Commonwealth v. DiBenedetto

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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.

1
Justices Spina and Duffly participated in the deliberation
on this case prior to their retirements.
 2

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

2
Louis Costa and the defendant were first tried together in
1988; each was found guilty of murder in the first degree. The
convictions, however, were reversed by this court based on the
erroneous admission at trial of the uncross-examined deposition
testimony of Richard Storella, a significant witness for the
Commonwealth. See Commonwealth v. DiBenedetto, 414 Mass. 37,
38-44, 50 (1992) (DiBenedetto I).
3
In 1988, Paul Tanso was tried separately from Costa and
the defendant as a result of a successful motion to sever his
case. See Commonwealth v. DiBenedetto, 458 Mass. 657, 659 n.7
(2011) (DiBenedetto III). Tanso was initially convicted on two
counts of murder in the first degree, but his convictions were
reversed by this court based on the erroneous admission at trial
of Storella's deposition testimony, see note 2, supra.
Commonwealth v. Tanso, 411 Mass. 640, 641-642, cert. denied, 505
U.S. 1221 (1992). In 1994, Tanso was retried and found not
guilty. See DiBenedetto III, supra.
4
The defendant filed in the United States District Court
for the District of Massachusetts a petition for a writ of
habeus corpus, which was denied, DiBenedetto v. Hall, 176 F.
Supp. 2d 45, 66 (D. Mass. 2000), and the United States Court of
Appeals for the First Circuit affirmed the denial. DiBenedetto
v. Hall, 272 F.3d 1, 13 (1st Cir. 2001), cert. denied sub nom.
DiBenedetto v. Spencer, 535 U.S. 1024 (2002).
 3

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

5
We stated that, on remand, if the Commonwealth so
requested, an evidentiary hearing would be appropriate to
inquire into the scientific reliability of the conclusions
stated by the defendant's deoxyribonucleic acid (DNA) expert.
See DiBenedetto III, 458 Mass. at 671. We added that the
Commonwealth also might seek to challenge whether the DNA
evidence qualified as newly discovered evidence. See id. at 671
n.20.
6
Louis Costa, who was tried with the defendant in both
previous trials, had also filed a motion for a new trial in
2005. His and the defendant's motions were considered together
in the Superior Court by the motion judge and thereafter by this
court in DiBenedetto III. Following remand to the Superior
Court pursuant to the rescript in DiBenedetto III, 458 Mass. at
672-673, the defendant's case and Costa's case were separated,
with the motion judge retaining jurisdiction only of the case
against the defendant. At the time of the murders, Costa was
under the age of seventeen, and thus, after our decision in
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 658-659 (2013), S.C., 471 Mass. 12 (2015), Costa was
entitled to be resentenced to a sentence granting him the
 4

Following remand, the Commonwealth did not seek an

evidentiary hearing. The defendant submitted additional

affidavits, one from an expert in DNA analysis who confirmed the

conclusions reached by the defendant's first DNA expert in 2004,

and another from a separate expert concerning the reliability of

eyewitness identifications. After a nonevidentiary hearing, the

motion judge again denied the defendant's new trial motion,

explaining his reasons in a further memorandum of decision and

order.

The defendant filed a notice of appeal and a petition in

the county court to reinstate his appeal in the full court. The

Commonwealth opposed the petition on both procedural and

substantive grounds, arguing that the defendant was required to

seek leave to appeal from the renewed denial of his new trial

motion through a second gatekeeper petition under § 33E. A

single justice of this court agreed with the Commonwealth,

treated the defendant's petition to reinstate his appeal as a

second gatekeeper petition, and denied the petition, concluding

that the defendant did not present a "substantial" claim that

possibility of parole. See Commonwealth v. Costa, 472 Mass.
139, 140-141 (2015). Because only the defendant is before this
court in the present appeal, we discuss only the defendant's
motion for a new trial, and its course through the Superior
Court and this court.
 5

warranted review by the full court.7 In September, 2015, after a

series of additional motions and proceedings in the county

court, the defendant filed a motion in the full court to

reinstate his appeal. The court thereafter ordered briefing "on

the question whether the defendant is entitled to reinstatement

of his appeal and on the merits of the defendant's underlying

claims."

