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08-P-986                                              Appeals Court
13-P-1363

                  COMMONWEALTH   vs.   DAVID COUTU.


                    Nos. 08-P-986 & 13-P-1363.

     Middlesex.      September 17, 2015. - December 8, 2015.

            Present:   Katzmann, Meade, & Rubin, JJ.


Assault and Battery by Means of a Dangerous Weapon. Burning of
     Property. Attempt. Evidence, Identification, Scientific
     test. Practice, Criminal, Failure to object,
     Identification of defendant in courtroom, Argument by
     prosecutor, Instructions to jury, New trial, Assistance of
     counsel, Collateral estoppel, Postconviction relief.
     Collateral Estoppel. Deoxyribonucleic Acid.



     Indictments found and returned in the Superior Court
Department on March 23 and August 15, 2006.

     The cases were tried before S. Jane Haggerty, J., and
motions for a new trial, for postconviction discovery, and for
reconsideration, filed on April 26, 2012, June 7, 2012, and June
23, 2014, respectively, were heard by her.


     Amy M. Belger for the defendant.
     Randall F. Maas & Bethany Stevens, Assistant District
Attorneys, for the Commonwealth.
                                                                   2


    MEADE, J.   After a jury trial in 2007, the defendant was

convicted of aggravated rape, home invasion, mayhem, assault and

battery by means of a dangerous weapon causing serious bodily

injury, armed robbery, kidnapping, and attempt to burn personal

property.   The events leading to these convictions occurred in

2006, when the defendant, a stranger to the victim, broke into

her apartment by tunneling through the wall with a crowbar, and

then beat and raped the victim with the crowbar before burning a

box of items.

    On appeal, the defendant claims the judge improperly

permitted the victim to testify that she recognized the

defendant by his "energy," the prosecutor's closing argument was

improper, the judge erred in her jury instruction on

identification, the evidence was insufficient to support the

attempt to burn personal property conviction, the convictions of

assault and battery by means of a dangerous weapon causing

serious bodily injury and mayhem were duplicative, and the judge

abused her discretion by denying the defendant's second motion

for new trial based on a claim of ineffective assistance and

newly discovered evidence.   We reverse the convictions of

assault and battery by means of a dangerous weapon causing

serious bodily injury and of attempt to burn personal property,

affirm the remaining judgments of conviction, and remand the
                                                                          3


case for resentencing.          We affirm the order denying the second

motion for new trial.

       In a separate appeal, the Commonwealth claims error in the

judge's order permitting postconviction DNA testing under G. L.

c. 278A.     The Commonwealth claims that the judge misapplied the

statute and failed to consider the strength of the

Commonwealth's case, and that the defendant did not meet all the

statutory criteria.       We affirm the judge's order.

       1.   Background.    a.     Emergency response.   In the early

morning hours of March 9, 2006, Ayer police and fire personnel

responded to the victim's apartment.         The apartment was full of

smoke, which emanated from an object smoldering in the bathtub

that the fire fighters extinguished.         The fire fighters found

the victim wrapped in a blanket and curled in the fetal position

on the floor near the bathroom.          She had a head laceration that

was bleeding profusely, bruises on her face, and a stab wound

below her left eye.       There was a large amount of blood on the

bed.    The victim was conscious, but in shock and crying.        She

told those present that "[a] man came through the wall and raped

me."    The victim was taken to the Nashoba Valley Medical Center

and later airlifted to Beth Israel Deaconess Medical Center

(BIDMC) in Boston.

       b.   The attack.    The victim lived alone in the apartment.

She worked as a "spirit medium" and assisted living people with
                                                                       4


connection "to deceased loved ones."    She also offered

"spiritual counseling" and provided advice to those with

problems.   Her advice at times involved "divine guidance," which

meant advice from "God's angels, spirit guides, [and] masters

like Jesus and Buddha."

    During the early morning hours on the day of the attack,

the victim awoke to noises "coming through the wall."      When the

noises got closer, she got up and saw a man, later identified as

the defendant, kneeling and opening drawers in a chest.      The

victim screamed and was "frozen in fear."     She retrieved a

crowbar she found on the floor, which she described as a

"yellowy metal rusty thing," and attempted to defend herself.

The defendant grabbed her hair, but the victim was unable to

bring herself to hit him with the crowbar and instead pushed it

under a nearby chest of drawers.   The defendant threatened to

hit her if she looked at him, and he asked the victim for money.

As he continued to hold her hair, the victim crawled to her

wallet and gave him forty-four dollars in cash.     The defendant

kept asking the victim if she had a boy friend; she did not

respond.

