Commonwealth v. DiBenedetto (Lawyers Weekly No. 10-142-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-10658   COMMONWEALTH  vs.  FRANK DiBENEDETTO.       Suffolk.     May 5, 2016. – September 8, 2016.   Present:  Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.[1]     Deoxyribonucleic Acid.  Practice, Criminal, New trial, Appeal.  Supreme Judicial Court, Jurisdiction.  Evidence, Exculpatory.       Indictments found and returned in the Superior Court Department on May 21, 1986.   Following review by this court, 458 Mass. 657 (2011), a motion for a new trial was heard by Robert A. Mulligan, J.   A request for leave to appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk.     Wendy H. Sibbison (Dennis A. Shedd with her) for the defendant. Zachary Hillman, Assistant District Attorney, for the Commonwealth. David B. Hird, Cecile Farmer, & Vanshika Vij, of the District of Columbia, Patrick O’Toole, Jr., & Evan Miller, for The Innocence Project, amicus curiae, submitted a brief.     BOTSFORD, J.  On February 19, 1986, Joseph Bottari and Frank Chiuchiolo were shot multiple times and killed in the North End section of Boston.  Louis Costa, Paul Tanso, and the defendant in this appeal, Frank DiBenedetto, were charged with their murders.  On February 3, 1994, after a second trial, a jury found the defendant and Costa guilty of murder in the first degree of Bottari and Chiuchiolo.[2],[3]  See Commonwealth v. DiBenedetto, 427 Mass. 414, 415 (1998) (DiBenedetto II).[4] In 2005, the defendant filed a motion for a new trial on the basis of newly discovered evidence, namely, deoxyribonucleic acid (DNA) evidence showing that both victims were excluded as contributors to the DNA that was found on the defendant’s sneakers.  On January 12, 2009, the motion judge, who also was the trial judge, denied without a hearing the motion in a written memorandum of decision and order.  The defendant filed a gatekeeper petition pursuant to G. L. c. 278, § 33E (§ 33E), and on June 16, 2009, a single justice of this court granted leave to appeal the denial of the motion for a new trial to the full court.  Following briefing and argument, this court vacated the order denying the motion and remanded the matter to the Superior Court for further findings.[5]  See Commonwealth v. DiBenedetto, 458 Mass. 657, 659, 670 (2011) (DiBenedetto III).[6] Following remand, the Commonwealth did not seek an evidentiary hearing.  The defendant […]

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