In the discussion that follows, we consider first whether

the defendant is entitled to have his original appeal to the

full court from the denial of his motion for a new trial

reinstated following the court's remand for further findings.

We conclude that reinstatement of the appeal is appropriate,

even though the court did not expressly retain jurisdiction. We

then consider the defendant's claim that he is entitled to a new

trial based on the new DNA evidence, and conclude that the

motion judge did not abuse his discretion in denying the

defendant's motion.8

1. Background. The facts of this case are set out in some

detail in DiBenedetto II, 427 Mass. at 416-420, and DiBenedetto

7
Pursuant to G. L. c. 278, § 33E, a single justice of this
court may grant leave to appeal from the denial of a motion for
a new trial to the full court where the gatekeeper petition
"presents a new and substantial question which ought to be
determined by the full court."
8
We acknowledge the amicus brief submitted by The Innocence
Project in support of the defendant.
 6

III, 458 Mass. at 658-663. We summarize them here. Around 9:30

P.M. on February 19, 1986, a Boston police officer found the

bodies of the victims in Slye Park in the North End section of

Boston. 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. Three different guns had been

used to shoot each victim: two .380 caliber semiautomatic

pistols and a .22 caliber revolver. When police responded to

the scene shortly after the shooting incident ended, the

victims' bodies were surrounded by pools of blood and multiple

spent shell casings.

Joseph Schindler, who lived in an apartment building on one

side of Slye Park, observed much of the shooting incident as it

took place in the park below him. He testified that around 9:30

P.M. that evening, he was sitting in his third-floor apartment,

from which he had an unobstructed view of the park. He heard

four or five "'cracks or pops' that he thought were fireworks,"

DiBenedetto III, 458 Mass. at 660, and he looked out his window

and "saw orange-red flashes in the area of the hand of a man

whom he later identified as [the codefendant,] Costa." Id.,

quoting DiBenedetto II, 427 Mass. at 416. Schindler saw five

men running in the park, two of whom fell to the ground at

separate times in different locations. Each of the other three

men, the shooters, left the park and walked toward Boston Harbor
 7

after each descended a series of staircases on the other side of

the park. In the course of their descent, each shooter at one

point walked facing toward Schindler so that he could observe

their faces and bodies -- their front profile -- one at a time.

However, before the last person -- later identified by Schindler

as the defendant -- descended all the sets of stairs and left

the park, he stopped and turned around, returning to the area

where Chiuchiolo's body lay on the ground. This individual,

whom we refer to as the third shooter, "stood bent at the waist

so that he was just a few inches from the head area of the prone

[Chiuchiolo]. Schindler then saw four to six flashes

accompanied by the same sound he had initially heard."

DiBenedetto III, 458 Mass. at 660 & n.8. The park was lit by

artificial lights, and Schindler estimated that he observed the

shooting incident and the three shooters in the park over the

course of a three- to five-minute period, including a three- to

five-second period during which the defendant stood facing him

as he was walking down the stairs and leaving the park;

Schindler testified that his ability to identify the defendant's

face principally depended on this three- to five-second

observation.

After the three shooters left Slye Park, Schindler

telephoned the police, who reported to the scene and interviewed

him regarding his observations. That night, Schindler provided
 8

descriptions of the three men whom he saw leaving the park,

descriptions that were not "entirely accurate," id., but the

following day, Schindler went to the police station and informed

police officers that, given the opportunity, he could identify

the three men.9 He later identified the assailants as

DiBenedetto, Costa, and Tanso on multiple occasions, including

identifying each man individually in a separate lineup conducted

at the police department, each in pretrial court room

proceedings, and Costa and the defendant at trial. Id.

Richard Storella, who was at one time a close friend of the

defendant and Costa, testified as follows. Bottari and

Chiuchiolo told him to set up a "drug buy" with the defendant,

during which they would rob the defendant of the drugs.

Storella set up the purported drug buy meeting for around 9 P.M.

on February 19, 1986, but he first informed the defendant of the

victims' intention to steal the drugs. With that knowledge, the

defendant formed a plan with Costa, Tanso, and Storella to meet

with the victims in Slye Park and shoot and kill them on sight.

