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14-P-1660                                                 Appeals Court

                  COMMONWEALTH    vs.   MARIE E. LYONS.


                              No. 14-P-1660.

            Plymouth.       December 9, 2015. - June 6, 2016.

                 Present:    Green, Vuono, & Meade, JJ.


Deoxyribonucleic Acid. Practice, Criminal, Postconviction
     relief, Discovery. Evidence, Chain of custody, Scientific
     test, Relevancy and materiality.



     Indictment found and returned in the Superior Court
Department on November 5, 2001.

     A postconviction motion for access to untested evidence,
filed on September 10, 2012, was heard by Linda E. Giles, J.,
and a motion for reconsideration, filed on August 18, 2014, was
considered by her.


     Sara J. van Vliet (Nicholas J. Ramacher with her) for the
defendant.
     Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
                                                                    2


     VUONO, J.   The defendant, Marie E. Lyons, is serving a life

sentence for the murder in the second degree of Gerard Charron.1

She appeals from the denial of her postconviction motion,

brought pursuant to G. L. c. 278A, § 3 (§ 3 motion), in which

she sought access to biological evidence for the purpose of

conducting deoxyribonucleic acid (DNA) testing.    The key

evidence consists of two strands of hair, one found in each of

the victim's hands when his body was discovered.    The primary

issue raised is whether Lyons is entitled to discovery regarding

the current location and condition of the evidence and

documentation of the chain of custody of the hair.    For the

reasons that follow, we conclude that Lyons's request for

discovery should have been allowed and, therefore, we vacate the

order denying the § 3 motion and remand the matter to the

Superior Court for additional proceedings.

     Background.   1.   Facts.   The jury that convicted Lyons in

2004 could have found the following facts.    Lyons and Charron

had been dating for about four months before Charron was killed.

The couple were homeless and camping in a public park in

Brockton on September 12, 2001, when, shortly before 1:00 A.M.,

the police received four 911 calls.     One of the callers, who


     1
       We affirmed the conviction in an unpublished decision
pursuant to our rule 1:28, and the Supreme Judicial Court denied
further appellate review. See Commonwealth v. Lyons, 70 Mass.
App. Ct. 1109 (2007), S.C., 450 Mass. 1108 (2008).
                                                                     3


lived nearby, testified at trial that at the time he heard loud

voices coming from the park; the loudest voice, that of a woman,

said, "Oh, my God, what have I done."   An emergency medical

technician arrived at the scene shortly thereafter and found the

body of the victim on a blanket, completely covered except for

the top of his head.   The cause of death was sharp force and

blunt force head trauma inflicted by a sharp instrument.     Lyons

was alone at the scene, upset and crying, when the police

arrived a few minutes later.   She had blood on her hands,

clothing, and sneakers.   The Commonwealth's expert opined that

blood spatter on Lyons's clothing was created by cast-off blood

from a weapon used to stab Charron in the head.     No weapon was

recovered.

     When Charron's body was examined, a strand of hair was

retrieved from each of his hands.   Although the hair was

available for scientific and forensic analysis before trial,

neither the Commonwealth nor Lyons conducted any testing.      The

two strands of hair and a known hair sample from the victim's

head were introduced in evidence as exhibits 71-73 by defense

counsel at the conclusion of the defense's case.2    In his closing

argument, defense counsel attempted to persuade the jury that

DNA testing of the hair would have identified the murderer and

     2
       The evidence had been in the possession of the
Commonwealth and was introduced without objection to its chain
of custody.
                                                                   4


that the Commonwealth's failure to test the hair established

reasonable doubt.3

     2.   The § 3 motion.   Lyons's § 3 motion asserted her

factual innocence of the crime and that evidence of hair

belonging to a third party in the victim's hands would be strong

evidence of her innocence and would help identify the actual

perpetrator.   In her affidavit submitted in support of the

motion, Lyons claimed that she was unaware that the strands of

hair existed until the evidence was discussed in court during

her trial and that, if she had known about the hair, she would

have requested that DNA testing be conducted prior to trial.4

The affidavit also set forth Lyons's postconviction efforts to

obtain access to the evidence.   She specifically averred that

the "State [p]olice ha[ve] refused to provide any information

concerning the present location or condition of any of the

evidence concerning my case."