    Holding both of the victim's wrists with one hand, the

defendant told her to take off her clothes.    She said, "No, just

let me go."   She "was so frozen in fear, [she] didn't know what

to do."    The defendant took off his clothes and hers.    He forced
                                                                      5


her to "suck on his penis" and he threatened to hit her if she

looked at him.   He "sucked . . . on [her] vagina" and told her

she was "beautiful."   The defendant tied her legs to the

bedposts with shredded pieces of her clothing and vaginally

raped her with his penis.    When the victim struggled to free

herself, the defendant got off her and began to get dressed.       He

then covered her mouth and nose with his hand, which prevented

her from breathing.    She attempted to "peel his fingers off,"

but soon lost consciousness.    The last thing she remembered was

seeing the defendant raise the yellow crowbar over her and

striking her on her head (more than once) and she "was

completely out."    The defendant beat and raped the victim with

the crowbar.

    When the victim regained consciousness, she saw a pool of

blood next to her and she smelled smoke.   The smoke was coming

from a box the defendant had stuck in a hole in the wall.    She

dragged the flaming box into the bathtub and retrieved a fire

extinguisher from the kitchen.    After reading the instructions,

she was able to use it to extinguish the fire.    At some point,

the victim's landlady came to the door and had her son telephone

for an ambulance.

    c.   The victim's injuries.    The extent of the victim's

injuries were as extreme as they were extraordinary.     The wounds

to her head and face were so severe that she required plastic
                                                                   6


surgery.   Her perineum, i.e., her vagina and rectal areas, were

"completely macerated"; the usually thick band of tissue between

the vaginal canal and rectum was completely torn away.    Her

"normal anatomy could not be identified."     Dr. Christopher

Awetry, the victim's treating obstetrics and gynecological

physician at BIDMC, opined that the victim's injuries were not

caused by a knife, but instead by "an object that had tearing

capabilities, but also with a blunt side."     With a reasonable

degree of medical certainty, Dr. Awetry opined that the victim's

injuries were consistent with having been inflicted by a

crowbar.

    Part of the victim's treatment as a sexual assault victim

was the administration of an AIDS preventative medication.

However, the victim was allergic to the medication and developed

a dermatological manifestation referred to as Stevens Johnson

syndrome, which resulted in a chemical burn with swelling and

blistering over ninety-eight percent of her body.    These

additional injuries were extremely painful and required her

admission to the burn unit at Brigham and Women's Hospital.

    d.     The hole in the wall.   The defendant gained entry to

her apartment (no. 6) through a hole in the wall from a vacant,

adjacent apartment (no. 7).    The former tenants of apartment no.

7 had moved out, but some furniture remained in the apartment.

The hole had been opened in the drywall between two studs.      Paul
                                                                       7


Zambella, a forensic scientist at the Massachusetts State police

crime laboratory, measured the hole and found it to be

approximately twelve and one-half inches wide by approximately

twenty-one inches in length.

    Daniel Freedman, the landlady's son and the building's

maintenance man, was able to fit himself through the hole

between the two apartments.    Freedman was approximately five

feet, eight inches tall and weighed 185 pounds.    Detective Brian

Gill, the lead investigator, made a cardboard replica of the

hole with dimensions of twelve by eighteen inches based on his

measurements.   Gill, who was five feet, eight inches tall and

weighed 230 pounds, was able to fit through the replica of the

hole.   In April of 2006, the defendant was six feet tall and

weighed 190 pounds.    By the time of trial in the summer of 2007,

the defendant appeared to have gained weight.

    e.    Identifying the defendant as the assailant.      Eleanor

Lamb, the defendant's sister, lived across the street from the

defendant on West Street in Ayer in March of 2006.   On the night

of March 8, 2006, some hours before the victim's attack in the

early morning of March 9, Lamb was drinking and socializing in

her apartment with Nicole Minkle, James Daniels, and Christopher

Hird.    The defendant was present and drinking as well.     He left

at approximately 10:30 P.M., but returned thirty minutes later.

When he returned, he told them the he had discovered a vacant
                                                                     8


apartment with furniture left behind.    The defendant asked if

anyone wanted any of the furniture; all declined, except Lamb.

    At approximately midnight, the defendant and Lamb left her

apartment and walked for about two minutes before reaching the

apartment building.    They entered with a key the defendant found

after he broke into the apartment through a window earlier in

the evening.   Lamb took a big role of bubble wrap, the defendant

took a trash bag full of various items, and they both returned

to Lamb's apartment.

    Upon their return, the defendant asked to borrow Lamb's

blue flashlight and a yellow crowbar that had previously

belonged to Lamb's former boy friend.    Hird also saw the

defendant holding the yellow crowbar.    On his way out the door,

the defendant stopped and poked his head back in and said,

"Don't worry, it's not like I'm going to hurt -- or kill

anybody."   He was dressed in blue jeans, a flannel shirt, and a

dark-colored jacket.   Lamb never saw the crowbar again after

lending it to the defendant, but she did find the flashlight in

her mailbox the next day.

    The next morning, Lamb saw on the television news the

apartment building she and the defendant had been in the

previous evening.   That evening, Lamb reported to the police

that the defendant had been in the building with her the night
                                                                     9


before the attack.1   She showed the police the route they took to

the building and the door they entered.

     After obtaining a search warrant for the defendant's

apartment, the police found a yellow crowbar under his bed.

