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SJC-12560

               COMMONWEALTH   vs.   STANLEY WILLIAMS.



        Hampden.      December 3, 2018. - April 9, 2019.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                           & Kafker, JJ.


Evidence, Scientific test, Relevancy and materiality, Self-
     defense. Self-Defense. Practice, Criminal, Postconviction
     relief. Statute, Construction. Homicide.



     Indictments found and returned in the Superior Court
Department on April 16, 2004.

     A postconviction motion for forensic testing, filed on
April 10, 2018, was considered by Constance M. Sweeney, J.


     Merritt Schnipper for the defendant.
     David L. Sheppard-Brick, 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.


    BUDD, J.   Enacted in 2012, see St. 2012, c. 38, G. L.

c. 278A (chapter 278A) allows those who have been convicted but
                                                                   2


assert factual innocence to have access to forensic and

scientific testing of evidence and biological material that has

the potential to prove their innocence.   G. L. c. 278A, § 2.

Here, we address whether the defendant, who claims that no crime

occurred, may make a prima facie case for a chapter 278A

request, which, as relevant here, includes (1) asserting factual

innocence, and (2) providing information demonstrating that the

testing has the potential to result in evidence that is material

to his identity as the perpetrator of the crime in the

underlying case.   G. L. c. 278A, § 3 (b) (4), (d).   For the

reasons discussed below, we conclude that he may.1

     Statutory framework.   As an initial matter, only a

defendant who "asserts factual innocence of the crime for which

[he or she] has been convicted" is eligible to request

postconviction forensic testing pursuant to chapter 278A.     G. L.

c. 278A, § 2.   Those eligible to request such testing must

satisfy the statutory requirements set forth in chapter 278A,

which consist of two procedural stages:   a motion stage and, if

the motion is allowed, a hearing stage.   Commonwealth v. Wade,

467 Mass. 496, 501 (2014) (Wade II), S.C., 475 Mass. 54 (2016).




     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.
                                                                   3


     First, pursuant to § 3, the individual seeking the analysis

must present by way of motion "information demonstrating that

the 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," among other things.2    G. L.


     2 General Laws c. 278A, § 3 (b), requires that the movant
provide the following:

          "(1) the name and a description of the requested
     forensic or scientific analysis;

          "(2) information demonstrating that the requested
     analysis is admissible as evidence in courts of the
     commonwealth;

          "(3) a description of the evidence or biological
     material that the moving party seeks to have analyzed or
     tested, including its location and chain of custody if
     known;

          "(4) information demonstrating that the 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; and

          "(5) information demonstrating that the evidence or
     biological material has not been subjected to the requested
     analysis because:

          "(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;
                                                                    4


c. 278A, § 3 (b) (4).   In addition, the movant must include an

affidavit "stating that [he or she] is factually innocent of the

offense of conviction and that the requested forensic or

scientific analysis will support the claim of innocence."    G. L.

c. 278A, § 3 (d).   If it chooses, the Commonwealth may provide a

response "to assist the court" in determining whether the

defendant's motion meets the preliminary statutory requirements.

G. L. c. 278A, § 3 (e).   However, the motion stage is

"essentially nonadversarial."   Wade II, 467 Mass. at 503.

    If the court finds that the preliminary requirements at the

motion stage have been satisfied and allows the motion, the

parties proceed to the next step in the process, in which the

Commonwealth must file a response that "include[s] any specific

legal or factual objections that [it] has to the requested

analysis."   G. L. c. 278A, § 4 (c).   The court then will hold an

evidentiary hearing.    G. L. c. 278A, § 6.   At the hearing, the

movant must establish by a preponderance of the evidence each of



         "(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."
                                                                    5


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 [his or her] identification as the

perpetrator of the crime."3   See G. L. c. 278A, §§ 3 (e), 6,

7 (b) (4).   If such a showing is made, the court shall allow the

requested forensic or scientific analysis, the results of which

may be used to support a motion for a new trial.   See G. L.

c. 278A, § 7 (b); Wade II, 467 Mass. at 505.


     3 The defendant must demonstrate 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 [§ 3 (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

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

G. L. c. 278A, § 7 (b).
                                                                    6


     Here, we are concerned with whether a defendant who alleges

lawful self-defense (1) is eligible to move for chapter 278A

testing in the first instance by asserting factual innocence as

required by G. L. c. 278A, § 2; and (2) is able to provide

"information demonstrating that the analysis has the potential

to result in evidence that is material to [his or her]

identification as the perpetrator of the crime in the underlying

case" as required by G. L. c. 278A, § 3 (b) (4).

     Background and prior proceedings.   In 2004, the defendant

was indicted for murder and unlawful possession of a firearm and

ammunition.   One year later, the defendant pleaded guilty to the

lesser included offense of manslaughter, as well as the

associated weapons charges, and received a sentence of from

eighteen to twenty years in State prison.4

     At the change of plea hearing, the Commonwealth presented

the following facts.   The defendant and the victim approached

one another and engaged in a loud verbal argument, and then a

physical altercation ensued.   A witness observed the victim

appear to reach for his waistband.   The defendant then took a

firearm and shot the victim, causing the victim to fall to the




     4 The defendant also received a sentence of from three to
five years in State prison on the weapons charges, to be served
concurrently with the sentence on the manslaughter charge.
                                                                    7


ground.   The defendant shot again.   He ran away for a short

period of time, but he returned, fired again, and then fled.