     An affidavit from one of the attorneys representing Lyons

in connection with her motion stated that Lyons's trial counsel

"reported that he had no information concerning the location or


     3
       The Commonwealth in turn argued to the jury that they
should infer the hair had come from the victim, referring to
testimony of an experienced detective that victims of head
attacks often grab at their own heads as they attempt to ward
off blows.
     4
       Lyons also claimed that trial counsel was ineffective for
failing to request DNA testing of the hair.
                                                                    5


condition of any physical evidence in this case, including the

hair evidence."   Motion counsel also averred that one of the

assistant district attorneys who tried the case (the ADA5) had

informed him that the Commonwealth also "was unaware of the

location or condition of the physical evidence in this case."6

The § 3 motion specifically requested discovery regarding the

current location of the evidence and documentation of the chain

of custody of the hair.   See G. L. c. 278A, § 3(c).

     The § 3 motion was reviewed by the trial judge, who

determined that Lyons had satisfied the statute's threshold

requirements, see G. L. c. 278A, § 3(e), but the judge did not

address Lyons's request for discovery.   As required by the

statute, the Commonwealth was given sixty days to respond to

Lyons's motion.   See G. L. c. 278A, § 4(b).   That response came

in the form of a motion to dismiss in which the Commonwealth

claimed that the "statute does not provide for the routine

testing or retesting for analysis of alleged biological

materials that were readily available to a defendant at [the]

time of trial."   The Commonwealth next argued that the evidence

against Lyons was strong and, because neither the prosecution


     5
       There were two assistant district attorneys who prosecuted
the case at trial, but only one of the two was involved with the
§ 3 motion. We refer to her as the ADA for convenience.
     6
       We note that the Commonwealth has contested this
allegation.
                                                                     6


nor trial counsel "ever suggested that the hair belonged to the

defendant," the results of DNA testing would have no probative

value.    The Commonwealth pointed out that trial counsel had made

a tactical decision not to test the hair and had argued

"vigorously" in closing that Lyons should be acquitted because

the Commonwealth failed to conduct DNA testing.    The

Commonwealth further asserted that the jury were able to

physically inspect the two strands of hair and the victim's hair

sample and would have known that Lyons had shoulder length

blonde hair and that the victim had short darker hair.     Thus,

the Commonwealth claimed that the jury could have concluded on

their own whether the hair in question belonged to a third

party.

     3.   The hearing.   The trial judge held a hearing on the § 3

motion on February 12, 2014.7   During the course of the hearing,


     7
       After a defendant has succeeded in meeting the minimum
threshold requirements of § 3, the defendant is entitled to an
evidentiary hearing. See G. L. c. 278A, § 6. To obtain the
requested forensic or scientific analysis, she must meet her
burden in establishing by a preponderance of evidence the
matters set out in G. L. c. 278A, § 7(b), inserted by St. 2012,
c. 38:

     "(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;
                                                                   7


at which Lyons was present, a dispute arose regarding the chain

of custody of the hair.   The dispute centered upon two things:

the current location of the evidence and the condition of the

exhibits.   It can be inferred from the record that, upon the

conclusion of the trial, all of the evidence, including exhibits

71-73, remained in the office of the Superior Court clerk for

Plymouth County for six years before being returned to the State




    "(3) that the evidence or biological material has not been
    subjected to the requested analysis for any of the reasons
    in [§ 3(b)(5)(i)-(v): i.e., (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];

    "(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

    "(6) that the results of the particular type of analysis
    being requested have been found to be admissible in courts
    of the commonwealth."
                                                                   8


police in 2010.   At the time of the hearing, the ADA

"presume[d]" that the evidence was in a storage room maintained

by the State police.8   However, prior to the hearing, no one

involved had actually seen any of the evidence since the trial,

including exhibits 71-73.    Motion counsel for Lyons9 had no

access to the evidence because the judge had not ruled upon

Lyons's motion for discovery, which included a request to view

the exhibits.    The ADA had not looked at the evidence because,

as the ADA stated, "I'm not going near it while it's under

litigation for obvious reasons."

