Commonwealth v. Wade

• Decision Date: 29 July 2016
• Docket Number: SJC–11913.
• Citation: 475 Mass. 54,55 N.E.3d 409
• Parties: COMMONWEALTH v. Robert D. WADE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

475 Mass. 54

55 N.E.3d 409

COMMONWEALTH

v.Robert D. WADE.

SJC–11913.

Supreme Judicial Court of Massachusetts, Plymouth.

Submitted Jan. 11, 2016.

Decided July 29, 2016.

Janet H. Pumphrey, Boston, for the defendant.

Mary Lee, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Ira L. Gant, Stephanie Roberts Hartung, & David Lewis for Committee for Public Counsel Services Innocence Program & others.

Michael D. Ricciuti, Kathleen D. Parker, & Patrick C. McCooe, Boston, for Boston Bar Association.

Martin W. Healy, Boston, for Massachusetts Bar Association.

Stanley L. Donald, pro se.

Matthew M. Burke, Dara A. Reppucci, Hillel Nadler, Shivan Sarin, Boston, & David Lewis for Massachusetts Association of Criminal Defense Lawyers.

Present: SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.¹

DUFFLY

, J.

This case requires us to decide whether the petitioner, Robert Wade, who filed a motion in the Superior Court seeking postconviction testing of biological material pursuant to G.L. c. 278A (“An Act providing access to forensic and scientific analysis”) (act), see St. 2012, c. 38, has satisfied the requirements of the act and therefore is entitled to the testing he seeks.

The Legislature enacted G.L. c. 278A to create a process “separate from the trial and any subsequent proceedings challenging an underlying conviction, that permits forensic and scientific analysis of evidence or biological material, the results of which could support a motion for a new trial.” Commonwealth v. Clark, 472 Mass. 120, 121–122, 34 N.E.3d 1 (2015)

. The Legislature's stated purpose in enacting G.L. c. 278A was “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques ... [to] provide a more reliable basis for establishing a factually correct verdict than the evidence available at the time of the original conviction.” Commonwealth v. Wade, 467 Mass. 496, 504, 5 N.E.3d 816 (2014) (Wade II ), quoting 2011 Senate Doc. No. 753 and 2011 House Doc. No. 2165.

We conclude that because Wade has demonstrated that “the requested analysis had not yet been developed at the time of conviction,” G.L. c. 278A, § 3 (b ) (5)(i)

, he has met the requirement of the act to establish one of the five enumerated reasons explaining why the requested testing was not previously conducted. See G.L. c. 278A, § 3 (b ) (5)(i)-(v). It was therefore an abuse of discretion for the Superior Court judge to deny Wade's motion for scientific testing on the ground that Wade also was required to establish that the enumerated reason was the “primary reason” that his trial attorney did not seek the requested analysis, and that a reasonably effective attorney would have done so. Accordingly, the order denying Wade's motion for scientific testing must be reversed.

1. Statutory framework. The act establishes a two-step procedure for obtaining postconviction forensic or scientific analysis. See Wade II, supra at 501, 5 N.E.3d 816

. The first step involves a threshold determination whether a motion filed pursuant to G.L. c. 278A, § 3 (§ 3 motion), satisfies the criteria set forth in that section. See id. at 503–504, 5 N.E.3d 816. This step is essentially “nonadversarial,” and the determination is to be made based primarily on the moving party's filings. Id. At this threshold stage, “a moving party is required only to point to the existence of specific information that satisfies the statutory requirements.” Commonwealth v. Donald, 468 Mass. 37, 41, 8 N.E.3d 727 (2014).

If the requirements of the first step are satisfied, the moving party advances to the second step of the procedure, an evidentiary hearing pursuant to G.L. c. 278A, § 7

. Wade II, supra at 501, 5 N.E.3d 816. See G.L. c. 278A, §§ 6, 7. At that hearing, the moving party must establish by a preponderance of the evidence each of the six factors set forth in § 7 (b ) (1)-(6).²

See Wade II, supra at 503, 5 N.E.3d 816

. The third factor, § 7 (b ) (3), requires a moving party to demonstrate that “the evidence or biological material has not been subjected to the requested analysis for any of the reasons” enumerated in § 3 (b ) (5)

. Those reasons are

“(i) the requested analysis had not yet been developed at the time of the conviction;

“(ii) the results of the requested analysis were not admissible in the courts of the commonwealth at the time of the conviction;

“(iii) the moving party and the moving party's attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction;

“(iv) the moving party's attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the commonwealth, a reasonably effective attorney would have sought the analysis and either the moving party's attorney failed to seek the analysis or the judge denied the request; or

“(v) the evidence or biological material was otherwise unavailable at the time of the conviction” (emphasis added).