After obtaining a second search warrant for the basement area of

the defendant's apartment building, the police found a dark-

colored jacket with chalky residue on it.    They also found a

pair of blue jeans with white fragments and pieces of "wallboard

or plaster" in the left rear pocket.    That same day, the police

also recovered, from the area of the hole between apartments no.

6 and no. 7, a piece of wallboard debris with yellow-colored

material on its surface.

     f.   Forensic evidence.   Both the yellow crowbar and the

blue jeans had human blood on them.    The blood on the blue jeans

had a deoxyribonucleic acid (DNA) profile of at least two

individuals.    The major female profile matched the victim, and

the defendant was included as a potential contributor of the

minor profile based on a probability of one in 41,000 for a

randomly selected unrelated individual in the Caucasian

population.    The yellow crowbar, which the police seized from

under the defendant's bed, also had a DNA mixture of at least


     1
       Lamb admitted that she initially lied to the police about
being in the building herself, but then admitted accompanying
the defendant inside.
                                                                     10


two individuals; the defendant was excluded as a contributor,

but the victim matched the major female profile.

    A forensic review of the evidence revealed that the "two

types of yellow paint found on the wallboard [between apartments

no. 6 and no. 7] were consistent in color, microscopic

appearance in spectrophotometric properties with the two shades

of yellow paint on the [crowbar]."     Also, the wallboard between

the apartments was consistent in "color, microscopic appearance,

and instrumental properties" with the pieces of wallboard found

in the back pocket of the blue jeans found the basement of the

defendant's apartment building.

    g.    The photographic array.    At the burn unit within

Brigham and Women's Hospital, Detective Gill showed the victim a

photographic array.   The victim appeared frail, was shaking, and

cried throughout the interview.     When the detective showed her

an array that contained the defendant's photograph, she excluded

the defendant's photograph as her assailant.     When she viewed

the photograph a second time, she said, "Definitely not this

one."   At trial, the victim explained that she was very

disoriented from the medications she was on at the time she was

shown the photographs and, as a result, could not "pinpoint"

anyone.

    The victim described her attacker to the police as

Caucasian with blonde or brown hair.     He was wearing pants, but
                                                                      11


not blue jeans.   She said he was between five feet, six inches

and five feet, nine inches in height, but probably five feet,

eight inches or five feet, nine inches.     She added that he had a

receding hairline, a medium to small build but with a fat frame,

and "no jaw line, no chin."     The victim characterized him as a

"coward from all angles" with a "cocky attitude."

     2.   Discussion.   a.   Extrasensory recognition.   The

defendant claims that the judge improperly permitted the victim

to make an in-court identification of the defendant.     More

specifically, the prosecutor asked the victim if she recognized

her attacker in the court room.     The victim testified that she

might recognize him if he were to stand.    With defense counsel's

express permission, the judge ordered the defendant to stand.

The judge permitted the victim to leave the witness stand and to

walk closer to the defendant.     As she faced him, she said,

"Yes."    When the victim returned to the witness stand, the

prosecutor asked her what she meant when she said, "Yes."       She

replied, "That is the person.     I can recognize his energy

because of my trade of work."     Despite the defendant's repeated

claim on appeal that he objected to this testimony,2 he made no

objection and no motion to strike.


     2
       On three occasions in the defendant's brief, appellate
counsel states that this testimony was admitted over objection.
These statements are directly contradicted by the transcript.
Misrepresentation is neither advocacy nor ethical. See
                                                                    12


    The defendant also claims that the matter was preserved

based on statements counsel made to the judge during the charge

conference regarding an identification instruction.     During this

discussion, counsel maintained that recognition by energy is not

an identification.     He did not belatedly object to the admission

of the victim's testimony.    Even if he had objected, it would

have been untimely.    We have a contemporaneous objection rule,

not a retroactive objection rule.     "'Order in the administration

of criminal justice requires that if a defendant is aggrieved by

what transpires during his trial,' he must assert a timely

objection or claim of error."     Commonwealth v. Pisa, 384 Mass.

362, 366 (1981), quoting from Commonwealth v. Stout, 356 Mass.

237, 243 (1969).     See Mass.R.Crim.P. 22, 378 Mass. 892 (1979).

Because the defendant's claim was not preserved, we review to

determine whether an error occurred and, if so, whether that

error created a substantial risk of a miscarriage of justice.

See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

     To determine whether the evidence of the victim's

recognition of the defendant by his "energy" created a

substantial risk of a miscarriage of justice, and keeping in



Mass.R.Prof.C. 3.3(a)(1), 426 Mass. 1383 (1998) ("A lawyer shall
not knowingly . . . make a false statement of material fact or
law to a tribunal"). After the Commonwealth's brief brought
these misrepresentations to our attention, appellate counsel
corrected her misstatements in her reply brief.
                                                                    13


mind that "[e]rrors of this magnitude are extraordinary events

and relief is seldom granted," Commonwealth v. Randolph, 438

Mass. 290, 297 (2002), we ask four questions:    "(1) Was there

error?   (2) Was the defendant prejudiced by the error?   (3)

Considering the error in the context of the entire trial, would

it be reasonable to conclude that the error materially

influenced the verdict?   (4) May we infer from the record that

counsel's failure to object or raise a claim of error at an

earlier date was not a reasonable tactical decision?"