     The second area of dispute concerned the condition of the

envelopes containing the strands of hair when they were sent to

the jury room.    According to the ADA, at trial the hairs were in

small manila envelopes that the jurors could open.    Thus, the

ADA argued, even if the evidence could be located, the chain of

custody had been broken by virtue of the fact that the hair was

available for inspection by the jury.    The judge pursued this


     8
       The ADA stated, "Then at [the] end of trial it's in
wher[e]ver the Court put it for about six years before the
[S]tate police go and pick it up and put it in the [S]tate
police storage room." Later in the hearing, the ADA added,
"According to the docket[,] in 2010[,] the Superior Court
returned [the exhibits] to the [S]tate police. So I presume
that they are in a box in an evidence locker. Presume. I'm not
warranting anything about the evidence."
     9
       There were two attorneys representing Lyons at the
hearing, but for convenience we treat them as one in our
discussion.
                                                                   9


point with Lyons's motion counsel and asked, "Even if we obtain

those envelopes[,] how can anybody be sure [w]hat the content[]

of those envelopes is right now?"   Counsel responded, "I would

have to know more about the envelopes and about the evidence,

which I can't do as we stand procedurally without access to

them."

    The judge returned to this issue later in the hearing,

noting that, at this point, the envelopes could contain the hair

of a juror.   Motion counsel acknowledged that could be true,

after which the following exchange ensued:

    The court: "Let's not forget or gloss over . . . that very
    important issue. How do I get around that[,] [motion
    counsel]? These envelopes were sent up to the jury in
    Brockton and I have a very, very vague recollection that
    they were in small manila envelopes and I don't think they
    were sealed."

    Motion counsel:    "They were sealed."

    The court:   "They were sealed?"

    Motion counsel:    "Yes."

    The ADA:   "No, they were not, your Honor."

    The court: "[H]ow do you know they weren't sealed -- they
    were sealed?"

    The ADA: "I remember specifically they weren't sealed
    because in looking at the evidence I remember one of the
    [S]tate police troopers going like this with [one of] the
    envelope[s] (indicating) when we were over in the DA's
    office. I just remember that. I don't remember what was
    inside, I just remember those envelopes and him going like
    this and just pinching it open. So it wasn't sealed if he
    pinched it open and was looking inside. But I do remember
    that."
                                                                   10



    The judge subsequently stated that she "certainly

accept[ed] [the ADA's] representation," to which motion counsel

responded that, "at the very least," Lyons was entitled to

discovery on the chain of custody and "entitled to some

discovery on exactly what was in [the envelopes] rather than

people's memories from 2004."

    Ultimately, given the uncertainty involving the chain of

custody of the hair evidence, the judge gave motion counsel

additional time to supplement the § 3 motion.    The judge said,

"It seems to me it would be incumbent on [Lyons] to say that

th[ose] envelope[s] [containing the strands of hair] eventually

w[ere] sealed when [they] went up to the jury room and came back

sealed."    She added, "[T]ake as much time as you need . . . .

Either you're going to tell me I have no further supplementation

or here is my supplementation."   By letter dated April 25, 2014,

motion counsel declined the opportunity to supplement the

presentation.   The letter stated, "At this time, Ms. Lyons has

determined that she will not supplement her motion . . . and she

rests on her motion and briefs as filed. . . .   Ms. Lyons notes

that she does not accept [the ADA's] representation at oral

argument that the envelopes containing the hairs 'weren't

sealed.'"   Lyons later filed a more detailed motion for
                                                                  11


discovery, citing G. L. c. 278A, §§ 3(c) & 7(c);10 however, as

far as we can discern from the record, no action has been taken

on the motion.


