Heard: December 3, 2018.
Evidence, Scientific test, Relevancy and materiality,
Self-defense. Self-Defense. Practice, Criminal,
Postconviction relief. Statute, Construction. Homicide.
found and returned in the Superior Court Department on April
16, 2004. A postconviction motion for forensic testing, filed
on April 10, 2018, was considered by Constance M. Sweeney, J.
Merritt Schnipper for the defendant.
L. Sheppard-Brick, Assistant District Attorney, for the
M. Kavanaugh, Committee for Public Counsel Services,
Stephanie Roberts Hartung, Isaac N. Saidel-Goley, Sarah L.
Rosenbluth, Sara J. van Vliet, & Sharon L. Beckman, for
New England Innocence Project & others, amici curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
in 2012, see St. 2012, c. 38, G. L. c. 278A (chapter 278A)
allows those who have been convicted but assert factual
innocence to have access to forensic and scientific testing
of evidence and biological material that has the potential to
prove their innocence. G. L. c. 278A, § 2. Here, we
address whether the defendant, who claims that no crime
occurred, may make a prima facie case for a chapter 278A
request, which, as relevant here, includes (1) asserting
factual innocence, and (2) providing information
demonstrating that the testing has the potential to result in
evidence that is material to his identity as the perpetrator
of the crime in the underlying case. G. L. c. 278A, § 3
(b) (4), (d). For the reasons discussed below, we conclude
that he may.
initial matter, only a defendant who "asserts factual
innocence of the crime for which [he or she] has been
convicted" is eligible to request postconviction
forensic testing pursuant to chapter 278A. G. L. c. 278A,
§ 2. Those eligible to request such testing must satisfy
the statutory requirements set forth in chapter 278A, which
consist of two procedural stages: a motion stage and, if the
motion is allowed, a hearing stage. Commonwealth v.
Wade, 467 Mass. 496, 501 (2014) (Wade II),
S.C., 475 Mass. 54 (2016).
pursuant to § 3, the individual seeking the analysis
must present by way of motion "information demonstrating
that the 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,"
among other things. G. L. c. 278A, § 3 (b) (4). In
addition, the movant must include an affidavit "stating
that [he or she] is factually innocent of the offense of
conviction and that the requested forensic or scientific
analysis will support the claim of innocence." G. L. c.
278A, § 3 (d). If it chooses, the Commonwealth may
provide a response "to assist the court" in
determining whether the defendant's motion meets the
preliminary statutory requirements. G. L. c. 278A, § 3
(e) . However, the motion stage is "essentially
nonadversarial." Wade II, 467 Mass. at 503.
court finds that the preliminary requirements at the motion
stage have been satisfied and allows the motion, the parties
proceed to the next step in the process, in which the
Commonwealth must file a response that "include[s] any
specific legal or factual objections that [it] has to the
requested analysis." G. L. c. 278A, § 4 (c) . The
court then will hold an evidentiary hearing. G. L. c. 278A,
§ 6. At the hearing, the movant must establish by a
preponderance of the evidence each of the factors enumerated
in G. L. c. 278A, § 7 (b), including that "the
requested analysis has the potential to result in evidence
that is material to [his or her] identification as the
perpetrator of the crime." See G. L. c. 278A, §§ 3
(e), 6, 7 (b) (4). If such a showing is made, the
court shall allow the requested forensic or scientific
analysis, the results of which may be used to support a
motion for a new trial. See G. L. c. 278A, § 7 (b);
Wade II, 467 Mass. at 505.
we are concerned with whether a defendant who alleges lawful
self-defense (1) is eligible to move for chapter 278A testing
in the first instance by asserting factual innocence as
required by G. L. c. 278A, § 2; and (2) is able to
provide "information demonstrating that the analysis has
the potential to result in evidence that is material to [his
or her] identification as the perpetrator of the crime in the
underlying case" as required by G. L. c. 278A, § 3
and prior proceedings.
2004, the defendant was indicted for murder and unlawful
possession of a firearm and ammunition. One year later, the
defendant pleaded guilty to the lesser included offense of
manslaughter, as well as the associated weapons charges, and
received a sentence of from eighteen to twenty years in State
change of plea hearing, the Commonwealth presented the
following facts. The defendant and the victim approached one
another and engaged in a loud verbal argument, and then a
physical altercation ensued. A witness observed the victim
appear to reach for his waistband. The defendant then took a
firearm and shot the victim, causing the victim to fall to
the ground. The defendant shot again. He ran away for a short
period of time, but he returned, fired again, and then fled.
the defendant agreed to the Commonwealth's recitation of
the facts during his change of plea colloquy, he now disputes
those facts and asserts his innocence, claiming that he acted
in self-defense. He alleged in the affidavit accompanying his
chapter 278A motion that he grabbed the victim's wrist
when the victim pulled out a gun, and pushed against the
victim, at which time he heard two gunshots in close
succession. The defendant further alleged that he did not
take the gun with him when he fled, and that he did not
return to shoot the victim again.
defendant filed two chapter 278A motions in 2013 and 2016;
both were denied. In 2018, the defendant filed his third
chapter 278A motion, requesting that clothing recovered from
the victim be tested for traces of gunshot residue and that
shell casings recovered at the crime scene be tested for
fingerprints. The defendant claimed that forensic testing of
this evidence would show that the weapon belonged to the
victim and that the defendant shot the victim in
Commonwealth filed a response asserting that the defendant
was not eligible to request relief pursuant to G. L. c. 278A,
§ 2, and that the requested analysis did not meet the
requirement of G. L. c. 278A, § 3 (b) (4). In a margin
endorsement, the motion judge denied the defendant's
motion "for the reasons set forth in the
Commonwealth's opposition." The defendant appealed,
and we granted his application for direct appellate review.
defendant argues that the judge erred in denying his chapter
278A motion because (1) the defendant properly asserted his
factual innocence and (2) the requested testing has the
potential to result in evidence that is material to his
identification as the perpetrator of the crime. See G. L. c.
278A, §§ 2, 3 (b) (4), (d). We review the
defendant's claims on a de novo basis. See