COMMONWEALTH vs. FRANK DIBENEDETTO (and three companion cases [Note 1]).
INDICTMENTS found and returned in the Superior Court Department on May 21, 1986.
Pretrial motions were heard by Charles R. Alberti, J., and the cases were tried before Robert W. Banks, J.
Wendy Sibbison for Frank DiBenedetto.
Andrew L. Mandell for Louis R. Costa.
jeopardy precludes his retrial for murder in the first degree. [Note 2] We reject that argument.
Louis Costa, the third defendant, also appeals from two convictions of murder in the first degree. See Commonwealth v. Tanso, supra. Costa challenges the trial judge's admission in evidence, over objection, of the testimony from the probable cause portion of the juvenile transfer hearing of a witness who was unavailable at the time of trial. Costa asserts that the scope of cross-examination at the juvenile transfer hearing was not adequate because the judge limited it. He also challenges his transfer from the Juvenile Court. For the reasons stated in the opinion, we conclude that the testimony from the juvenile transfer hearing would have been admissible had the scope of the cross-examination not been restricted by the judge. As we read the record, Costa did not have a full and therefore an adequate opportunity to cross-examine the witness. Accordingly, Costa is entitled to a new trial. We also comment briefly on Costa's challenges to his transfer from the Juvenile Court. We reject that claim.
1. The admission of the uncross-examined deposition as harmless error. [Note 3] The Commonwealth argues that a claim of Federal constitutional error under the confrontation clause is subject to a harmless error analysis. [Note 4] The Commonwealth asserts that the admission of Storella's uncross-examined deposition was harmless error. We agree with the Commonwealth that error in the admission of the uncross-examined deposition is subject to a harmless error analysis. We do not agree that the admission of the uncross-examined deposition testimony against DiBenedetto meets the constitutional test for "harmless error."
be analyzed to determine whether the error was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 23 (1967). In Delaware v. Van Arsdall, 475 U.S. 673, 682 (1986), the Supreme Court held that "the denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case." See also Harrington v. California, 395 U.S. 250 (1969). Thus, the improper admission of uncross-examined testimony, in violation of a defendant's confrontation rights, will not be reversible error "if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Van Arsdall, supra at 681.
To determine whether the improper admission of uncross-examined testimony was harmless beyond a reasonable doubt, the Supreme Court listed factors to be considered. "These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Id. at 684.
we note that, after deliberations were in progress, the jurors asked that the deposition testimony be reread to them.
Courts that have construed the language in the Chapman line of cases have held that the government bears the burden of proving that the error was not a substantial factor in the jury's decision to convict. [Note 6] See Brown v. Dugger, 831 F.2d 1547, 1554 (11th Cir. 1987); United States v. Kelly, 790 F.2d 130, 138 & n.6 (D.C. Cir. 1986). The Commonwealth's burden was to prove that the admission of the uncross-examined deposition was not a substantial factor in the jury's decision to convict. The Commonwealth has not met its burden of proving the admission of the deposition was "harmless error." We conclude DiBenedetto must have a new trial.
conditions. [Note 8] At Costa's trial, over objection of Costa's counsel, the judge admitted the prior recorded testimony from the probable cause hearing in the Juvenile Court against Costa. Four days after deliberations began, the jury returned verdicts of murder in the first degree against Costa. Costa argues that he did not have a full and, therefore, an adequate opportunity to cross-examine the witness at the juvenile transfer hearing and therefore admission of that prior recorded testimony was error. We agree.
In Commonwealth v. Mustone, 353 Mass. 490 (1968), we held that, in the event of a witness's unavailability, "his testimony at the prior proceeding is admissible at the defendants' trial under general principles of the law of evidence, if the former testimony can be reproduced with substantial completeness and accuracy. No violation of the defendants' constitutional right of confrontation will be involved." Id. at 492. Storella's testimony was under oath, given before a judge, and recorded by a stenographer. Thus, the testimony was admissible against Costa at trial unless the defendant did not have a full and, therefore, an adequate opportunity to cross-examine the witness at the time of hearing. Id. at 493. We turn to the transfer hearing.
Before Storella was brought before the juvenile court for his testimony, defense counsel suggested that the judge appoint an attorney for the witness. Defense counsel stated that Storella had been offered immunity only with respect to one crime, conspiracy to rob DiBenedetto, and that the witness should be made aware of his constitutional right against self-incrimination.
