victims’ DNA would be detected on his shoe.
The SJC concluded that a new trial is called for due to the motion judge not addressing the specific reasons why the proffered DNA evidence does not exculpate the defendants. The motion judge did not go into specific and simply stated that the Commonwealth’s case “overwhelmed the nominal exculpatory value of the 2004 DNA test results.” While the court recognized that the strength of the Commonwealth’s case may weaken the exculpatory effect of new evidence, the specific case at hand was based upon one individual’s memory of who he saw shoot the victims in Slye Park eight years before the 1994 trial. The court questions whether the Commonwealth’s case, which was dependant on this and other corroborating evidence that does not support the accuracy of Schindler’s identification of the individual shooters, actually overwhelm the proffered DNA evidence. Therefore, the case is remanded to the previous judge, who presided over the trial and motion hearing, to determine the proffered DNA evidence and its importance to the defendant’s claim. The court also granted the Commonwealth the ability to have an evidentiary hearing, if requested, to permit examination into the reliability of the proffered DNA evidence.
Issue 2: Did the Commonwealth violate the doctrine of judicial estoppel?
The defendants argue that the Commonwealth violated the doctrine of judicial estoppel because it adopted inconsistent positions on the strength of the 1994 chemical test.
The court determined that this claim fails because the first element of asserting a “directly inconsistent” position is not met. The prosecutor emphasized the results of the chemical test because it is a piece of evidence that supports the inference that DiBenedetto was a shooter. Evidence used in this matter is not meant to be the sole factor for the jury to take into consideration when deciding the verdict. Since the chemical test results were used by the Commonwealth as one piece of evidence in a chain of inferences, it is not directly inconsistent to later take the position that this piece of evidence is ambiguous. Therefore, there is no violation of judicial estoppel.
Case remanded to Superior Court for further proceedings consistent with this opinion.