G.L. c. 278A, § 3 (b ) (5)

.

Where a moving party has established “any of the reasons” enumerated in § 3 (b ) (5)

, thereby satisfying § 7 (b ) (3), and has also satisfied the other five requirements of § 7 (b ), “[t]he court shall allow the requested forensic or scientific analysis.” Id.

2. Factual and procedural background. In 1997, a Superior Court jury convicted Wade of murder in the first degree on a theory of felony-murder, predicated on his conviction of aggravated rape. See Commonwealth v. Wade, 428 Mass. 147, 155, 697 N.E.2d 541 (1998)

. Since 2002, Wade has been seeking postconviction testing of physical evidence introduced at his trial. Wade II, 467 Mass. at 497, 5 N.E.3d 816. We previously concluded, in Wade II, supra, that Wade had satisfied the requirements of the act's first step, § 3. As a necessary prerequisite of § 3, Wade denied having raped the victim, asserted that he was innocent of rape and murder, and submitted an affidavit from a forensic expert stating that the requested testing would, in his opinion, “determine conclusively” whether Wade was a contributor or the sole contributor to the deoxyribonucleic acid (DNA) found on samples taken from the victim's vagina and clothing. Id. at 507, 5 N.E.3d 816

. We determined that Wade was thus entitled to proceed to the second step of the procedure on the question whether his motion for DNA testing should be granted, and ordered the matter remanded to the Superior Court for an evidentiary hearing pursuant to § 7.

Wade initially filed his § 3

motion seeking DNA testing under § 3 (b ) (5)(iv), what we will refer to as the “reasonably effective attorney” prong. Prior to the hearing, Wade moved to supplement his motion by asserting an additional or alternative basis for relief under § 3 (b ) (5)(i)

, the “undeveloped analysis” prong, which provides that the evidence was not subjected to the requested analysis because “the requested analysis had not yet been developed at the time of the conviction.” G.L. c. 278A, § 3 (b ) (5)(i). The motion judge, a different judge from the one who had denied Wade's § 3 motion, and who also was not the trial judge, allowed the motion to supplement.³

Also prior to the hearing, but after Wade's motion to supplement had been allowed, the Commonwealth filed a motion seeking leave to summons and examine Wade's trial counsel on the question whether a “reasonably effective attorney” would have sought the requested testing before trial. Wade filed a motion seeking to preclude such testimony. The judge allowed the Commonwealth's motion, and Wade filed a petition for relief pursuant to G.L. c. 211, § 3

, in the county court. The single justice determined that examination of Wade's trial counsel could proceed where, “without revealing attorney-client communications,” the testimony could offer evidence on the question whether a “reasonably effective attorney” would have sought the requested DNA analysis before trial.

During the evidentiary hearing, postconviction counsel asserted that Wade was required to establish only one of the five reasons under § 3 (b ) (5)

. When the Commonwealth sought to elicit responses from Wade's trial counsel, postconviction counsel objected on the ground that the answers were privileged. His objections were overruled. Postconviction counsel then orally waived the claim under the reasonably effective attorney prong, in order to proceed solely on the undeveloped analysis prong.⁴

The Commonwealth asserted, as it does on appeal, that even where a moving party seeks relief solely under the undeveloped analysis prong, the act necessarily contemplates that trial counsel's testimony may be used to demonstrate both the state of counsel's knowledge at the time of trial and counsel's trial strategy, in order to determine the actual reason that the evidence was not tested. The Commonwealth then asked trial counsel what he had been told by Wade about his encounter with the victim. When counsel again declined to answer, the judge said, “I order you to answer that question.” Trial counsel then did so. Postconviction counsel moved to strike the testimony disclosing privileged information. The motion was denied.

Following the evidentiary hearing, the judge found that the requested analysis had not been developed at the time of Wade's conviction, thereby finding that Wade had satisfied the undeveloped analysis prong, which in turn satisfies § 7 (b ) (3)

.⁵ But the judge rejected Wade's assertion that he need only satisfy one of the reasons set forth in § 3 (b ) (5)

in order to satisfy § 7 (b ) (3). According to the judge, “the proper inquiry under [§ ] 7 (b ) (3) is what [is] the primary ‘reason,’ i.e.[,] the primary cause, why the material was not previously subjected to the requested analysis.” In connection...