Around 8 P.M. on February 19, these four men met at Enrico

Ponzo's house and readied their weapons and ammunition,

9
Joseph Schindler testified at trial that when he was
initially interviewed by police following the incident, he told
the police that he was not able to make affirmative
identifications of the three assailants because he saw that his
wife was very concerned about the prospect of his being involved
in the case.
 9

including a .22 caliber revolver that Storella had retrieved and

given to Tanso, and hollow point bullets. Storella then

accompanied the men to Slye Park but remained outside the park

itself, from where he witnessed each of the three men fire shots

at the victims when the victims arrived; Storella ran out of the

park as DiBenedetto ran toward Chiuchiolo. The following day,

Storella heard Costa, Tanso, and the defendant talking about the

incident. During their conversation, each of them stated that

he had shot each victim. DiBenedetto III, 458 Mass. at 659,

quoting DiBenedetto II, 427 Mass. at 415-416. Between

Storella's first interview with the police and the 1994 trial,

however, he had given five "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."

DiBenedetto III, supra, quoting DiBenedetto II, supra. Storella

had been granted immunity from prosecution, including

prosecution for murder, in exchange for his "truthful" testimony

against the other three. DiBenedetto III, supra.

The defendant's motion for a new trial centers on a pair of

Nike sneakers that were introduced in evidence for the first

time during the 1994 trial.10 Schindler testified that the third

shooter, i.e., the defendant, "wore white Nike brand sneakers

10
The Commonwealth did not introduce the sneakers in
evidence at the defendant's first trial. See DiBenedetto III,
458 Mass. at 658.
 10

that had become 'grayish with age,' identifiable by the

trademark red 'swoosh' design on them." DiBenedetto III, 458

Mass. at 660. When the defendant was arrested in his apartment

four days after the shooting incident, he was wearing a pair of

white Nike sneakers that Schindler identified at trial as

"similar" to the shoes the third shooter was wearing on the

night of the incident. Id. We repeat here our description in

DiBenedetto III of the testing of the Nike sneakers:

"At the time DiBenedetto's sneakers were seized in
1986, they were sent to the Boston police crime laboratory
(crime lab) for testing. A senior criminalist employed by
the crime lab visually examined the sneakers for the
presence of blood, but observed nothing remarkable and
specifically observed no stains that could be tested for
the presence of blood. No chemical testing of the sneakers
was conducted at that time.

"On December 31, 1993, on request by the prosecutor
and days before the retrial of DiBenedetto and Costa was
scheduled to begin, David L. Brody, the director of the
crime lab, performed a preliminary test for the presence of
blood on the sneakers. The test was conducted with the use
of the chemical phenolphthalein and hydrogen peroxide, an
oxidizing agent. Brody's test of the right sneaker yielded
no positive results, but an outside edge of the sole of the
left sneaker tested positive, meaning the result indicated
the presence of blood. George Abbott, an expert retained
by the defendant, however, was unable to replicate this
result on the left sneaker, but identified a small area on
the sole of the right sneaker that tested positive.

"The type of phenolphthalein test performed by Brody
and Abbott may return a false positive if applied to
certain plant substances, referred to as 'plant
peroxidase.' Moreover, the test does not distinguish
between human blood and any other animal blood. It is only
possible to make that type of distinction by performing one
or more additional, confirmatory tests for the presence of
human blood, but none was performed. Immediately before
 11

the second trial, the defendants' counsel moved to suppress
any evidence relating to the phenolphthalein test results
and in effect renewed the motion at trial; their argument,
made most forcefully at trial, was that the evidence as
presented did not allow a reasonable inference that any
blood on DiBenedetto's sneakers was in fact the blood of
'any relevant party' present at Slye Park on February 19,
1986. The motion to suppress was denied, the defendants'
argument on the issue at trial overruled, and the jury
heard evidence from Brody and from Abbott about the testing
of the sneakers for blood and the respective experts'
opinions concerning the results of the testing. . . .

". . .

