PEABODY — Three witness statements that police never turned over led to a mistrial yesterday in the case against a West Peabody man charged with shooting and robbing a former friend 21/2 years ago.
Christopher Dalomba, 34, had been on trial on attempted murder and armed robbery charges stemming from the Jan. 13, 2006, shooting of Luigi Passanisi, 36, in Passanisi's Roosevelt Avenue home.
Prosecutors allege that the shooting was part of a "drug rip" in which Dalomba schemed to steal $92,000 from Passanisi by selling him an empty package that was supposed to contain pills. Dalomba's lawyers say that he didn't do it and that Passanisi simply fingered Dalomba because he feared his real assailant.
But during the testimony of a neighbor of Passanisi on Friday, both the prosecution and the defense came to realize they did not have all of the reports generated by police.
The reports, which detailed witness interviews, contained information potentially helpful to both sides.
Lawrence Superior Court Judge Richard Welch found that the lapse was unintentional and denied a motion by Dalomba's lawyer, Mark Miliotis, to dismiss the case.
"What we have here is a lack of communication without adequate follow-up, which resulted in matters falling between the cracks," said Welch, who instead declared the mistrial.
The ruling means Dalomba, who remains free on $300,000 cash bail, will get another trial, probably later this year.
The missing reports put both sides at a disadvantage, the judge said. But he found that in spite of "extraordinary" efforts by prosecutor Greg Friedholm to remedy the situation — including having one witness's final exams delayed to ensure he was available to testify — the defense lawyer was "entitled to it before he gave his opening."
The evidence wasn't of the "smoking gun" variety, the judge found, but "sort of nibbling around the edge type of exculpatory evidence," the kind that Dalomba's lawyer could have used to generate reasonable doubt among jurors.
The missing statements included one from a neighbor who puts a man resembling Dalomba at the Passanisi home the day of the shooting and mentions seeing him getting into a black Volvo.
Another statement indicates that an unknown man was seen walking across the street, illuminated by the rear lights of a pickup truck, after a loud bang was heard. That does not appear to be the same man as Passanisi, who was described as running zigzag across the street after he had been shot, and thus raises the possibility of another assailant.
And there was a statement from the neighbors across the street who found the wounded Passanisi on their doorstep. They told police that they thought he said either he was their neighbor and had been shot or that their neighbor had shot him. The latter scenario raises questions about whether Dalomba, who lived several hundred yards away, could have been considered a "neighbor" to the witnesses.
It's unclear exactly where the statements, which were taken by a state police detective when the case appeared to be a potential homicide, fell through the cracks.
At some point, after it became clear that Passanisi would survive, state police detectives assigned to the district attorney's office turned over the case to the Peabody police.
Peabody police were responsible for turning over all of the evidence to the prosecutor, Friedholm. He, in turn, would have then been responsible for sharing that evidence with the defense. But Welch found that Friedholm did not have the evidence to share.
"The hand-over was not done in a thorough manner," Welch said.
Yesterday, Essex County District Attorney Jonathan Blodgett announced that he has instituted a new procedure in his office for the handling of information in all major felony cases. Police will be required to detail on a sign-off sheet each item they have submitted to prosecutors and when it was submitted. The same practice had been in place for homicide cases since shortly after Blodgett took office.
"It shouldn't have happened," Blodgett said. And, he said, it hasn't happened, until now.
"This is not the first time (the state police) have bowed out," First Assistant District Attorney John Dawley told the judge yesterday. "We have not encountered these sorts of issues."
Blodgett said the state police detective who handled the interviews believes he turned over every piece of evidence he had to the Peabody Police Department. He said he had not yet discussed the situation with Peabody police Chief Robert Champagne.
But the district attorney said he's less interested in pointing fingers than in preventing future lapses.
He also said he plans to ask police chiefs to adopt the same type of procedure within their own departments.
During yesterday's hearing, both Friedholm and Dawley acknowledged the lapse to the judge but argued that it did not warrant a dismissal or mistrial.
"There's no argument," Friedholm said. "They should have been turned over."
But, he said, "That's all water under the bridge," adding that the lapse could be remedied by making all of the witnesses available for further questioning by both sides.
Welch disagreed, saying Miliotis could have used some of the information in his opening statement, or developed a different theory of the case.
And Miliotis suggested that had the evidence surfaced after the trial, "I'd get a new trial. I want a new trial. I want it now."
Friedholm argued yesterday that he was opposed to a mistrial if there was the possibility that it would create a "double jeopardy" situation, the constitutional prohibition against trying someone twice for the same crime.
Welch, after a half-hour recess during which he read several cases on the issue, said he does not believe that the situation rises to that level, saying an "inadvertent" lapse by prosecutors "is not the type of situation where double jeopardy should attach."
Passanisi, an admitted drug dealer who moved large quantities of OxyContin at a time when the drug was becoming a scourge in the city of Peabody, told police that he was about to purchase $97,000 worth of Vicodin from Dalomba. However, just as he cut open a package that purportedly contained the pills, Passanisi said Dalomba pulled out a gun and shot him. As Passanisi fled for his life, prosecutors say Dalomba stole the cash and took off. He didn't surface again until the following December, after a drug possession arrest in New York.
Passanisi testified under an agreement that called for him to receive just seven years in a minimum security federal prison on both state drug-trafficking and federal money-laundering charges.
Miliotis said he will file new motions seeking information about that agreement, as well as motions seeking information about a police informant who may have been working with Peabody detectives and federal agents who were investigating Passanisi before the shooting.
The defense lawyer said he has not decided whether he will appeal Welch's decision not to dismiss the case outright or file an appeal on the issue of whether the mistrial raises a question of double jeopardy.
