Commonwealth v. Wade , 475 Mass. 54 ( 2016 )

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SJC-11913
COMMONWEALTH vs. ROBERT D. WADE.
Plymouth. January 11, 2016. - July 29, 2016.
Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.1
Deoxyribonucleic Acid. Evidence, Scientific test. Practice,
Criminal, Postconviction relief, Waiver, Capital case.
Statute, Construction. Witness, Privilege. Attorney at
Law, Attorney-client relationship. Homicide. Felony-
Murder Rule. Rape.
Indictment found and returned in the Superior Court
Department on December 6, 1993.
Following review by this court, 428 Mass. 147 (1998), and
467 Mass. 496 (2014), a motion for deoxyribonucleic acid
testing, which had been filed on March 26, 2012, and which was
supplemented on April 30, 2014, was heard by Charles J. Hely, J.
A request for leave to appeal was allowed by Spina, J., in
the Supreme Judicial Court for the county of Suffolk.
Janet H. Pumphrey for the defendant.
Mary Lee, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:
1
Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
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 for Boston Bar Association.
Martin W. Healy for Massachusetts Bar Association.
Stanley L. Donald, pro se.
Matthew M. Burke, Dara A. Reppucci, Hillel Nadler, Shivan
Sarin, & David Lewis for Massachusetts Association of Criminal
Defense Lawyers.
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 (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
3
establishing a factually correct verdict than the evidence
available at the time of the original conviction." Commonwealth
v. Wade, 467 Mass. 496, 504 (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. 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. This step is essentially
"nonadversarial," and the determination is to be made based
4
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 (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. 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
2
General Laws c. 278A, § 7 (b), provides in full:
"The court shall allow the requested forensic or
scientific analysis if each of the following has been
demonstrated by a preponderance of the evidence:
"(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
5
II, supra at 503. 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),
"(6) that the results of the particular type of
analysis being requested have been found to be admissible
in courts of the commonwealth."
6
"[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
(1988). Since 2002, Wade has been seeking postconviction
testing of physical evidence introduced at his trial. Wade II,
467 Mass. at 497. 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. 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
7
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
3
As discussed infra, Wade waived his reliance on the
reasonably effective attorney prong during the evidentiary
hearing.
8
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
4
We reject the Commonwealth's argument that G. L. c. 278A,
§ 15, prohibits a moving party from waiving or withdrawing a
claim that has been asserted under G. L. c. 278A, § 3 (b) (5).
General Laws c. 278A, § 15, states explicitly that "[t]he right
to file a motion under this chapter shall not be waived." By
its plain language, this provision was intended to protect a
moving party's right to file a motion seeking scientific
testing. Nothing in the statutory language, however, prohibits
a moving party from withdrawing a claim under one prong of G. L.
c. 278A, § 3 (b) (5), and choosing to proceed only under one of
the remaining theories presented in the party's motion, nor does
any portion of G. L. c. 278A (act) suggest a legislative intent
to preclude a party from withdrawing or dismissing a claim once
filed, as generally permitted with any motion for postconviction
relief.
9
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,'
5
The judge also found that Wade had satisfied four of the
other five requirements of § 7 (b). The judge did not reach one
of the requirements, § 7 (b) (5), which requires that a moving
party establish that "the purpose of the motion is not the
obstruction of justice or delay." The sole evidence before the
judge on this issue was an affidavit by postconviction counsel
attesting to her efforts, spanning thirteen years, to obtain
deoxyribonucleic acid (DNA) testing on Wade's behalf through the
Massachusetts and Federal courts. The Commonwealth did not
dispute that Wade had satisfied this requirement. Where there
was no live testimony and a factual finding must be made on the
basis of a documentary record alone, we are "in the same
position as the motion judge" to resolve the issue. See
Commonwealth v. Clark, 472 Mass. 120, 130, 135 (2015). Having
carefully reviewed counsel's affidavit, we conclude that the
purpose of Wade's motion was not to delay or to obstruct justice
and Wade therefore has satisfied all five of the other
requirements of § 7 (b).
10
i.e.[,] the primary cause, why the material was not previously
subjected to the requested analysis." In connection with this
inquiry, the judge relied on the privileged communications
disclosed by Wade's trial counsel. Ultimately, the judge denied
Wade's § 3 motion on the ground that he had not met the
requirements of the reasonably effective attorney prong because
a "reasonably effective attorney" would not have sought the
requested analysis. Wade then filed a second petition pursuant
to G. L. c. 278, § 33E, seeking leave to appeal from the denial
of his § 3 motion for forensic and scientific testing under
G. L. c. 278A, § 7, and the single justice allowed the appeal to
proceed before the full court.