"In 2004, Janet Hanniman, a forensic serologist
retained by the defendants, reanalyzed DiBenedetto's
sneakers. She was able to extract DNA evidence from the
area of the left sneaker that Brody testified had yielded a
presumptive positive result for the presence of blood; she
also extracted DNA from stains on other specific portions
of the right and left sneakers. She found that the DNA
yielded 'weak and incomplete genetic profiles that were
mixtures from at least three people.' Based on her
examination, she excluded both Chiuchiolo and Bottari as
contributors to that DNA. Hanniman opined that if the
blood of either victim had been the cause of the positive
preliminary tests completed in 1993-1994, DNA contained in
that blood also would have been present on the sneakers;
and that if that DNA were present, it would still be
detectable in 2004. Hanniman could not confirm whether
blood was the source of the DNA she identified, but she
could not exclude it as a possibility."

DiBenedetto III, 458 Mass. at 661, 663.

Following DiBenedetto III, on remand to the Superior Court,

the defendant submitted an affidavit from Carll Ladd, a forensic

scientist who is the supervisor of the DNA unit in the State of

Connecticut's forensic laboratory. Ladd confirmed Hanniman's

conclusions that (1) DNA profiles were found in seven different

locations on the sneakers, including the two locations that were
 12

phenolphthalein positive in 1994; (2) the profiles consisted of

DNA mixtures derived from multiple people; (3) the victims were

excluded as contributors to any of the mixtures; and (4) if

either of the victims' DNA had been deposited on the sneakers in

1986, that DNA would still be detectable on the sneakers when

tested in 2004. The defendant also submitted an affidavit of a

professor of psychology at Tufts University, Samuel Sommers, on

the fallibility of eyewitness identifications. Sommers opined

on factors that present risks concerning the accuracy of

eyewitness identifications generally and concluded that

"[m]ultiple risk factors for mistaken eyewitness identification

and inflated eyewitness confidence were present in Schindler's

identifications of DiBenedetto and Costa." As indicated,

following a nonevidentiary hearing, the judge again denied the

defendant's motion for a new trial.

Discussion. 1. Reinstatement of the defendant's appeal.

General Laws c. 278, § 33E, governs not only direct appeals of

convictions of murder in the first degree, but also motions for

a new trial in such cases, whether filed before the defendant's

direct appeal has been decided or after the entry of the

rescript by this court. With respect to motions for a new trial

filed after rescript, § 33E provides:

"If any motion is filed in the superior court after
rescript, no appeal shall lie from the decision of that
court upon such motion unless the appeal is allowed by a
 13

single justice of the supreme judicial court on the ground
that it presents a new and substantial question which ought
to be determined by the full court."

The defendant's motion for a new trial at issue here was

filed after the rescript of his direct appeal from the 1994

conviction in DiBenedetto II. A single justice allowed his

gatekeeper petition, impliedly concluding that it raised a "new

and substantial question which ought to be determined by the

full court." Commonwealth v. Ambers, 397 Mass. 705, 707 (1986).

In DiBenedetto III, however, we did not reach the merits of the

question raised -- whether the new DNA evidence relating to the

sneakers "cast[] real doubt on the justice of the conviction,"

Commonwealth v. Grace, 397 Mass. 303, 305 (1986) -- because we

determined that it was "necessary to remand the case for further

findings by the motion judge concerning the proffered DNA

evidence and its importance to the defendant['s] claim [that he]

was not the third shooter in light of the evidence presented at

trial." See DiBenedetto III, 458 Mass. at 670. We added that

"[a] remand [was] particularly appropriate . . . because of the

fact that the motion judge was the trial judge with a thorough

knowledge of the trial proceedings . . . who had the opportunity

to observe the trial witnesses firsthand." Id. at 670-671.