     10
       General Laws c. 278A, § 3(c), inserted by St. 2012,
c. 38, provides:

     "If the moving party is unable to include for filing with
     the motion any of the items or information described in
     [§ 3(b)], or if the moving party lacks items or information
     necessary to establish any of the factors listed in
     [§ 7(b)], the moving party shall include a description of
     efforts made to obtain such items and information and may
     move for discovery of such items or information from the
     prosecuting attorney or any third party."

     General Laws c. 278A, § 7(c), inserted by St. 2012, c. 38,
provides:

     "The court on motion of any party, after notice to the
     opposing party and any third party from whom discovery is
     sought, and an opportunity to be heard, may authorize such
     discovery as provided for under [Mass.R.Crim.P. 30(c)(4),
     as appearing in 435 Mass. 1501 (2001)], from either party
     or any third party as is deemed appropriate, subject to
     appropriate protective orders or an order to the party
     seeking discovery to produce reciprocal discovery.

     "Such discovery may include items and biological materials
     from third parties, provided the party seeking discovery
     demonstrates that analysis of these items or biological
     material will, by a preponderance of the evidence, provide
     evidence material to the identification of a perpetrator of
     the crime.

     "If, in response to a motion made under [§ 3(c)], the court
     finds good cause for the moving party's inability to obtain
     items or information required under [§ 3(b)] and [§ 7(b)],
     the court may order discovery to assist the moving party in
     identifying the location and condition of evidence or
     biological material that was obtained in relation to the
     underlying case, regardless of whether it was introduced at
     trial or would be admissible. The court, when considering
     such discovery requests, shall not require the
                                                                   12


     4.   The judge's memorandum of decision.   The judge issued

written findings of fact and conclusions of law in which she

concluded that Lyons had not met her burden of showing an

adequate chain of custody under G. L. c. 278A, § 7(b)(2), and

had failed to establish that DNA testing had the potential to

result in evidence that would be material to Lyons's identity as

the murderer under § 7(b)(4).   (See note 7, supra.)

Consequently, the judge denied the § 3 motion.11

     With respect to the defense burden under § 7(b)(2), the

judge determined that Lyons failed to show an adequate chain of

custody to establish the integrity of the hair exhibits.    The

judge wrote,

     "Although I have no independent recollection of this
     matter, I credit [the ADA's] representation that the hair
     samples were admitted at trial by [defense counsel] as
     exhibits in unsealed envelopes, without any consideration
     for the possibility that this forensic evidence would be
     handled, contaminated, replaced, or lost by the jurors
     during deliberations. Moreover, the defendant chose not to
     take the court up on its offer to present further evidence
     to rebut [the ADA's] assertion. Thus, the chain of custody
     of this putative biological material clearly was broken at
     the door of the jury deliberation room, if not earlier
     . . . while in the care and custody of unknown parties."

     Regarding the defense showing under § 7(b)(4), the judge

concluded that Lyons failed to show that the requested analysis


     establishment of a prima facie case for relief under
     [Mass.R.Crim.P. 30]."
     11
       Lyons filed a motion to reconsider (or in the alternative
a renewed § 3 motion), which the judge also denied. Before us
is the consolidated appeal from the denials of both motions.
                                                                  13


"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."   The judge's reasoning was as follows:

