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Powell v. Powell

Superior Court of Massachusetts, Suffolk

November 10, 2016

Powell
v.
John Powell

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR POST-CONVICTION ACCESS TO EVIDENCE AND FORENSIC ANALYSIS PURSUANT TO G.L.c. 278A

          Robert B. Gordon, Justice

         In November of 2005, a Suffolk County jury convicted John Powell (" Powell" or the " Defendant") of (1) murder in the second degree, G.L.c. 265, § 1; (2) assault with intent to kill, G.L.c. 265, § 18(b), a lesser included offense of the charged assault with intent to murder; (3) unlawful possession of a firearm, G.L.c. 269, § 10(a); (4) unlawful possession of ammunition, G.L.c. 269, § 10(h); and (5) possession of cocaine with intent to distribute, G.L.c. 94C, § 32A. Powell appealed these convictions, and the Appeals Court affirmed all but the conviction for possession of cocaine with intent to distribute (which it reversed). Powell subsequently filed a motion for a new trial, which was denied.[1]

         With an eye toward a second new trial motion, the Defendant has now filed a motion for forensic discovery pursuant to G.L.c. 278A. In this motion, Powell seeks DNA testing of blood on a baseball bat that was found at the crime scene and used by the victim in the hours before his murder. The Commonwealth opposes the motion, arguing that the Defendant cannot show, as he must under G.L.c. 278A, § 7(b)(4), that the testing will potentially result in evidence that is material to the identity of the murder's perpetrator. Upon consideration the parties' arguments and a review of the appellate authority construing and applying Chapter 278A, the Court concludes that the Defendant's motion shall be ALLOWED .

         BACKGROUND

         The victim, Paul Gauthier, was shot and killed in his apartment at 18 Wardman Road in Roxbury. Gauthier was found in the kitchen/dining area, lying in a pool of blood and near a silver baseball bat. There was blood on the victim's hands, on the baseball bat, and throughout the victim's apartment. Earlier that day, Gauthier had used the baseball bat to vandalize 16 Wardman Street, a reputed crack house where the Defendant sold cocaine, causing extensive property damage. The victim had also been seen chasing two unidentified black men (neither of whom was the Defendant) with the bat in his hands. The Defendant seeks to test the blood-stained baseball bat in accordance with G.L.c. 278A, asserting that the presence of third-party DNA will show that someone other than Powell ( i.e., someone whom Gauthier may have assaulted and injured with the bat earlier in the day) had a motive to commit the murder.

          A post-conviction request for DNA testing under G.L.c. 278A activates two stages of analysis. Commonwealth v. Wade, 467 Mass. 496, 501, 5 N.E.3d 816 (2014) ( Wade II ). At the first stage, the Court conducts a limited inquiry into whether the moving party has satisfied the threshold requirements of G.L.c. 278A, § 3. Commonwealth v. Donald, 468 Mass. 37, 41, 8 N.E.3d 727 (2014). Under Section 3, the moving party is required to point to specific information demonstrating that he meets the qualifying criteria of Section 3(b), and submit an affidavit of factual innocence as required by Section 3(d).[2] Id. " This step is essentially 'nonadversarial, ' and the determination is to be made based primarily on the moving party's filings." Commonwealth v. Wade, 475 Mass. 54, 56, 55 N.E.3d 409 (2016) ( Wade III ). In May 2016, this Court (Brassard, J.) found that Powell had satisfied the Section 3 criteria, and that his motion should thus proceed to the next stage of analysis.

         The Defendant's motion is now at the second stage. Ordinarily at this stage, the Court holds an evidentiary hearing in which the moving party is required to demonstrate by a preponderance of the evidence each of the six factors set forth in Section 7(b)(1)-(6). Id. ; G.L.c. 278A, § § 6-7. Those factors are:

(1) that the evidence or biological material exists;
(2) that the evidence or biological material has been subject to a chain of custody that is sufficient to establish that it has not deteriorated, been substituted, tampered with, replaced, handled or altered such that the results of the requested analysis would lack any probative value;
(3) that the evidence or biological material has not been subjected to the requested analysis for any of the reasons in [G.L.c. 278A, § 7(b)(5)(i)-(v)];
(4) that the requested analysis has the potential to result in evidence that is material to the moving party's identification as the perpetrator of the crime in the underlying case;
(5) that the purpose of the motion is not the obstruction of justice or delay; and
(6) that the results of the particular type of analysis being requested have been found to be admissible in courts of the commonwealth.

G.L.c. 278A, § 7(b). In the case at bar, the Court did not conduct an evidentiary hearing. Instead, and with the consent of both parties, the Court held only a non-evidentiary hearing on the motion.[3] In opposing the Defendant's motion, the Commonwealth's principal contention is that the requested DNA testing has no potential to adduce evidence that is material to the Defendant's identification as the perpetrator of the crime. It is on this basis argued that the Defendant cannot satisfy factor 4 of Section 7(b).[4] Whether the Commonwealth is correct turns on an interpretation of the word " material" as used in factor 4, a term not defined in the text of Chapter 278A. This ...


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