(Citations omitted.)   Id. at 298.   "Only if the answer to all

four questions is 'yes,' may we grant relief."    Ibid.   See

Commonwealth v. Russell, 439 Mass. 340, 345 (2003).

    The defendant claims that in light of Commonwealth v.

Crayton, 470 Mass. 228 (2014), and Commonwealth v. Collins, 470

Mass. 255 (2014), the victim's energy recognition testimony

requires his conviction be reversed.   We disagree.   In these

cases, the Supreme Judicial Court held that "[w]here an

eyewitness has not participated before trial in an

identification procedure, we shall treat the in-court

identification as an in-court showup, and shall admit it in

evidence only where there is 'good reason' for its admission."

Commonwealth v. Crayton, supra at 241.    The same rule applies

where the eyewitness has not made an unequivocal positive

identification of the defendant before trial.    See Commonwealth
                                                                    14


v. Collins, supra at 265.    However, even assuming the victim is

an "eyewitness," the defendant fails to note that when the

Supreme Judicial Court announced the above rules, it made them

applicable only to trials that commenced after the issuance of

those opinions, which occurred in December of 2014.    The

defendant was tried in 2007.

     The defendant also claims the energy recognition evidence

should have been excluded under Daubert v. Merrill Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Commonwealth v.

Lanigan, 419 Mass. 15 (1994).    If those principles applied in

the circumstances of this case,3 the defendant's argument might

have had some force had he moved to exclude the evidence on

these grounds, but he did not.    Because this claim is being

raised for the first time on appeal, it is waived.    Newell v.

Department of Mental Retardation, 446 Mass. 286, 298 n.27

(2006); Driscoll v. Providence Mut. Fire Ins. Co., 69 Mass. App.

Ct. 341, 342 n.3 (2007).    See Commonwealth v. Crouse, 447 Mass.

558, 570 n.11 (2006) ("To the extent that the defendant's claim

rests on the judge's failure to assume the role of gatekeeper to

preclude the introduction of 'junk science' evidence, it is too

late for the defendant to request a Lanigan hearing").

     3
       The Daubert/Lanigan standard is a mechanism designed to
test the admissibility of scientific expert opinion, not
testimony of a lay witness like the victim. See Commonwealth v.
Lanigan, supra at 25.
                                                                   15


     Although we reject the above claims, the gravamen of the

defendant's argument is that it was error to permit the victim,

by employment of her "sixth sense" or through extra sensory

perception (ESP), to recognize the defendant as her attacker.

We agree.   "In general, a witness bases any identification [she]

makes on [her] perception through the use of [her] senses.

Usually the witness identifies an offender by the sense of sight

-- but this is not necessarily so, and [she] may use other

senses."    Commonwealth v. Franklin, 465 Mass. 895, 910 n.24

(2013) (quotation omitted).    However, when our case law speaks

of "other senses," it was meant to limit those available for

identification to the five found in the natural world.   Indeed,

by definition, ESP or a "sixth sense," is beyond the corporeal

or numerical senses of convention.    The evidence of the victim's

supernatural recognition of the defendant as her attacker should

not have been permitted.4

     Although we conclude there was error, when we consider the

error in the context of the entire trial, it would not be

     4
       At oral argument, appellate counsel likened the victim's
energy recognition testimony to spectral evidence, which was
used to convict the defendants at the Salem witch trials. We
disagree. "Spectral evidence" refers to witness testimony that
the accused person's spirit or spectral shape appeared to the
witness. See Hoffer, The Salem Witchcraft Trials, A Legal
History 78-79 (1997); Starkey, The Devil in Massachusetts 54, 93
(1949). Here, while the victim's energy recognition testimony
was improper, it was not generated from an apparitional
appearance she had of the defendant.
                                                                     16


reasonable to conclude that the error materially influenced the

verdict.   See Commonwealth v. Randolph, 438 Mass. at 299-300.

While the victim did not make a photographic identification, and

discounted the actual photographs of the defendant, the

Commonwealth offered compelling evidence that identified the

defendant as the victim's assailant and rapist.

    At trial, the Commonwealth's key witness was the

defendant's sister, Eleanor Lamb, who was with the defendant on

the night of the attack.    Lamb joined the defendant and stole

items from the vacant apartment (no.7) adjacent to the victim's

apartment (no. 6).    Lamb was the owner of the yellow crowbar

that the defendant borrowed on the night of attack.    Lamb later

told the police of the events of the night.     Two other

witnesses, Christopher Hird and Nicole Minkle, corroborated

Lamb's claim that the defendant told the group that he had found

the vacant apartment with furniture in it.    Hird also saw the

yellow crowbar in the defendant's hand at Lamb's apartment.