    "In the case at bar, determining the source of the hair
    would not have proved that the source was the victim's
    assailant. The defendant admitted to the police that she
    was alone with the victim in the park. Besides, there was
    no evidence that the victim engaged in a fight or struggle
    with his murderer so as to result in the assailant's hairs
    being clutched by the victim. What is more, given the
    unwashed condition of the blanket or bedding on which the
    defendant and victim slept in an open park, the hairs in
    the victim's hands could have originated at any time and
    from any number of sources, including from a dog. In
    addition, it was [the Commonwealth's expert's] opinion that
    the hairs probably came from the victim's own head as a
    result of his defensive or reflexive moves. In the
    alternative, the jurors, who had the opportunity to examine
    the hairs, could have determined that they matched the
    long, blonde hair of the defendant. In either case, the
    defendant's claim that the hairs came from some unknown
    human being amounts to pure speculation."

The judge did not explicitly address the defense burden under

the remaining subsections of § 7(b).

    Discussion.    1.   Condition of evidence and chain of

custody.   The statute governing a postconviction motion to

conduct forensic or scientific analysis of biological material

contemplates the possible need for discovery before such a

motion properly can be decided.    Under G. L. c. 278A, § 7(c),

the court on motion and after notice and hearing "may authorize

such discovery as provided for under [Mass.R.Crim.P. 30(c)(4),

as appearing in 435 Mass. 1501 (2001)]"; § 7(c) further provides

that "[i]f, in response to a motion made under [§ 3(c)], the
                                                                  14


court finds good cause for the moving party's inability to

obtain items or information required under [§ 3(b)] and

[§ 7(b)], the court may order discovery to assist the moving

party in identifying the location and condition of evidence or

biological material that was obtained in relation to the

underlying case . . . ."

     Lyons contends that the judge should have granted her

request for discovery and that the failure to do so prevented

her from establishing an adequate chain of custody as required

by § 7(b)(2).   She also challenges the judge's reliance on the

ADA's representation at the hearing that the envelopes

containing the exhibits went to the jury unsealed, claiming that

unsworn statements of a prosecutor cannot substitute for

evidence.   We agree with both assertions.

     First, it appears that exhibits 71-73 are in the custody of

the State police and, if so, they should be available for

inspection.   Indeed, we discern no valid reason to preclude

Lyons from viewing the exhibits in order to determine the

condition of the envelopes and ascertain whether any or all of

them still contain the strands of hair retrieved from the

victim.12   In the language of the statute, we conclude that in

the unique circumstances of this case there was "good cause"

     12
       We are confident that the parties will make mutually
acceptable arrangements to conduct a physical inspection of the
evidence.
                                                                   15


under § 7(c) for Lyons's present inability to establish the

condition of the biological evidence and that it has been

subject to a sufficient chain of custody.    We also conclude that

the judge should have ordered suitable discovery to advance the

resolution of these questions.

     Clearly, the issue whether a physical inspection will

provide evidence helpful to Lyons in meeting her burden remains

an open question.13    It may turn out, as the judge concluded

(prematurely in our view), that the envelopes are unsealed,14

lending support to the Commonwealth's position that the chain of

custody was broken once the exhibits were sent to the jury

deliberation room.    On the other hand, the condition of the

envelopes, if currently sealed, may provide support to a

contrary conclusion.    And while the current sealed or unsealed

condition of the envelopes is an important first inquiry, in our

view neither fact by itself need automatically dispose of the




     13
       We repeat here what the statute ultimately requires: a
defendant must demonstrate, by a preponderance of the evidence,
that the "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" (emphases supplied). We observe that
we are not called upon in this appeal to render a comprehensive
interpretation of this language.
     14
          Indeed, the envelopes may even be empty.
                                                                 16


chain of custody question before the trial court;15 it is thus

possible that the physical inspection may give rise to a need

for additional appropriate discovery.16   In any event, the

question whether Lyons can meet her burden cannot be resolved

without additional discovery, beginning with a physical

inspection of the exhibits.17

     We are also persuaded that the judge's reliance on the

ADA's memory of the condition of the envelopes was misplaced.

