Commonwealth v. Wade

• Decision Date: 14 March 2014
• Parties: COMMONWEALTH v. Robert D. WADE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 496
5 N.E.3d 816

COMMONWEALTH
v.
Robert D. WADE.

Supreme Judicial Court of Massachusetts,
Plymouth.

Submitted Nov. 4, 2013.
Argued March 14, 2014.

[5 N.E.3d 818]

Janet Hetherwick Pumphrey, Boston, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

William M. Taylor, for The Innocence Network, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

On September 8, 1997, a Superior Court jury convicted Robert D. Wade of murder in the first degree on a theory of felony-murder and aggravated rape. On direct appeal, the conviction of murder was affirmed and the conviction of aggravated

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rape was vacated as duplicative. See Commonwealth v. Wade, 428 Mass. 147, 155, 697 N.E.2d 541 (1998). Since at least December, 2002, Wade has sought unsuccessfully to obtain deoxyribonucleic acid (DNA) testing of the physical evidence that was used to support the expert opinion evidence introduced at trial.¹ In 2012, the Legislature enacted G.L. c. 278A, “An Act providing access to forensic and scientific analysis” (act). See St. 2012, c. 38. The enactment, which occurred in the wake of national recognition that “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” District Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 55, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009), permits access to forensic and scientific evidence on the filing of a motion by an individual who has been convicted of a criminal offense, who consequently has been incarcerated, and who asserts factual innocence. See G.L. c. 278A, § 2.

On March 26, 2012, Wade filed a motion and affidavit pursuant to G.L. c. 278A, § 3 (§ 3 motion). The motion asserts that he is factually innocent of the crimes of murder and rape. The motion states further that the evidence he seeks to have analyzed has not been subjected to DNA testing because his trial counsel failed to request it; serological evidence presented at trial established that a third party contributed to seminal fluid found in the victim's vagina and on her clothes; and DNA testing could establish the identity of that third party and “may wholly exonerate” the defendant. The motion was denied without prejudice by a judge of the Superior Court who concluded that “the DNA testing sought by [Wade] does not appear to have the potential to produce material evidence.” A second Superior Court judge denied Wade's renewed motion, with a reference to the first denial, and also denied Wade's motion for reconsideration of that denial.

Wade's appeal from the denial of his motion for DNA testing raises issues of first impression regarding the interpretation of G.L. c. 278A. We are called upon to consider whether the motion meets the threshold requirements of G.L. c. 278A, § 3, such that Wade would be entitled to a hearing on his request for DNA testing. We conclude that the motion judge applied an incorrect standard in denying Wade's motion for DNA testing, and that the motion meets the requirements of G.L. c. 278A, § 3. Accordingly, the order denying the motion must be reversed and the matter remanded for an evidentiary hearing pursuant to G.L. c. 278A, § 7.

Background and prior proceedings. We rely on the statement of facts set forth in Commonwealth v. Wade, supra, and in the memorandum of decision denying Wade's § 3 motion, reserving some facts for later discussion of the issues. In sum, the victim was an eighty-three year old woman who suffered from Alzheimer's disease and lived with her son on a farm they owned. Wade worked on the farm and lived in a small building on the property. The victim was found naked on Wade's bed with injuries including a broken hip; she died several weeks later as a result of complications from those injuries. Pretrial examination of samples taken from the victim's vagina and clothing showed the presence of semen and sperm.² Neither the Commonwealth

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nor Wade sought DNA testing pretrial, and such testing has not since been conducted.

Following the affirmance of his murder conviction in 1998, Wade filed a motion in the Superior Court in October, 2002, seeking preservation of trial evidence; that motion was allowed. He thereafter filed a motion for DNA testing of the seminal fluid recovered from the victim and her clothing. That motion was denied in July, 2003, as was his motion for reconsideration. In his subsequent motion for a new trial pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), Wade claimed that his trial counsel was ineffective for failing, among other things, to have requested DNA testing prior to trial; that motion was also denied. Wade then filed a petition in the county court seeking leave to appeal from those denials, which was denied without comment in 2004. In 2004, Wade filed a complaint in the United States District Court for the District of Massachusetts seeking to obtain access to DNA testing; that claim has been stayed but remains pending. ³