Defense counsel also acknowledged that there were "going to be allegations that this particular fellow [Storella] was a participant, and I think he should know that perjury in a capital crime is punishable by life imprisonment." The Commonwealth objected to the appointment of a lawyer for Storella. The judge asked what promise the Commonwealth had made to the witness in order to secure his testimony. The prosecutor answered that they had offered Storella immunity on the charge of conspiracy to rob DiBenedetto. [Note 9] The prosecutor also stated that the witness knew that he ran "the risk in his testimony that if he is implicated as a participant in the murder that he has no promise, reward or offer of inducement with regard to those charges." The prosecutor noted that Storella would turn eighteen in approximately one month. Defense counsel argued that no lawyer representing Storella would allow his client to testify without a general grant of immunity for all crimes. In addressing defense counsel's concerns, the prosecutor noted that the Commonwealth had provided defense counsel with a copy of the statement Storella had given to the police; that Storella had received the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and been fully informed of his right to counsel; that Storella had waived his right to counsel at the commencement of the proceeding where he gave his statement; that Storella had not at any time attempted to engage counsel; and that the Commonwealth had informed Storella that, in exchange for his full and truthful testimony, he would not be prosecuted for conspiracy to rob.
claimed that cross-examination would thereby be restricted. [Note 10] The judge overruled the objection.
The judge's declaration that Storella would not have to answer any questions that might incriminate him denied Costa the right to cross-examine the witness on issues other than that for which Storella had a promise not to prosecute. Defense counsel objected to that ruling. [Note 12] We agree with Costa that as a result of the judge's ruling Costa did not have an adequate opportunity to cross-examine Storella fully. Cf. Commonwealth v. Salim, 399 Mass. 227 , 235 (1987) (no error where defendant was permitted, at probable cause hearing, to cross-examine a witness without limitation). Defense counsel was unable to interrogate Storella on any crimes except the conspiracy to rob. Because the record reflects that Costa was denied an opportunity to cross-examine Storella fully, there must be a new trial.
b. Costa's juvenile transfer hearings. On March 13 and 14, 1986, a probable cause hearing was held in the Juvenile Court and probable cause was found. A transfer hearing for Costa was held in the Juvenile Court on April 3 and 23, 1986. [Note 15] On April 29, 1986, the judge made findings and entered an order transferring Costa to Superior Court for trial. On May 21, 1986, the Suffolk county grand jury returned two indictments against Costa, charging him with the murders of Joseph Bottari and Frank Chiuchiolo. Costa was arraigned and entered pleas of not guilty.
In October, 1986, Costa moved for dismissal based on alleged irregularities in the Juvenile Court judge's decision to transfer. The judge in the Superior Court, after hearing, remanded the matter. Revised findings were made and filed and the Superior Court judge denied both the motion to dismiss and a motion to reconsider.
evidence on the seriousness of the alleged offenses. Id. Costa was charged with two separate murders in the first degree. After a hearing, the judge found probable cause on each murder. Therefore, the judge stated that the "bold predisposition and the severe atrocity of this act bespeak the seriousness of the crimes for which he stands charged."
"[A] judge has considerable discretion, within this statutory framework, to determine whether a child should be treated as an adult." A Juvenile v. Commonwealth, 370 Mass. 272 , 282 (1976). Unless the judge abused that discretion we will not disturb his findings. Commonwealth v. Matthews, 406 Mass. 380 , 386 (1990). We have adopted a directed verdict standard to determine whether the evidence was sufficient to support a transfer. Commonwealth v. Matthews, supra at 388.
The trial judge, in denying Costa's motion for new trial based on that evidence, ruled that the evidence "would have had little or no value as material which would bear upon the credibility of Storella." In view of the judge's ruling, Costa's argument that we remand this matter for a new probable cause hearing on his transfer from Juvenile Court on the issue of Storella's credibility is without merit.
his mother. The judge found that Costa's mother was not able to set limits for him and exercised little control over him. The judge concluded that the "family unit would not be an asset in any rehabilitative process."
Costa had enrolled in three different high schools but was successful at none of them. He has not completed the tenth grade. Socially, the judge found that Costa actively participated in sports, played cards, listened to music, and drank a six-pack of beer each weekend night with his friends from the North End. The judge also found that there was no evidence that Costa had had any form of treatment.
Finally, the judge found that Costa, "by these actions [the shootings], his admitted history of aggressive behavior, his lack of anxiety, fear or remorse, and his disrespect for authority, in general, has demonstrated that he is an exceptionally dangerous individual who poses a substantial threat to the safety of the public. The protection of the public, in this case, can only be satisfied by the Massachusetts prison system."
The judge, relying on A Juvenile v. Commonwealth, supra at 281-282, noted that the "transfer of children from the juvenile court for trial as adults in the superior court should be ordered only when warranted by exceptional circumstances." The judge found the circumstances in the case to be exceptional, given the nature of the crimes, Costa's family, school, and social history, his age, as well as Costa's lack of respect for authority. Consequently, the judge ordered the delinquency complaints against Costa to be dismissed and ordered criminal complaints to issue. There was no error.
The judgments are reversed, the verdicts set aside, and these matters are remanded to the Superior Court for a new trial.
[Note 1] One against Frank DiBenedetto and two against Louis Costa.
[Note 2] Costa's appeal arises in a different context and is discussed infra.
[Note 3] For purposes of DiBenedetto's appeal, the facts stated in Commonwealth v. Tanso, supra at 642-650, are the same.
[Note 4] We decided Commonwealth v. Tanso on a Federal constitutional basis, and therefore we consider the question of harmless error on the same basis.