    The forensic evidence against the defendant was even more

compelling.   Police found a yellow crowbar matching the

description given by Lamb and Hird under the defendant's bed.

Forensic testing of the yellow crowbar revealed the presence of

the victim's DNA.     The paint on the crowbar was consistent with

yellow marks left on the wallboard surrounding the hole between

the two apartments.    There was also evidence that two different
                                                                    17


men (Daniel Freedman and Detective Brian Gill) of builds similar

to that of the defendant were able to fit through the hole (or a

replica of it) between the apartments.

    Also, Lamb testified that on the night of the attack, the

defendant was dressed in blue jeans, a flannel shirt, and a

dark-colored jacket.   In the defendant's basement, the police

found blue jeans with wallboard fragments in one of the pockets.

The blue jeans also had human blood on them.    A forensic

analysis of the blood stain showed that the blood contained a

mixture of at least two individuals.     The victim's DNA profile

matched the major female contributor, and the defendant was

included as a potential contributor of the minor profile.

    Although the judge's decision on the Commonwealth's motion

to reconsider the order on the defendant's second motion for new

trial characterizes the victim's method of recognizing the

defendant as "extremely powerful," she also determined that the

other evidence against the defendant, cataloged above, "was very

powerful, if not overwhelming."   Moreover, during the trial, the

judge indicated that the jury might completely disregard the

victim's "energy" testimony or simply reject it as ridiculous.

In any event, our determination whether the error materially
                                                                   18


influenced the verdict is not contingent upon how the judge

viewed the evidence.5

     Finally, for the same reason that the judge concluded the

jury may view the energy evidence as ridiculous, we can infer

that counsel's not objecting to its admission was a tactical

decision that was not manifestly unreasonable.6   Indeed, during

counsel's cross-examination of the victim, he established that

even though the victim could recognize the defendant's energy

"imprint," she failed to recognize his photographs and said they

were not her assailant.   Counsel could easily have concluded

that the energy testimony seriously detracted from the victim's

credibility, and he chose to leave it unchallenged and instead

focused on her inability to make a photographic identification.

Because we do not answer all four of the Randolph inquires in

the affirmative, the defendant has failed to establish that the

error created a substantial risk that justice miscarried.   See

Commonwealth v. Randolph, 438 Mass. at 298.   See also

Commonwealth v. Dresser, 71 Mass. App. Ct. 454, 458 n.10 (2008)

     5
       For this same reason, there was no over-all effect to the
judge's mistaken finding that the defendant was the only tenant
who had access to the area where the blue jeans were found.
     6
       The defendant admits this in his reply brief, where he
states that "[n]ot highlighting such an off-the-wall part of the
trial testimony by objecting to it when it occurred was not a
manifestly unreasonable strategy at that moment." Indeed, no
claim is made by the defendant here that counsel's failure to
object amounted to ineffective assistance of counsel.
                                                                  19


(defendant's burden to establish existence of substantial risk

of miscarriage of justice).

    b.     The prosecutor's closing argument.   The defendant

claims for the first time on appeal that the prosecutor vouched

for the victim's energy identification in her closing argument.

The challenged portion of the prosecutor's argument is as

follows:

         "She certainly did say she wanted to study that face.
    No doubt she wanted to. No doubt she wishes that she could
    tell you exactly what that person looked like in her
    bedroom, but she can't do that.

         "You think about the trauma that she went through, the
    physical pain, the injuries to her, the raping, everything.
    And again and again, 'Don't look at me. Don't look at me.'
    Good thing he said that, because she didn't get to look at
    him. She didn't get to look at him. And all she can tell
    you when she was in the courtroom whether she could
    identify him was his energy.

         "'That's the way I operate. You people don't
    understand.' That's him; that's his energy. And you can
    give that whatever weight you deem necessary for that sixth
    sense of hers that she uses, saying, 'That's him; that's
    his energy.' Well, you might remember one of her positive
    expressions: I'm determined to move into my next perfect
    living space in New Hampshire by March seventh, 2006.
    Must. She certainly got that energy right. She just
    didn't get out in time.

         "March seventh, the day before this happens? That's
    her energy there, and her energy was in here. If you don't
    accept her identification of him through those senses, you
    don't have to. You can put it aside. You can disregard
    it, because you have enough evidence in this case to
    identify him as the perpetrator."

    Contrary to the defendant's claim, the energy testimony was

not the "cornerstone" of the Commonwealth's case.    The
                                                                   20


prosecutor did note the victim's energy testimony, but also told

the jury they did not have to credit that testimony because

there was so much other evidence to identify the defendant as

the perpetrator.   This did not constitute improper vouching.

    However, just as the evidence of an extrasensory

identification should not have been admitted, this argument was

improper.    The Commonwealth should not have been urging jurors

to give the victim's extrasensory energy recognition "whatever

weight [they] deem necessary," or arguing that her ESP had a

track record of reliability.    Nonetheless, defense counsel did

not object to this portion the prosecutor's closing argument.