In March, 2012, shortly after the enactment of G.L. c. 278A, Wade filed a § 3 motion seeking DNA testing.⁴ On June 22, 2012, a Superior Court judge, who was not the trial judge, denied the § 3 motion on the ground that the requested DNA testing “does not appear to have the potential to produce material evidence” regarding the identification of the perpetrator of the crime and, thus, failed to meet the requirement of G.L. c. 278A, § 3( b)(4). The denial was “without prejudice to [Wade's] right to refile with supplemental information.” ⁵ Wade filed a renewed motion for DNA testing on October 15, 2012. The motion stated that he intended to supplement it with a memorandum of law and exhibits. On December 19, 2012, before any supplemental documentation was filed, a different Superior Court judge, who also was not the trial judge, denied the motion without a hearing in a margin

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ruling that referenced the decision denying the prior motion.⁶ Wade filed a notice of appeal on January 15, 2013. He thereafter filed a petition in the county court pursuant to G.L. c. 278, § 33E, seeking leave to pursue an appeal from the denial of his renewed motion. The single justice allowed the motion and ordered that the appeal proceed before this court. ⁷

At issue on appeal is whether Wade's § 3 motion meets the threshold requirements set forth in G.L. c. 278A, § 3( b)(1)-(5), ( d), to allow him to proceed to a hearing on the request for DNA testing, a question of first impression for this court. Wade contends that the motion judge applied an incorrect standard in denying his motion. The Commonwealth maintains that Wade's motion properly was denied because it did not meet the requirements of G.L. c. 278A, § 3, in that the results of the requested testing lack potential to be material to the identification of the perpetrator, trial counsel was not ineffective in failing to request testing that would have been admissible at the time of trial, and Wade's affidavit fails to assert factual innocence.

Discussion. 1. Statutory framework. Whether the dismissal of Wade's § 3 motion was proper requires first that we determine the appropriate standard of review under G.L. c. 278A, § 3. We review questions of statutory interpretation de novo. Rosnov v. Molloy, 460 Mass. 474, 476, 952 N.E.2d 901 (2011).

“The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Flagg v. AliMed, Inc., 466 Mass. 23, 28, 992 N.E.2d 354 (2013), quoting Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). We construe the statute as “a consistent and harmonious whole,”

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EMC Corp. v. Commissioner of Revenue, 433 Mass. 568, 574, 744 N.E.2d 55 (2001), and “[o]ur primary duty in interpreting a statute is ‘to effectuate the intent of the Legislature in enacting it.’ ” Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744, 920 N.E.2d 33 (2010), quoting International Org. of Masters, Mates & Pilots, Atl. & Gulf Region, AFL–CIO v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813, 467 N.E.2d 1331 (1984).

Chapter 278A creates a two-step procedure for requesting DNA testing or analysis. First, a threshold determination is made by the court in which the conviction was entered as to whether the motion meets the preliminary criteria set forth in G.L. c. 278A, § 3. If those criteria are met, a hearing “shall” be conducted pursuant to G.L. c. 278A, §§ 6 and 7, to determine whether a petitioner has established by a preponderance of the evidence sufficient facts for a judge to order DNA testing or further discovery. Here we are concerned only with the threshold review at the first step, that is, whether Wade's motion meets the preliminary requirements of G.L. c. 278A, § 3.

Review at this initial stage must take place “expeditiously.” ⁸G.L. c. 278A, § 3 ( e ). The reviewing judge is required to “order a hearing on the motion if the motion meets the requirements of [ G.L. c. 278A, § 3].” G.L. c. 278A, § 6 ( a ). Such a determination is “based on the information contained in the motion.” G.L. c. 278A, § 3 ( e ). The motion must contain all of the information specified by G.L. c. 278A, § 3 ( b ),⁹ and, “when relevant, shall include specific references to the record in the underlying case,” or to affidavits of someone with “personal knowledge of the factual basis of the motion.” Id. The § 3 motion also must explain why the requested testing was not conducted previously, by reference to one of five statutory reasons. See G.L. c. 278A, § 3 ( b ) (5). In addition, the moving party must file “an affidavit stating that the moving...