3. Discussion. a. Standard of review. We review a
question of statutory interpretation de novo. Commonwealth v.
Ventura, 465 Mass. 202, 208 (2013). "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." Commonwealth v. Millican, 449 Mass. 298, 300
(2007), citing Hanlon v. Rollins, 286 Mass. 444, 447 (1934). A
guiding principle of statutory interpretation is "that the
statutory language should be given effect consistent with its
11
plain meaning and in light of the aim of the Legislature unless
to do so would achieve an illogical result." Sullivan v.
Brookline, 435 Mass. 353, 360 (2001), and cases cited.
b. Statutory reason testing previously not performed. We
address first whether the act permits a judge to consider any of
the other reasons enumerated in § 3 (b) (5) (i)-(v), once a
moving party has established one of those reasons, to explain
why the evidence has not been subjected to the requested
analysis. See G. L. c. 278A, § 7 (b) (3). General Laws
c. 278A, § 7 (b) (3), mandates that the court "shall allow" the
requested testing if the moving party establishes, in addition
to the other required factors under G. L. c. 278A, § 7 (b), that
the testing was not conducted previously "for any of the
reasons" enumerated in § 3 (b) (5) (i)-(v). The plain meaning
of the phrase "for any of the reasons" is that the requirement
is satisfied when any one of the several enumerated alternatives
is met. See, e.g., G. L. c. 90, § 32G ("registrar may suspend
or revoke a license . . . for any of the following causes");
G. L. c. 140, § 131 (e) (State police shall notify State
firearms licensing authority "whether there is reason to believe
that the applicant is disqualified for any of the foregoing
reasons"). Thus, the phrase "for any of the reasons" means that
a moving party satisfies the requirement of § 7 (b) (3) once the
party has established any one of the enumerated reasons. See
12
Olmstead v. Department of Telecomm. & Cable, 466 Mass. 582, 588
(2013), quoting Massachusetts Broken Stone Co. v. Weston, 430
Mass. 637, 640 (2000) ("we give effect to a statute's 'plain and
ordinary meaning' where the statute's words are clear").
Moreover, the use of the word "or" to separate each of the
enumerated reasons clearly evinces the Legislature's intent that
a moving party may satisfy this prong by establishing any one of
the enumerated reasons. "The word 'or' is given a disjunctive
meaning unless the context and the main purpose of all the words
demand otherwise." Nuclear Metals, Inc. v. Low Level
Radioactive Waste Mgt. Bd., 421 Mass. 196, 212 (1995), quoting
Eastern Mass. St. Ry. v. Massachusetts Bay Transp. Auth., 350
Mass. 340, 343 (1966), and cases cited. The language of the act
plainly indicates the Legislature's intent to provide a moving
party with a choice among several, distinct reasons advanced by
the moving party to explain why the material had not been
previously subjected to the requested testing. Nothing in the
context or the stated statutory purpose of the act suggests that
we should interpret the word "or" in § 3 (b) (5) to have
anything but its ordinary disjunctive meaning.
Indeed, it would be nonsensical to attribute a conjunctive
meaning to the word "or" as used in this section, given that at
least some of the enumerated reasons are mutually exclusive.
The reasonably effective attorney prong, for instance, presumes
13
that the requested analysis was developed at the time of
conviction, that the results of such analysis were admissible at
trial, and that the moving party or the moving party's trial
counsel were aware that the evidence existed. See G. L.
c. 278A, § 3 (b) (5) (iv). By contrast, the first three prongs
require a moving party to establish, respectively, that the
requested analysis had not been developed, that the results of
the requested analysis were not admissible at trial, or that
neither the moving party nor the moving party's attorney was
aware that the evidence existed. See G. L. c. 278A,
§ 3 (b) (5) (i)-(iii).6
Properly understood, each of these five enumerated reasons
provides a moving party with alternate pathways to establish
that he or she is entitled to the requested analysis. See
Commonwealth v. Williamson, 462 Mass. 676, 681 (2012), quoting
Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 316
(1991) ("Statutes should be read 'as a whole to produce internal
consistency"). And the reasonably effective attorney prong
permits a moving party to obtain the requested analysis even
where the moving party is unable to satisfy any of the three
preceding prongs. See G. L. c. 278A, § 3 (b) (5) (iv). That
6
The fifth prong provides a final path by which a moving
party may obtain the requested analysis, by establishing that
the "evidence or biological material was otherwise unavailable
at the time of conviction." G. L. c. 278A, § 3 (b) (5) (v).
