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• Title: Commonwealth v. Frank Dibenedetto (And
• Author : Supreme Judicial Court of Massachusetts
• Release Date : January 28, 1992
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 70 KB

Description

Constitutional Law, confrontation of witnesses, Double jeopardy. Witness, Unavailability, Cross-examination. Error, Harmless. Evidence, Previous testimony of unavailable witness, Cross-examination. Homicide. Practice, Criminal, Transfer hearing. Delinquent Child. Jurisdiction, Delinquent child, Transfer hearing. ABRAMS, J. The defendant, Frank DiBenedetto, is one of three defendants convicted of murder in the first degree for the killing of Joseph Bottari and Frank Angelo Chiuchiolo. See Commonwealth v. Tanso, 411 Mass. 640, cert. denied, 112 S. Ct. 3033 (1992). The main issue in Tanso was whether the ""the trial Judge's admission in evidence, over objection, of the deposition testimony of an unavailable witness who had not been cross-examined"" was error. We determined that ""the admission of the deposition testimony violated the defendant's right to confrontation under the Sixth Amendment to the United States Constitution."" Id. at 641-642. DiBenedetto asserts that his case is governed by our opinion in Tanso. The Commonwealth concedes that, as a result of our holding in Tanso, the admission of the deposition violated DiBenedetto's right to confrontation, but argues that confrontation rights are subject to harmless error analysis. The Commonwealth contends that the admission of the deposition testimony was harmless error. Therefore, the Commonwealth asserts that we should affirm DiBenedetto's convictions. We conclude that the admission of the uncross-examined deposition does not meet the standards necessary for a constitutional error to be determined to be ""harmless error."" Accordingly, DiBenedetto is entitled to a new trial. We comment briefly on DiBenedetto's claim that double jeopardy precludes his retrial for murder in the first degree. 2 We reject that argument.

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