[Note 5] The Commonwealth offered an identification by Schindler, another witness, that corroborated Storella's testimony but not on the issue of who shot Bottari. Schindler testified that he heard sounds and looked out his apartment window into the park. He testified that he saw an individual he later identified as DiBenedetto shoot at one of the victims as the victim lay on the ground. That victim was Chiuchiolo. Schindler's initial description of the shooter was that the individual he had seen was about five feet nine inches tall, while the defendant is six feet three inches. Schindler identified DiBenedetto as the individual whose face he saw as the shooter of Chiuchiolo climbed the stairs leading out of the park.
[Note 6] The Commonwealth asserts that Schindler, a disinterested witness and an attorney, would be more credible than Storella. The Commonwealth claims that Storella might have been viewed as a participant and hence less credible than Schindler. However, that fact alone does not make the error harmless beyond a reasonable doubt.
[Note 7] For purposes of Costa's case, the facts as to the homicides are the same as in Commonwealth v. Tanso, supra.
[Note 8] In a memorandum of decision and ruling on Costa's motion in limine, the motion judge placed the following conditions on the use of Storella's testimony at the probable cause hearing: "First, prior to introduction of the evidence, the Commonwealth must demonstrate that Storella is unavailable. Second, the court, being cognizant that Costa's codefendant DiBenedetto did not have an opportunity to cross-examine Storella at the juvenile transfer hearing, will provide the jury with appropriate limiting instructions. Finally, only questions and answers allowed by the District Court judge will be read to the jury. Costa's counsel will have further opportunity to object to the admission of the testimony allowed in the District Court on a question by question basis in a hearing prior to trial."
[Note 9] The judge asked if the agreement was in writing; the prosecution said it was in the handwriting of another assistant district attorney. That written agreement apparently was not presented to the judge.
[Note 10] The defense attorney stated that "[i]f you do it that way, your Honor, the dough may get shot in my face." We do not know precisely what counsel meant. We interpret it as an objection to the procedure proposed by the judge. We caution attorneys against using expressions that do not lend themselves to easy interpretation by an appellate court.
[Note 11] On cross-examination, the judge did allow defense counsel to ask Storella if he went into the park and shot the victims himself.
[Note 12] The judge did sustain the defendant's objection to a question the Commonwealth asked that was beyond the scope of the conspiracy to rob DiBenedetto.
[Note 13] The parties have briefed a number of issues not likely to recur or not likely to recur in the same context at retrial. We therefore do not discuss those issues.
[Note 14] DiBenedetto also relies on Commonwealth v. Kirouac, 405 Mass. 557 (1989), and Commonwealth v. Funches, 379 Mass. 283 (1979), as support for his claim of double jeopardy. In Funches, however, the Commonwealth had made no showing that it reasonably could expect to produce any other admissible evidence than that which it had introduced at trial even where it had had a "fair opportunity to offer whatever proof it could assemble" on appeal. Funches, supra at 296. Although the defendant in Kirouac had not argued the issue, we noted the same point for consideration on remand. Kirouac, supra at 564. Here the Commonwealth has shown a reasonable prospect of filling the gap in its proof if Storella testifies -- and is cross-examined -- at retrial. There is no merit to DiBenedetto's argument.
[Note 15] Because the offenses of which Costa was accused involved "the infliction or threat of serious bodily harm" and because Costa, at the time of the alleged commission of the crime, was between his fourteenth and seventeenth birthdays, he was entitled to a juvenile transfer hearing to determine whether he should be tried as an adult or as a juvenile. G. L. c. 119, Section 61.
[Note 16] General Laws c. 119, Section 61 (1988 ed.), in relevant part, states: "At said transfer hearing, . . . the court shall find whether probable cause exists to believe that the child has committed the offense or violation as charged. If the court so finds, the court shall then consider, but shall not be limited to, evidence of the following factors: (a) the seriousness of the alleged offense; (b) the child's family, school and social history, including his court and juvenile delinquency record, if any; (c) adequate protection of the public, (d) the nature of any past treatment efforts for the child, and (e) the likelihood of rehabilitation of the child." The statute has been amended since Costa's transfer hearing, but the amendments are not relevant.
[Note 17] Costa claims that we may consider new evidence not available at the time of the transfer hearing in evaluating the correctness of the transfer hearing. The judge, in denying the motion for new trial, ruled that the defendant had failed to establish that the evidence was credible. In these circumstances, we need not discuss that claim.
[Note 18] The judge found that Costa's age made it unlikely he could be rehabilitated within the juvenile justice system. He noted that "[e]ven if this court retained jurisdiction over the defendant and subsequently committed him to the DYS [Department of Youth Services], the best the Department could provide for him would be eight (8) to eighteen (18) months of secure treatment. That period of time will not satisfy the defendant's dire need for long-term secure and rehabilitative treatment." He also noted that "If the defendant were younger, family intervention might offer some hope in changing his patterns of interaction with his family members."