14
is, even where the moving party or his or her attorney was aware
of the existence of the evidence, the requested analysis had
been developed at the time of conviction, and the results of
such analysis would have been admissible, a moving party
nonetheless may obtain the requested analysis where the party
can establish that a "reasonably effective attorney" would have
requested it, but that his trial counsel did not do so. Id.
For the foregoing reasons, we conclude that the Legislature
could not have intended that a moving party must also satisfy
the reasonably effective attorney prong if the party has already
satisfied the undeveloped analysis prong. Accordingly, because
Wade satisfied the requirement of § 3 (b) (5) (i), the
undeveloped analysis prong, he was not required to satisfy any
of the other prongs of § 3 (b) (5).
c. "Primary" or "actual" reason testing was not conducted.
We turn to discussion of the judge's determination that Wade was
required also to establish the "primary reason" why the evidence
was not tested previously. The Commonwealth argues that the
judge's reasoning was correct, and that the statute indeed
requires a moving party to prove the "actual reason" that the
testing was conducted. The Commonwealth maintains further that
the Legislature intended to preclude a moving party's access to
postconviction scientific testing if the "actual reason" the
testing was not conducted was a strategic decision made by "a
15
reasonably effective attorney."
The words "primary reason" or "actual reason" do not appear
in the referenced statutory provisions, or anywhere else in the
language of the act. Nor is there anything in the act from
which it can be gleaned that the Legislature intended to require
such a finding, or to impose additional burdens on petitioners
seeking scientific testing beyond the requirements mandated by
the statutory language. The act lists five alternative reasons
on which a party may rely to show why testing was not performed.
It contains no requirement that a moving party prove "the
primary reason" among them. Rather, as discussed, a moving
party satisfies § 7 (b) upon establishing that "any of the
reasons" set forth in § 3 (b) (5) are applicable to the facts of
the party's case. "We do not read into the [act] a provision
which the Legislature did not see fit to put there, nor add
words that the Legislature had an option to, but chose not to
include." Commissioner of Correction v. Superior Court Dep't of
the Trial Court for the County of Worcester, 446 Mass. 123, 126
(2006).
Moreover, our decision in Wade II, supra, forecloses the
argument that a moving party may not obtain requested testing if
a reasonably effective trial counsel did indeed make a strategic
decision not to have the material tested at the time of trial.
In that case, we expressly rejected the argument that the
16
meaning of "a reasonably effective attorney" under
§ 3 (b) (5) (iv) imports the standard of ineffective assistance
of counsel. See Wade II, supra at 511-512. We concluded that
the act's inquiry, whether "a reasonably effective attorney"
would have sought the requested testing, is an objective one.7
Id. at 512. In part, we reasoned that, because the act uses the
language of "a" hypothetical reasonably effective attorney, a
moving party is not required to explain the tactical or
strategic reasoning of the party's trial counsel in not seeking
the requested analysis.8 See Wade II, supra at 511. See
Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 703 (2015). Thus,
regardless whether a moving party proceeds under the reasonably
effective attorney prong or any other prong of § 3 (b) (5),
whether his or her trial counsel made a strategic decision to
forgo such testing is not relevant to that inquiry.
7
We noted also that the statutory language in
§ 3 (b) (5) (iv) "contrasts with provisions in statutes in other
jurisdictions providing for postconviction DNA testing, which
explicitly incorporate the ineffective assistance of counsel
standard, or explicitly require that trial counsel not have made
a strategic or tactical decision in forgoing a request for DNA
testing." See Wade II, supra at 512 & n.21.
8
In contrast, we observe that the act refers specifically
to "the moving party's attorney" in several places. See, e.g.,
G. L. c. 278A, § 3 (b) (iii), (iv). Because the Legislature
knew how to reference the moving party's trial counsel when it
wanted to, its use of the phrase "a reasonably effective
attorney" was clearly included to distinguish a hypothetical
"reasonably effective attorney" from the moving party's trial
counsel. See Nguyen v. William Joiner Ctr. for the Study of War
& Social Consequences, 450 Mass. 291, 301 (2007).
17
This understanding is consistent with § 3 (d), which
permits testing even where a moving party has pleaded guilty or
made incriminating statements. See Wade II, supra at 514 (plain
language of G. L. c. 278A, § 3 [d], and purpose for which act
was enacted evinces Legislature's clear intent "to ensure that a
moving party will be able to meet the requirements of G. L.
c. 278A, § 3, notwithstanding any incriminating statements the
party may have made, a guilty plea, or a plea of nolo
contendere"). As we observed in Commonwealth v. Clark, 472
Mass. 120, 136 (2015), quoting Wade II, supra at 511, "[g]iven
its compelling interest in remedying wrongful convictions of
factually innocent persons, the Legislature intended to permit
access to DNA testing 'regardless of the presence of
overwhelming evidence of guilt in the underlying trial.'"