In so concluding, we do not mean to suggest that the ADA is not


     15
       For example, in common experience an unsealed but closed
envelope with an adhesive flap can become sealed due to such
factors as the passage of time, the quality of the adhesive, and
the conditions of storage (including compression, temperature,
and moisture levels). Conversely, an envelope sealed with an
adhesive flap can become unsealed over time depending on similar
factors. (Here, a dozen years have passed since the trial.)
Part of the difficulty in the instant case is the lack of
information about the exact nature of the exhibit envelopes and
their storage history -- matters as to which a physical
examination is likely to shed some light.
     16
       For example, the defense conceivably might seek other
testimony, such as from trial counsel or court officers
regarding the appearance or handling of the exhibits during the
trial; or from clerk's office or State police personnel about
the appearance or handling of the exhibits thereafter. It is
also not beyond possibility that expert evidence might be sought
regarding the properties or behavior over time of any adhesive
on the exhibit envelopes. We do not, however, opine in advance
whether any of these forms of discovery must be permitted.
     17
       We acknowledge that during the hearing, when asked by the
judge to specify what discovery he would seek, defense counsel
equivocated: "I don't know at the moment. I would have to -- I
would have to come with a motion." Such a motion was eventually
filed, but only after the judge had first denied the § 3 motion.
See text accompanying note 10, supra.
                                                                      17


credible or that a judge could not rely on statements made by an

attorney as an officer of the court in some circumstances.       We

are saying only that those circumstances do not exist in this

case.   Here, rather than relying on the ADA's memory, there is a

readily available method to determine by direct physical

inspection the very important -- though, as we have indicated,

perhaps not determinative -- threshold fact whether the

envelopes are currently sealed or unsealed.

     2.   Potential for materiality.   Lyons next argues that she

satisfied her burden under § 7(b)(4) because the requested DNA

testing of the hair has the potential to identify the murderer.

She contends that the judge construed the statute too narrowly

when she concluded that her motion should be denied because the

"claim that the [strands of] hair[] came from some unknown human

being amounts to pure speculation."    Lyons is correct.   At the

time the judge ruled on Lyons's motion, she did not have the

benefit of the Supreme Judicial Court decision in Commonwealth

v. Clark, 472 Mass. 120 (2015), or our decision in Commonwealth

v. Coutu, 88 Mass. App. Ct. 686 (2015).    In Clark, the court

clarified that "[t]he Legislature's use of the word 'potential'

in § 7(b)(4) suggests an awareness of the fact that the

requested forensic analysis may not produce the desired

evidence, but such a consequence should not be an impediment to

analysis in the first instance."   Commonwealth v. Clark, supra
                                                                   18


at 135-136.   In other words, it matters not whether Lyons can

demonstrate that DNA testing will identify the perpetrator; the

critical inquiry is whether such testing has the "potential" to

result in material identification evidence.   This "potential" is

not diminished by the defense strategy pursued at trial or by

the fact, as the Commonwealth emphasizes, that there was never a

claim at trial that the hair belonged to Lyons.   The point is

"[e]ven if it is 'highly unlikely' that DNA testing will yield

any probative results," Commonwealth v. Coutu, supra at 702,

Lyons has met her burden under § 7(b)(4).

    Conclusion.    As we have discussed, we conclude that Lyons

was entitled to discovery regarding the condition and chain of

custody of the evidence and that the judge erred when she found

that Lyons had not met her burden under § 7(b)(4).   We therefore

vacate the order denying the § 3 motion and remand the matter to

the Superior Court for additional proceedings consistent with

this opinion.   These shall include an order permitting physical

inspection of trial exhibits 71-73; such additional discovery as

deemed warranted by the judge; a determination whether Lyons has

demonstrated, by a preponderance of the evidence, the

requirements of G. L. c. 278A, § 7(b)(1) & (2); and, if so, a

determination whether Lyons has also met the requirements of

§ 7(b)(3), (5), & (6).

                                    So ordered.