Again, we cannot say on this record that not objecting was a

manifestly unreasonable tactical decision.    In fact, there is no

claim before us that it amounted to ineffective assistance of

counsel.    In all the facts and circumstances here, this error

did not create a substantial risk of a miscarriage of justice.

See Commonwealth v. Roderiques, 462 Mass. 415, 427 (2012)

("[O]ne factor to be considered in determining whether an error

has created a substantial risk of a miscarriage of justice is

whether defense counsel's failure to object was simply a

reasonable tactical decision").

    c.     Identification instruction.   The defendant claims that

the judge erred in her jury instruction on identification by

adding language to the standard instruction, which permitted the
                                                                     21


jury to consider whether a witness had an adequate opportunity

to "ascertain [the offender's] demeanor," and put a "judicial

imprimatur of approval" on the victim's putative identification

of the defendant.     We disagree.   At trial, the defendant

objected, but on different grounds.     The defendant objected

based on his belief that this was an improper reference to the

victim's energy testimony because he did not "know if

ascertaining a demeanor is an identification."      The defendant

did not claim the instruction provided judicial approval of the

victim's energy recognition testimony.7     In any event, there was

no error.

         Our review of claimed jury instruction errors requires us

to "evaluate the instruction as whole, looking for the

interpretation a reasonable juror would place on the judge's

words."     Commonwealth v. Trapp, 423 Mass. 356, 361, cert.

denied, 519 U.S. 1045 (1996).     "We do not consider bits and

pieces of the instruction in isolation."      Commonwealth v. Young,

461 Mass. 198, 207 (2012).

     The judge instructed as follows:

          "When evaluating a witness'[s] identification, you may
     consider many factors, including the circumstances

     7
       At trial, the defendant sought the standard instruction on
identification, even though the only identification of the
defendant by the victim was her identification based on the
defendant's "energy." No argument is raised here that the jury
should not have been instructed on identification.
                                                                   22


     surrounding the encounter between the witness and the
     offender, and whether under those circumstances, the
     witness had an adequate opportunity to see the offender, to
     hear his voice, or to ascertain his demeanor."

The addition of the concluding phrase regarding demeanor was not

prejudicial and, as the judge specifically noted at the charge

conference, was "separate and apart from the [victim's] energy"

reference.   Also, as the judge noted, the jury heard references

to demeanor evidence when the victim told the police that her

attacker had a "cocky attitude" and was "a coward from all

angles."   These were references to the behavior of the attacker,

not to his energy, and in no manner bolstered the victim's

credibility.   When the judge's jury instructions are viewed as a

whole, no reasonable juror could have improperly interpreted the

references to demeanor as the defendant now suggests.

     d.    New trial motions.   The defendant's first motion for

new trial was denied in 2009.     In that motion, the defendant

claimed he received ineffective assistance of trial counsel for

a number of reasons, including counsel's failure to contest the

defendant's ability to fit through the hole in the wall that led

to the victim's apartment.8     In 2012, the defendant filed a

second motion for new trial in which he claimed he was denied




     8
       The defendant filed a notice of appeal from the denial of
his first motion for new trial, but he does not raise any claim
related to it on appeal.
                                                                    23


his right to a public trial,9 and that he received ineffective

assistance of trial and first appellate counsel based on their

failure to establish that he could not fit through the hole in

the wall or, in the alternative, that expert evidence of the

hole's dimensions was newly discovered.   On appeal, the

defendant claims that the motion judge, who was the also trial

judge, abused her discretion by denying his second motion for

new trial based on ineffective assistance.   We disagree for

several reasons.

     First, under the doctrine of direct estoppel, a defendant

is barred from seeking review of claims "actually litigated" and

decided against him.   Commonwealth v. Rodriguez, 443 Mass. 707,

710 (2005).   Here, the issue raised in the defendant's first

motion for new trial, i.e., the claim of ineffective assistance

related to the hole in the wall, was actually litigated and

determined in that motion, it was an essential issue in the

case, and the defendant had an opportunity to obtain review of

the determination of his motion for new trial.   See ibid.     As

such, direct estoppel operates as a bar to the defendant's

attempt, in his second motion for a new trial, to relitigate his

ineffective assistance claim.




     9
       The defendant's closed court room claim is not before us
on appeal.
                                                                   24


    Second, "[a] defendant seeking a new trial on the basis of

newly discovered evidence must establish both that the evidence

is newly discovered and that it casts real doubt on the justice

of the conviction."   Commonwealth v. Pike, 431 Mass. 212, 218

(2000).   "A defendant seeking a new trial on the ground of newly

discovered evidence must first establish that the evidence was

not discoverable at the time of trial despite the due diligence

of the defendant or defense counsel."   Commonwealth v. Sena, 441

Mass. 822, 830 (2004).   Moreover, the defendant must establish

that the evidence in question was "unknown to the defendant or

his counsel and not reasonably discoverable by them at the time

of trial . . . .   The defendant has the burden of proving that

reasonable pretrial diligence would not have uncovered the

evidence."   Commonwealth v. Grace, 397 Mass. 303, 306 (1986).