Accordingly, we vacated the motion judge's order denying the

defendant's motion for a new trial and remanded the case to the

Superior Court for further consideration of the motion in a
 14

manner consistent with our opinion. Id. at 672-673. We did not

explicitly state that we were retaining jurisdiction.11

We disagree with the Commonwealth's position that because

we did not expressly retain jurisdiction in remanding the case

to the Superior Court, we did not intend to do so, and that,

therefore, the defendant could only seek to appeal from the

judge's further denial of the motion by filing a second

gatekeeper petition under § 33E. Rather, we conclude that the

second gatekeeper petition was not required here because a

single justice already determined in 2009 that the defendant's

motion for a new trial raised a new and substantial issue worthy

of consideration by the full court. We did not decide that

issue in DiBenedetto III, but instead remanded the case to the

Superior Court for further hearing and findings that would

enable us to better do so. Now that the judge has held the

hearing and rendered a further decision, the defendant is

entitled to have us decide that issue.12 Cf. Commonwealth v.

11
Compare Commonwealth v. Greineder, 464 Mass. 580 (2013);
Commonwealth v. Lennon, 463 Mass. 520 (2012); Commonwealth vs.
Mazza, SJC-11363.
12
Contrary to the Commonwealth's claim, the merits issue
the defendant raises here is not "wholly new," but the same
issue he originally raised in his motion for a new trial:
whether he is entitled to a new trial based on the new DNA
evidence, where the Commonwealth and the judge in effect
accepted that the DNA evidence was newly discovered.
 15

Geraway, 364 Mass. 168, 175-176 (1973). Cf. also Commonwealth

v. Hurley, 391 Mass. 76, 78-79 (1984).

2. Motion for a new trial. To prevail on a motion for a

new trial on the basis of newly discovered or newly available

evidence, the defendant must meet a two-part test. He must

demonstrate, first, that the evidence was previously unknown to

him or not reasonably discoverable before trial and, second,

that the evidence "casts real doubt on the justice of the

conviction." Grace, 397 Mass. at 305. See Commonwealth v.

Cowels, 470 Mass. 607, 616 (2015). In this case, the

Commonwealth, although afforded a specific opportunity to do so,

see DiBenedetto III, 458 Mass. at 664 n.11, 671 n.20, has not

contested that the DNA analysis performed by Hanniman in 2004

constitutes newly discovered evidence. We therefore accept, as

did the judge, that the defendant satisfies the first prong of

the Grace test. The issue is whether he has satisfied the

second.

The defendant argues that, for two reasons, the newly

discovered DNA evidence, indicating that both victims were

excluded as possible sources of the DNA mixture contained in

blood found on the Nike sneakers, casts real doubt on the

justice of his conviction. The first, and most significant in

the defendant's view, is that the evidence constitutes

"powerfully exculpatory evidence" because it tends to show that
 16

the defendant could not have been the third shooter in the

circumstances of the case.13 The second reason is that the same

DNA evidence would likely render inadmissible the evidence of

the phenolphthalein test results as evidence tending to show

that the victims' blood was on the sneakers, and more

importantly, the new DNA evidence would foreclose the

Commonwealth from arguing that the defendant's sneakers, with

the blood, provided strong physical evidence that supported and

reinforced Schindler's identification of the defendant as the

third shooter.

New evidence will "cast[] real doubt on the justice" of a

defendant's conviction if there is a substantial risk that the

jury would have reached a different conclusion had the evidence

been admitted at trial. Grace, 397 Mass. at 306. The standard

is not whether the verdict in fact would have been different,

but whether there is a meaningful risk that it would have been.

See Commonwealth v. Sullivan, 469 Mass. 340, 350-351 (2014),

13
Schindler testified that the third shooter was standing
essentially over the prone body of Chiuchiolo with his gun just
inches away from Chiuchiolo's head and then fired the gun
repeatedly. By the time the police arrived, there were large
pools of blood on the ground around Chiuchiolo's head. The
defendant argues, therefore, that if he were the third shooter
and had been wearing the subsequently seized Nike sneakers
during the killings, certainly the sneakers would have the blood
of one or both victims on them.
 17

quoting Grace, supra. Accord Cowels, 470 Mass. at 617.14 And

because "[s]uch fact-specific analysis requires a thorough

14
In a number of recent cases, we have considered
arguments, similar to the defendant's second argument -- that a
new trial was required because of newly discovered or newly
available evidence that would have rendered inadmissible certain
evidence on which the Commonwealth relied at trial. See
Commonwealth v. Cameron, 473 Mass. 100 (2015); Commonwealth v.
Cowels, 470 Mass. 607 (2015); Commonwealth v. Sullivan, 469
Mass. 340 (2014). In Cowels, we discussed how the Grace test
applies to such a case:

