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SJC-12596

              COMMONWEALTH   vs.   STEVEN M. PUTNAM.


                         April 9, 2019.


Evidence, Scientific test, Relevancy and materiality.   Practice,
     Criminal, Postconviction relief.


     In March 2006, after a jury trial, the defendant was found
guilty of home invasion, armed assault in a dwelling, rape, and
assault and battery; he was sentenced to from twenty to twenty-
five years in State prison. The defendant here appeals from the
denial of a motion filed pursuant to G. L. c. 278A (chapter
278A) seeking postconviction forensic and scientific testing of
evidence and biological material to support a motion for a new
trial. We decide this appeal on the basis of our opinion today
in Commonwealth v. Williams, 481 Mass.     (2019).1

     Facts and prior proceedings. The evidence presented at the
defendant's trial is summarized in Commonwealth v. Putnam, 75
Mass. App. Ct. 472, 473-476 (2009), the affirmance of the
defendant's convictions on direct appeal. We provide a
condensed version of events as the jury could have found them.

     On the evening of January 26, 2004, the defendant, with
whom the victim was acquainted, knocked at the victim's door,
seeking to speak with her. After initially turning the
defendant away, the victim allowed the defendant to enter her
home, and the two spoke for a short period of time. When the
victim attempted to make a telephone call, the defendant grabbed
the victim, punched her in the face, and threw the telephone to

    1  We acknowledge the amicus brief submitted by the New
England Innocence Project, the Boston College Innocence Program,
the Committee for Public Counsel Services, and Dennis Maher.
                                                                   2


the floor. After beating the victim, the defendant pulled a
knife out of his pocket and stated, "You can make this hard or
you can make this easy."

     The defendant tore off some of the victim's clothing and
digitally raped her. When the defendant paused to pull his
shirt off, the victim fled. Naked from the waist down, the
victim ran to a neighbor's house; the neighbor called the
police, who arrived at the scene within minutes.

     At trial, the defendant testified in his own defense that
the physical contact between him and the victim was consensual
and did not include penetration. As for the knife, the
defendant testified that he had tried to give it to the victim
because he was afraid that he would hurt himself.

     The defendant filed the instant chapter 278A motion pro se
in July 2016, and he supplemented it once he was appointed
counsel. In his motion, the defendant asserted his factual
innocence, claiming that he did not enter the victim's home with
the intent to commit a crime (and thus was not guilty of home
invasion); that he neither used force on nor caused injury to
the victim (and thus was not guilty of either armed assault or
assault and battery); and that he did not penetrate the victim
(and thus was not guilty of rape). Among other things, the
defendant further asserted, pursuant to G. L. c. 278A,
§ 3 (b) (4), that the requested forensic testing of clothing
collected from the victim, and the testing of the sexual assault
evidence collection kit, had the potential to result in evidence
material to the defendant's identification as the perpetrator.

     The Commonwealth opposed the defendant's motion, arguing
principally that the defendant's claim that no crime occurred
was categorically barred from chapter 278A relief because it did
not put identity at issue. In denying the defendant's motion,
the judge stated in part:

    "The defendant's motion and affidavits do not meet the
    requirements of [G. L. c. 278A, § 3 (b) (4),] in that the
    defendant has not met his burden to show whether any test
    results could be material to the question of identity of
    the perpetrator. Here the issue is not identity, but
    whether a crime occurred. Defendant is not entitled to
    relief."
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The defendant appealed, and we granted his application for
direct appellate review.2

     Discussion. The defendant argues that the motion judge
erred by interpreting G. L. c. 278A, § 3 (b) (4), to exclude
movants who claim that no crime occurred. In Williams, 481
Mass. at    , we concluded that "a defendant who asserts that
the requested testing has the potential to result in evidence
that is material to his or her identity as the perpetrator of
the crime because no crime in fact occurred satisfies the
§ 3 (b) (4) requirement." Thus, here we conclude that the
defendant's motion satisfies the threshold burden of
§ 3 (b) (4).3

     Nothing in our decision should be read as a comment on the
defendant's likelihood of success in obtaining the testing he
seeks. We note that at the hearing stage, he still must
demonstrate 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 the moving party's identification as the
perpetrator of the crime in the underlying case." G. L.

     2 Pursuant to G. L. c. 278A (chapter 278A), an individual
seeking postconviction forensic testing must present certain
information by way of motion. The Commonwealth may provide a
response, but need not do so at the motion stage, which is
considered "nonadversarial." G. L. c. 278A, § 3 (e). See
Commonwealth v. Wade, 467 Mass. 496, 503 (2014), S.C., 475 Mass.
54 (2016). If the motion is allowed, the Commonwealth at that
point must file a response, and the court will hold an
evidentiary hearing. G. L. c. 278A, §§ 4 (c), 6. Here, there
is no indication in the docket that the defendant's chapter 278A
motion was allowed before the Commonwealth was ordered to
respond. The Commonwealth did so citing G. L. c. 278A, § 4, the
provision requiring the Commonwealth's response once the initial
motion has been allowed. A G. L. c. 278A, § 6, hearing was
scheduled, but the hearing that took place was focused on
whether the defendant was eligible to seek chapter 278A testing
and was nonevidentiary in nature. For these reasons, and
because the motion judge who issued the ultimate denial cited
G. L. c. 278A, § 3 (b) (4), we review the matter at the motion
stage under § 3.

     3 The Commonwealth does not identify, nor do we discern, any
defect in the defendant's prima facie case for chapter 278A
relief under the other § 3 factors.
                                                                  4


c. 278A, § 7 (b) (4). More specifically, here the defendant
will need to demonstrate that the analysis has the potential to
result in evidence that is material to proving that no crime
occurred.

     Conclusion. The order denying the defendant's chapter 278A
motion is reversed, and this case is remanded to the Superior
Court for further proceedings consistent with this opinion and
our reasoning in Williams, supra.

                                   So ordered.


     Merritt Schnipper for the defendant.
     Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
     Lisa 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.