    In his brief, the defendant claims that the judge ruled

that the proffered expert testimony was, among other things,

"newly discovered."   The judge did not so rule.10   Rather, the

judge assumed for purposes of her resolution of the motion that

the evidence was newly discovered.   We need not, and do not,

make the same assumption.   The defendant has failed to

demonstrate that reasonable pretrial diligence would not have

uncovered the analyses in the expert's affidavits.    There was no

    10
       This misrepresentation was repeated in the defendant's
reply brief.
                                                                    25


showing that the technology used to measure the hole's

dimensions and the defendant's chest did not exist at the time

of trial.     See Commonwealth v. Shuman, 445 Mass. 268, 275

(2005).   Indeed, measuring is not on the vanguard of scientific

techniques.

     Third, even if the evidence were newly discovered, it was

not an abuse of the judge's discretion to conclude that it did

not cast real doubt on the justice of the defendant's

convictions.    See Commonwealth v. Grace, supra.   Nor was it an

abuse of discretion for the judge, employing the lens of

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), to have

concluded that it would not have "accomplished something

material for the defense."     Commonwealth v. Satterfield, 373

Mass. 109, 115 (1977).11

     The expert's proffered measurements were contradictory as

to the hole's narrowest point, and made the faulty assumption

that the widest part of the defendant's chest would have to pass

through the narrowest part of the hole.     Also, the jury had

heard testimony from two witnesses who were similar in weight to

the defendant, but shorter, who were able to fit through the


     11
       Also, contrary to the defendant's reply brief, the judge
did not find counsel to be ineffective. Instead, the judge held
that the first prong of Commonwealth v. Saferian, 366 Mass. at
96, had been met, but the defendant failed to establish
prejudice under the second prong.
                                                                    26


hole or through a replica of the hole constructed from its

dimensions.   Finally, when these facts are added to the

overwhelming evidence of the defendant's identification as the

attacker cataloged above in section 1.e, the denial of the

motion was proper and not an abuse of discretion.

    e.   Attempt to burn personal property.   The defendant

claims his conviction of attempt to burn personal property, in

violation of G. L. c. 266, § 5A, was not supported by sufficient

evidence because the items in question were actually burned.       We

agree.

     When evaluating sufficiency, the evidence must be viewed

in the light most favorable to the Commonwealth with specific

reference to the substantive elements of the offense.   See

Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979); Commonwealth

v. Latimore, 378 Mass. 671, 677-678 (1979).   In this case, to

establish the defendant's guilt of attempting to burn personal

property in violation of G. L. c. 266, § 5A, the Commonwealth

was required to prove that (1) the defendant attempted to set

fire to property, (2) the defendant did so wilfully, and (3) the

defendant did so maliciously, i.e., with an unlawful motive and

without excuse.

    Relative to the attempt, the defendant claims that because

he actually set fire to the box, it cannot be an attempt.     We

agree.   In general, to prove an attempt under G. L. c. 274, § 6,
                                                                 27


the elements are (1) the intent to commit the substantive crime,

(2) an overt act in furtherance of commission of the substantive

crime, and (3) nonachievement of the substantive crime -- that

is, no actual completion of the substantive crime but, rather,

an attempt ending before the substantive crime can be fulfilled.

See Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990);

Commonwealth v. Bell, 455 Mass. 408, 412 (2009).   Thus, under

the general attempt statute, the completed substantive offense

nullifies the existence of an attempt.   Under G. L. c. 266,

§ 5A, the Legislature included a separate definition of what

constituted an attempt under § 5A.   It states:

    "The placing or distributing of any flammable, explosive or
    combustible material or substance or any device in or
    against any building, structure or property mentioned in
    the foregoing sections in an arrangement or preparation
    with intent eventually to wilfully and maliciously set fire
    to or burn such building, structure or property, or to
    procure the setting fire to or burning of the same shall,
    for the purposes of this section, constitute an attempt to
    burn such building, structure or property."

While this dedicated definition of attempt for purposes of arson

relaxed the stricter common-law requirements set forth in

Commonwealth v. Peaslee, 177 Mass. 267, 271-272 (1901), and

Commonwealth v. Ali, 7 Mass. App. Ct. 120, 123 (1979), it did

not expand the understanding of an attempt to be more than an

inchoate crime.   Because the evidence, even in the light most

favorable to the Commonwealth, showed the box of items was
                                                                    28


actually ablaze before the victim extinguished it, the defendant

achieved the substantive crime and no actual attempt occurred.12

     f.   Duplicative convictions.    The defendant claims his

conviction of assault and battery by means of a dangerous weapon

causing serious bodily injury is a lesser included offense of

his conviction of mayhem (second theory).     The Commonwealth

concedes the issue, and we agree.     See Commonwealth v. Forbes,

86 Mass. App. Ct. 197, 202-203 (2014).

     3.   The Commonwealth's appeal.    The judge allowed the

defendant's motion, pursuant to G. L. c. 278A, § 7, for

postconviction DNA testing.   On appeal, the Commonwealth claims

the motion should have been denied.     We affirm.

