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Commonwealth v. Lyons

Appeals Court of Massachusetts, Plymouth

June 6, 2016

Commonwealth
v.
Marie E. Lyons

         Argued December 9, 2015.

          Indictment found and returned in the Superior Court Department on November 5, 2001.

         A postconviction motion for access to untested evidence, filed on September 10, 2012, was heard by Linda E. Giles, J., and a motion for reconsideration, filed on August 18, 2014, was considered by her.

          Sara J. van Vliet ( Nicholas J. Ramacher with her) for the defendant.

          Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

         Present: Green, Vuono, & Meade, JJ.

          OPINION

          [51 N.E.3d 477] Vuono, J.

          The defendant, Marie E. Lyons, is serving a life sentence for the murder in the second degree of Gerard Charron.[1] She appeals from the denial of her postconviction motion, brought pursuant to G. L. c. 278A, § 3 (§ 3 motion), in which she

Page 486

sought access to biological evidence for the purpose of conducting deoxyribonucleic acid (DNA) testing. The key evidence consists of two strands of hair, one found in each of the victim's hands when his body was discovered. The primary issue raised is whether Lyons is entitled to discovery regarding the current location and condition of the evidence and documentation of the chain of custody of the hair. For the reasons that follow, we conclude that Lyons's request for discovery should have been allowed, and therefore, we vacate the order denying the § 3 motion and remand the matter to the Superior Court for additional proceedings.

          Background.

          1. Facts.

          The jury that convicted Lyons in 2004 could have found the following facts. Lyons and Charron had been dating for about four months before Charron was killed. The couple were homeless and camping in a public park in Brockton on September 12, 2001, when, shortly before 1:00 a.m., the police received four 911 calls. One of the callers, who lived nearby, testified at trial that at the time he heard loud voices coming from [51 N.E.3d 478] the park; the loudest voice, that of a woman, said, " Oh, my God, what have I done." An emergency medical technician arrived at the scene shortly thereafter and found the body of the victim on a blanket, completely covered except for the top of his head. The cause of death was sharp force and blunt force head trauma inflicted by a sharp instrument. Lyons was alone at the scene, upset and crying, when the police arrived a few minutes later. She had blood on her hands, clothing, and sneakers. The Commonwealth's expert opined that blood spatter on Lyons's clothing was created by cast-off blood from a weapon used to stab Charron in the head. No weapon was recovered.

         When Charron's body was examined, a strand of hair was retrieved from each of his hands. Although the hair was available for scientific and forensic analysis before trial, neither the Commonwealth nor Lyons conducted any testing. The two strands of hair and a known hair sample from the victim's head were introduced in evidence as exhibits 71-73 by defense counsel at the conclusion of the defense's case.[2] In his closing argument, defense counsel attempted to persuade the jury that DNA testing of the hair would have identified the murderer and that the Commonwealth's failure to test the hair established reasonable

Page 487

doubt.[3]

         2. The § 3 motion.

         Lyons's § 3 motion asserted her factual innocence of the crime and that evidence of hair belonging to a third party in the victim's hands would be strong evidence of her innocence and would help identify the actual perpetrator. In her affidavit submitted in support of the motion, Lyons claimed that she was unaware that the strands of hair existed until the evidence was discussed in court during her trial and that, if she had known about the hair, she would have requested that DNA testing be conducted prior to trial.[4] The affidavit also set forth Lyons's postconviction efforts to obtain access to the evidence. She specifically averred that the " State [p]olice ha[ve] refused to provide any information concerning the present location or condition of any of the evidence concerning my case."

         An affidavit from one of the attorneys representing Lyons in connection with her motion stated that Lyons's trial counsel " reported that he had no information concerning the location or condition of any physical evidence in this case, including the hair evidence." Motion counsel also averred that one of the assistant district attorneys who tried the case (the ADA[5]) had informed him that the Commonwealth also " was unaware of the location or condition of the physical evidence in this case." [6] The § 3 motion specifically requested discovery regarding the current location of the evidence and documentation of the chain of custody of the hair. See G. L. c. 278A, § 3( c ).

         The § 3 motion was reviewed by the trial judge, who determined that Lyons [51 N.E.3d 479] had satisfied the statute's threshold requirements, see G. L. c. 278A, § 3( e ), but the judge did not address Lyons's request for discovery. As required by the statute, the Commonwealth was given sixty days to respond to Lyons's motion. See G. L. c. 278A, § 4( b ). That response came in the form of a motion to dismiss in which the Commonwealth claimed that the " statute does not provide for the routine testing or retesting for

Page 488

analysis of alleged biological materials that were readily available to a defendant at [the] time of trial." The Commonwealth next argued that the evidence against Lyons was strong and, because neither the prosecution nor trial counsel " ever suggested that the hair belonged to the defendant," the results of DNA testing would have no probative value. The Commonwealth pointed out that trial counsel had made a tactical decision not to test the hair and had argued " vigorously" in closing that Lyons should be acquitted because the Commonwealth failed to conduct DNA testing. The Commonwealth further asserted that the jury were able to physically inspect the two strands of hair and the victim's hair sample and would have known that Lyons had shoulder-length blonde hair and that the victim had short, darker hair. Thus, the Commonwealth claimed that the jury could have concluded on their own whether the hair in question belonged to a third party.

         3. The hearing.

         The trial judge held a hearing on the § 3 motion on February 12, 2014.[7] During the course of the hearing, at which Lyons was present, a dispute arose regarding the chain of custody of the hair. The dispute centered upon two things: the current lo-

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cation of the evidence and the condition of the exhibits. It can be inferred from the record that, upon the conclusion of the trial, all of the evidence, including exhibits 71-73, remained in the office of the Superior Court clerk [51 N.E.3d 480] for Plymouth County for six years before being returned to the State police in 2010. At the time of the hearing, the ADA " presume[d]" that the evidence was in a storage room maintained by the State police.[8] However, prior to the hearing, no one involved had actually seen any of the evidence since the trial, including exhibits 71-73. Motion counsel for Lyons[9] had no access to the evidence because the judge had not ruled upon Lyons's motion for discovery, which included a request to view the exhibits. The ADA had not looked at the evidence because, as the ADA stated, " I'm not going near it while it's under litigation for obvious reasons."

         The second area of dispute concerned the condition of the envelopes containing the strands of hair when they were sent to the jury room. According to the ADA, at trial the hairs were in small manila envelopes that the jurors could open. Thus, the ADA argued, even if the evidence could be located, the chain of custody had been broken by virtue of the fact that the hair was available for inspection by the jury. The judge pursued this point with Lyons's motion counsel and asked, " Even if we obtain those envelopes[,] how can anybody be sure [w]hat the content[ ] of those envelopes is right now?" Counsel ...


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