We conclude that Wade was not required to establish the
"primary reason" that the evidence was not tested.
d. Whether requested testing was available at time of
trial. The judge found that the DNA analysis requested by Wade
was not yet developed at the time of Wade's trial in 1997. We
do not agree with the Commonwealth's contention that this
finding is clearly erroneous. Wade's DNA expert testified that,
as of September, 1997, it was not possible to test all thirteen
18
loci of the CODIS STR panel.9 The expert acknowledged that an
early form of DNA analysis was available in 1997, but stated
that the "average power of discrimination" for the earlier tests
was "on the range of one in a few thousand." By contrast, the
DNA testing now available has the "discriminating power" of
"[m]any, many, many orders of magnitude" higher than the earlier
tests, which is in the "trillions, quadrillions, and so forth."10
The Commonwealth did not challenge these assertions on cross-
examination, and did not introduce other evidence to the
contrary.
The judge's finding that the DNA analysis Wade requested
was not developed at the time of his trial is thus sufficiently
supported by evidence in the record. The record demonstrates
that the requested analysis has the discriminating power of, at
a minimum, one in trillions, while the tests available at the
9
Wade requested the DNA analysis that was available at the
time of his evidentiary hearing in 2014, which included an
analysis of thirteen short tandem repeat (STR) loci. "A DNA
profile for an individual is that combination of alleles, or
versions of genes, possessed by the individual at the loci
tested." Commonwealth v. Gaynor, 443 Mass. 245, 248 n.1 (2005).
As Wade's expert explained during the evidentiary hearing, the
Federal Bureau of Investigation has "adopted the [thirteen] loci
of the Profiler Plus and Cofiler tests as the STR loci required
for participation in the national DNA database known as CODIS,
or Combined DNA Index System."
10
The DNA expert indicated that, in practice, the ability
of a particular test to discern contributors to a sample would
depend on many factors, including, for example, whether the
sample came from a single source, was a full profile, or was
part of mixture.
19
time of Wade's conviction had the discriminating power of one in
a few thousand. On these facts, we cannot say that the judge's
finding was clearly erroneous. Wade thus has satisfied
§ 3 (b) (5) (i), which, in turn, satisfies the requirements of
§ 7 (b) (3).
e. Attorney-client privilege and motion to strike. As
stated, Wade's postconviction counsel objected to questions
posed by the Commonwealth at the evidentiary hearing that sought
to pierce the attorney-client privilege, and his trial counsel
declined to answer the questions. The judge concluded that the
privilege had been waived, and ordered trial counsel to reveal
privileged communications; he also denied Wade's motion to
strike those answers. This was error.
The Commonwealth contends that the act of filing a motion
under the act necessarily waives a moving party's attorney-
client privilege, and that a moving party cannot assert the
privilege to prevent the Commonwealth from proving the "real
reason" testing was not conducted in a particular case.
Although a litigant implicitly may waive the attorney-client
privilege as to matters the litigant has placed at issue, see
Darius v. Boston, 433 Mass. 274, 277-278 (2001), such a waiver
is not applicable here, where Wade has not put "at issue"
privileged attorney-client communications regarding the reasons
that trial counsel did not seek DNA testing. See Mass. G. Evid.
20
§ 523(b)(2) (2016) (privilege waived where person holding
privilege "introduces privileged communications as an element of
a claim or defense").
Wade maintains that he is entitled to the requested
analysis because it was not available at the time of his
conviction, see § 3 (b) (5) (i); this inquiry is objective and
does not require any information protected by the attorney-
client privilege. See Clair v. Clair, 464 Mass. 205, 219
(2013), quoting Darius v. Boston, supra at 284 ("there can be no
'at issue' waiver unless it is shown that the privileged
information sought to be discovered is not available from any
other source"). Moreover, even where a moving party proceeds
with a claim under § 3 (b) (5) (iv), which requires
consideration of what "a reasonably effective attorney" would
have done, that inquiry also is objective, and therefore does
not require testimony or an affidavit from trial counsel. See
Wade II, supra at 511-512.
We conclude that Wade did not effect an "at issue" waiver
by filing his petition, and his motion to strike all privileged
communications disclosed by trial counsel should have been
allowed.
4. Conclusion. The orders denying the motion for
scientific testing and denying the motion to strike are
reversed. The matter is remanded to the Superior Court, where
21
an order shall enter that the requested scientific analysis be
conducted forthwith, and for further proceedings consistent with
this opinion.
So ordered.