     The Commonwealth claims the judge erred in concluding that

the defendant was entitled to postconviction DNA testing under

G. L. c. 278A, where there was no "reasonable potential" that

testing would result in evidence material to the identification

of the perpetrator of the crime.     We disagree.    Under G. L.

c. 278A, § 7(b)(4), inserted by St. 2012, c. 38, "[t]he court

shall allow the requested scientific or forensic analysis" where

the defendant demonstrates by a preponderance of the evidence

"that the requested analysis has the potential to result in

evidence that is material to the moving party's identification

     12
       Given the result we reach, we need not address the
defendant's claim that the property at issue was not identified.
                                                                   29


as the perpetrator of the crime in the underlying case."    "We

review questions of statutory interpretation de novo."

Commonwealth v. Wade, 467 Mass. 496, 501 (2014).    As the Supreme

Judicial Court has held, "potential" within this framework is

not reasonable potential:    "The 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, 472

Mass. 120, 135-136 (2015).

    Here, the defendant established that DNA testing of the

victim's finger swabs has potential under G. L. c. 278A,

§ 7(b)(4), to result in material identification evidence.

During trial, the victim recounted her efforts to "peel" and

"pull" the defendant's fingers off her nose and mouth.     Even if

it is "highly unlikely" that DNA testing will yield any

probative results, the victim's testimony does suggest the

potential that her assailant's DNA may have been on her hands

and that the finger swabs could therefore produce material

evidence.   See Commonwealth v. Clark, supra at 135 (request for

DNA analysis "has the 'potential' to result in evidence" where

victim testified that defendant's knife may contain his blood or

skin cells after victim attempted to stab him).
                                                                   30


    The Commonwealth also asserts that the defendant fails to

satisfy G. L. c. 278A, § 3(b)(5), which is required under

§ 7(b)(3), because a reasonably effective attorney would not

have sought DNA analysis of the victim's finger swabs.    We

disagree.

    Under G. L. c. 278A, § 7(b)(3), the defendant must

demonstrate by a preponderance that the evidence or biological

material has not been subject to the analysis requested under

G. L. c. 278A for one of five enumerated reasons stated in

§ 3(b)(5).   The defendant alleges that DNA testing did not occur

in this case because his trial counsel failed to request testing

and a "reasonably effective attorney would have sought [DNA]

analysis."   G. L. c. 278A, § 3(b)(5)(iv).   For the purposes of

G. L. c. 278A, the defendant must demonstrate that "'a'

reasonably effective attorney would have sought the requested

analysis, not that every reasonably effective attorney would

have done so."   Commonwealth v. Wade, supra at 511.   In this

instance, the defendant's trial counsel decided to forgo DNA

analysis and instead pursued a different trial strategy.

Because G. L. c. 278A does not apply the Saferian ineffective

assistance of counsel framework to evaluate whether an attorney

is reasonably effective, the fact that trial counsel followed

one trial strategy where another reasonably effective attorney
                                                                     31


might have sought DNA testing is enough to satisfy

§ 3(b)(5)(iv).

    Finally, the Commonwealth claims that we should consider

the strength of its case in determining whether the defendant

demonstrated the necessary G. L. c. 278A, § 7, factors by a

preponderance of the evidence.   We disagree.   Despite the cost

of a DNA analysis and the finite resources of the Commonwealth,

"the Legislature intended to permit access to DNA testing

'regardless of the presence of overwhelming evidence of guilt in

the underlying trial.'"   Commonwealth v. Clark, supra at 136,

quoting from Commonwealth v. Wade, supra at 511.     As discussed

above, the defendant has demonstrated that a reasonable attorney

would have sought DNA analysis and that such analysis has the

"potential" to result in evidence that is material to his

identification as the perpetrator of the crime.    Because the

Legislature enacted G. L. c. 278A with the intent to remedy the

wrongful convictions of factually innocent persons, we construe

the statute and its language "in a manner that is generous to

the moving party."   Commonwealth v. Clark, supra.    We therefore

afford the defendant the opportunity for testing despite the

strength of the Commonwealth's case, and our affirmance of his

convictions.

    4.   Conclusion.   The order denying the defendant's second

motion for a new trial is affirmed.   On the indictments charging
                                                                  32


the defendant with assault and battery by means of a dangerous

weapon causing serious bodily injury, and attempt to burn

personal property, the judgments are reversed, the verdicts are

set aside, and those indictments are to be dismissed.    The

remaining judgments of conviction are affirmed, the sentences

thereon are vacated, and the case is remanded for resentencing

consistent with this opinion.   The order allowing the

defendant's motion for postconviction DNA testing is affirmed.

                                   So ordered.