"In the typical case, where a defendant argues on the
basis of newly discovered exculpatory evidence that was not
presented at the original trial, we ask 'whether the new
evidence would probably have been a real factor in the
jury's deliberations' had it been presented [emphasis
supplied]. Commonwealth v. Grace, 397 Mass. at 306. In
this case, where the defendants argue on the basis of a
newly available analysis that likely would have rendered
inculpatory evidence presented at the original trial
inadmissible, we ask whether that inculpatory evidence
'likely was a "real factor" in the jury's deliberations
such that its elimination would cast real doubt on the
justice of the defendant's conviction' [emphasis supplied].
Commonwealth v. Sullivan, 469 Mass. 340, 350 (2014). . . .
If we conclude that the subsequently eliminated inculpatory
evidence likely did play an important role in the jury's
deliberations, then we must conclude that there is '"a
substantial risk that the jury would have reached a
different conclusion" if it had not been admitted at
trial.'"

Cowels, supra at 618. As we explained in Cowels, although the
question asked to determine whether newly discovered evidence
entitles the defendant to a new trial may differ, depending on
the potential effect of that evidence on the case -- i.e., would
the new evidence add exculpatory evidence or remove inculpatory
evidence -- the focus of the test is the same: whether the
evidence probably would have been a "real factor" in the jury's
decision, such that there is a substantial risk that the jury
would have reached a different conclusion had the evidence been
admitted at trial (or excluded, as the case may be). Id. at
 18

knowledge of trial proceedings . . . , we afford special

deference to the rulings of a motion judge who was also the

trial judge" (citation omitted). Sullivan, supra at 351.

The motion judge in this case, who was also the trial

judge, rejected both of the defendant's arguments. The judge

questioned the exculpatory value of the new DNA evidence insofar

as, in his view, the jury reasonably could have inferred either

that the defendant was not wearing the same Nike sneakers on the

night of the killings as he was when arrested four days later,

or that the defendant had wiped the sneakers clean of virtually

all the blood that may have been on them; the judge also stated

that, in any event, because the serologist Hanniman had only

tested a discrete number of areas on the sneakers, the defendant

had not demonstrated the "complete absence" of the victims' DNA

from the sneakers. As for the defendant's second argument, the

judge restated the conclusion he had reached when he originally

denied the defendant's motion for a new trial in 2009: his

observation of the first trial as it proceeded persuaded him

that the allegedly inculpatory blood-on-the-sneakers evidence

had been of marginal value to the prosecution and "was not of

significant consequence at trial to the jury's assessment of the

defendant's guilt." The judge's principal reason for rejecting

617-618. See Commonwealth v. Tucceri, 412 Mass. 401, 413
(1992), citing Grace, 397 Mass. at 306.
 19

the defendant's claims, however, was tied to his assessment of

the strength of the Commonwealth's case, and, in particular, the

exceptional (in his view) strength and credibility of the

identification evidence supplied by Schindler -- an

identification that was corroborated by the other eyewitness,

Storella, who, despite having provided many versions of the

events, undisputedly knew the defendant (as well as Costa and

Tanso) and had consistently identified the defendant and Costa

as two of the three shooters.

The defendant challenges the judge's decision as based on a

mischaracterization of trial evidence and speculation as to the

inferences the jury might draw if the new DNA evidence had been

presented at trial. On mischaracterization, he argues, for

example, that the judge repeatedly stated that Schindler viewed

the defendant for three to five minutes, and that the judge

declined to give any weight to Schindler's critical testimony

that his (Schindler's) ability to identify the defendant was

based on a three- to five-second observation of the defendant as

he stood on a well-lit set of stairs leading out of the park.

Schindler certainly did testify about the importance of the

three- to five-second period of observation of the defendant's

face to his (Schindler's) ability to identify the defendant, but

Schindler also testified that he was "accumulating" information

about the defendant during the entire three- to five-minute
 20

period he was observing the defendant and the other men in the

park. In that sense, the three- to five-minute period was

certainly relevant to Schindler's capacity to identify the

defendant, and we cannot say the judge abused his discretion in

focusing on this longer period in assessing the strength of

Schindler's identification testimony.15

With respect to speculation, the defendant points to the

judge's proffered reasons that the jury would not likely have

given much significance to the new DNA evidence if it had been

available at trial, such as the judge's assumption that the jury

reasonably could have inferred that on the night of the

killings, the defendant was wearing a pair of sneakers different

from the ones he was wearing when he was arrested four days

later, or that the defendant washed his sneakers prior to being

15
Another example provided by the defendant of the alleged
misrepresentation of the evidence by the judge concerns the
distance from Schindler's third-floor study window to the
particular location in Slye Park where he observed each
shooter's face when each shooter was heading out of the park and
toward Boston Harbor. There was evidence that the distance
measured eighty-eight feet and, although Schindler testified
based on a chalk depicting his apartment building and the park
that he was "willing to believe" that the distance was
approximately ninety feet, he later reaffirmed that his
estimation of the distance was fifty feet; the judge's decision
focuses on the fifty feet. There was no evidence presented at
trial as to what specifically could or could not be seen at
fifty versus eighty-eight feet, and the jury also took a view
and observed these locations for themselves. In the
circumstances of this case, the thirty-eight foot difference
between the measured distance and Schindler's estimation does
not appear to be of real significance in assessing the
correctness of the judge's decision.
 21

arrested. We agree that the judge's reasoning is based on what

are necessarily speculative assumptions because, by definition,

the newly discovered evidence was not admitted at trial and not

considered by the jury, but for reasons discussed infra, we

conclude that the judge did not abuse his discretion in deciding

that the exculpatory value of the new DNA evidence is far less

significant than the defendant claims that it is.

The defendant contends that the judge, in substance,

ignored the factors that may have weakened or even undermined

the reliability of Schindler's identification of the defendant,

including -- as emphasized in the affidavit submitted by Sommers

-- the repeated postevent exposure to information and evidence

that, in Sommers's opinion, led to an evolving specificity of

Schindler's identification over time.16 See generally Supreme

Judicial Court Study Group on Eyewitness Evidence: Report and

Recommendations to the Justices (July 25, 2013) (study group

report). The judge, however, had the benefit of hearing and

observing Schindler testify in person, and also specifically

noted that he was aware of the factors that may affect

eyewitness identification mentioned by Sommers. We cannot

conclude that the judge abused his discretion in declining to

16
The defendant points out that Schindler did not testify
that the sneakers he observed the third shooter wearing were
Nike sneakers with a trademark red swoosh until the second
trial, after he had viewed a pair of dirty white Nike sneakers
with a red swoosh in an evidence bag in the prosecutor's office.
 22

question the reliability of Schindler's identification based on

such factors. It is also the case that the judge's instructions

to the jury, which predated the study group report and our

decision in Commonwealth v. Gomes, 470 Mass. 352 (2015), and its

progeny, were faithful to the identification principles set out

in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979)

(Appendix), S.C., 419 Mass. 1006 (1995), and included an

instruction on the possibility of an honest but mistaken

identification in accordance with Commonwealth v. Pressley, 390

Mass. 617, 619–620 (1983). See Commonwealth v. Navarro, 474

Mass. 247, 254-255 (2016).

Motions for a new trial are addressed to the "sound

discretion" of the trial judge. DiBenedetto III, 458 Mass. at

663-664. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).17 Having been the trial judge, the motion judge here, as

he was entitled to do, clearly made "use of his knowledge of

17
We restated the standard for judging an abuse of
discretion in L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014), as follows:

"An appellate court's review of a trial judge's
decision for abuse of discretion must give great deference
to the judge's exercise of discretion; it is plainly not an
abuse of discretion simply because a reviewing court would
have reached a different result. . . . [A] judge's
discretionary decision constitutes an abuse of discretion
where we conclude the judge made 'a clear error of judgment
in weighing' the factors relevant to the decision . . .
such that the decision falls outside the range of
reasonable alternatives" (citations omitted).
 23

what occurred at trial." Commonwealth v. Kirwan, 448 Mass. 304,

315 (2007). Although he certainly could not know what was in or

on the minds of the jurors who decided the case, the judge was

entitled to assess the credibility of the witnesses at trial,

including in particular Schindler, who testified over the course

of four days. In the judge's view, very clearly, this was a

case in which "[t]he strength of the case against [the]

defendant . . . weaken[ed] the effect of evidence which is

admittedly newly discovered." Grace, 397 Mass. at 306.

Considering the defendant's two claims about the impact of the

new DNA evidence in conjunction with our own full review of the

trial record, we cannot conclude that the judge's view reflects

a "clear error of judgment." L.L., supra.

The defendant's claim that the new DNA evidence was

"powerfully exculpatory" is premised on the belief that the

third shooter was highly likely to have gotten one or both of

the victims' blood on his sneakers, and that the absence of any

DNA from the victims was strong evidence that the defendant was

not the third shooter. The factual basis of this premise is not

self-evident from the record.18 Moreover, the exculpatory value

18
Although photographs showed pools of blood around the
victims by the time the police arrived at and secured the crime
scene and photographed the victims lying on the ground, there
was no evidence as to whether or in what amount blood was
present when the third shooter came back to where Chiuchiolo was
lying and fired the additional shots at Chiuchiolo, and no
 24

of the new DNA evidence is diminished by (1) the DNA examiners'

opinions that the DNA evidence found on the sneakers was small

and, according to the serologist, consisted of "weak and

incomplete genetic profiles," see DiBenedetto III, 458 Mass. at

663, 671; and (2) the fact that the sneakers had been seized by

the police approximately eighteen years before they were tested

and had not been stored in any type of scientifically protective

manner.19

The defendant's separate claim is that the prosecutor's use

of the phenolphthalein test evidence against him at trial and

particularly during her closing argument was likely a real

factor in the jury's decision to find him guilty, and the DNA

evidence concerning likely blood spatter pattern relating to
those additional shots. It is also the case that the third
shooter may have taken caution not to step in the areas where
blood was visible, and that, as the judge hypothesized, if the
defendant was the third shooter and was wearing the Nike
sneakers at the time of the killings, he may have wiped any
blood off the sneakers by the time they were seized after his
arrest four days later.
19
The defendant's experts, Janet Hanniman and Carll Ladd,
stated in their affidavits that DNA, if deposited on the shoes
on the night of the shooting, would be present eighteen years
later, but Ladd went on to clarify that that conclusion was
based on the assumption that the sneakers were properly stored.
The lack of proper storage, he opined, could cause more
significant degrading of the DNA contained in the sneakers. He
also stated that if the sneakers had been washed after the
victims' blood was transferred to one or both of them, the
survival of a detectable amount of DNA would depend on multiple
factors, "including how much DNA was originally present, how
much washing was done, and whether bleach, soap or another
detergent was used."
 25

evidence would have prevented the prosecutor from making such an

argument. We have reviewed the prosecutor's closing argument,

including a videotape of the argument submitted by the

defendant. Near the end of her lengthy closing, the prosecutor

does argue forcefully about the value of the phenolphthalein

test evidence as concrete physical evidence corroborating the

eyewitness testimony.20 However, the closing argument, taken as

a whole, was not built around or centered on this point, and it

was also clearly not the most forceful point. The prosecutor,

rather, focused primarily on the credibility of the

identifications of the defendant and his codefendant, Costa,

made by Schindler, and most particularly on the fact that

Schindler's detailed observations about the events in the park

and the actions of the shooters corresponded with specific

details supplied by Storella, and both of these witnesses'

testimony corresponded with details testified to by the medical

examiner -- an effective triangulation of consistent evidence.

In sum, we accept the judge's conclusion, reflected in his

denial of the motion for a new trial, that this is not a case in

which "justice may not have been done." Mass. R. Crim. P. 30

(b), as appearing in 435 Mass. 1501 (2001).

20
See DiBenedetto III, 458 Mass. at 661-662, where this
portion of the prosecutor's closing argument is quoted.
 26

Conclusion. The order denying the defendant's motion for a

new trial is affirmed.

So ordered.