     Although the defendant agreed to the Commonwealth's

recitation of the facts during his change of plea colloquy, he

now disputes those facts and asserts his innocence, claiming

that he acted in self-defense.   He alleged in the affidavit

accompanying his chapter 278A motion that he grabbed the

victim's wrist when the victim pulled out a gun, and pushed

against the victim, at which time he heard two gunshots in close

succession.   The defendant further alleged that he did not take

the gun with him when he fled, and that he did not return to

shoot the victim again.5

     The defendant filed two chapter 278A motions in 2013 and

2016; both were denied.6   In 2018, the defendant filed his third

chapter 278A motion, requesting that clothing recovered from the

victim be tested for traces of gunshot residue and that shell

casings recovered at the crime scene be tested for fingerprints.




     5 Pursuant to G. L. c. 278A, § 3 (d), a judge is precluded
from using a moving party's guilty plea in the underlying case
or any incriminating statements made by the movant in finding
that identity was not or could not have been a material issue in
the underlying case.

     6 The defendant filed these motions pro se and subsequently
appealed from the orders denying them. The denial of the 2013
motion was affirmed. See Commonwealth v. Williams, 86 Mass.
App. Ct. 1121 (2014). The appeal from the denial of the 2016
motion was stayed at the defendant's request.
                                                                     8


The defendant claimed that forensic testing of this evidence

would show that the weapon belonged to the victim and that the

defendant shot the victim in self-defense.

    The Commonwealth filed a response asserting that the

defendant was not eligible to request relief pursuant to G. L.

c. 278A, § 2, and that the requested analysis did not meet the

requirement of G. L. c. 278A, § 3 (b) (4).     In a margin

endorsement, the motion judge denied the defendant's motion "for

the reasons set forth in the Commonwealth's opposition."       The

defendant appealed, and we granted his application for direct

appellate review.

    Discussion.      The defendant argues that the judge erred in

denying his chapter 278A motion because (1) the defendant

properly asserted his factual innocence and (2) the requested

testing has the potential to result in evidence that is material

to his identification as the perpetrator of the crime.       See

G. L. c. 278A, §§ 2, 3 (b) (4), (d).     We review the defendant's

claims on a de novo basis.    See Commonwealth v. Martin, 476

Mass. 72, 75 (2016) (questions of statutory interpretation are

reviewed de novo).

    As an initial matter we note that, as is the case with all

statutes, chapter 278A 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,
                                                                    9


considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished" (citation omitted).   Commonwealth v. Millican,

449 Mass. 298, 300 (2007).   We have previously recognized that

the Legislature's stated purpose in enacting G. L. c. 278A was

"to remedy the injustice of wrongful convictions of factually

innocent persons by allowing access to analyses of biological

material with newer forensic and scientific techniques . . .

[to] provide a more reliable basis for establishing a factually

correct verdict than the evidence available at the time of the

original conviction."   Wade II, 467 Mass. at 504, quoting 2011

Senate Doc. No. 753 and 2011 House Doc. No. 2165.   "The

Legislature intended G. L. c. 278A to make postconviction

forensic testing easier and faster than it had been for

defendants who sought such testing in conjunction with motions

for new trials pursuant to Mass. R. Crim. P. 30, as appearing in

435 Mass. 1501 (2001)."7   Commonwealth v. Moffat, 478 Mass. 292,

301 (2017).




     7 "A motion for a new trial [pursuant to Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001),] is discretionary
and may be denied without a hearing, and a defendant is not
entitled to obtain scientific testing of evidence unless he
makes a prima facie showing that the test results would warrant
a new trial" (quotation and citation omitted). Commonwealth v.
Wade, 467 Mass. 496, 505 (2014), S.C., 475 Mass. 54 (2016).
                                                                     10


    As mentioned supra, "the threshold determination to be made

at the preliminary stage, pursuant to G. L. c. 278A, § 3, . . .

is essentially nonadversarial," Wade II, 467 Mass. at 503; the

Commonwealth may, but need not, provide an initial response.

G. L. c. 278A, § 3 (e).   And although the motion judge makes a

preliminary determination as to whether a defendant has included

all the information required by § 3 based on a review of the

motion and the supporting documentation, it is not until the

hearing stage that the defendant must prove the assertions that

he or she makes in that motion.     See Wade II, supra at 503-504,

quoting G. L. c. 278A, § 3 (c).     At the motion stage, "[t]he

judge does not 'make credibility determinations, or . . .

consider the relative weight of the evidence or the strength of

the case presented against the [defendant] at trial.'"     Moffat,

478 Mass. at 296, quoting Wade II, supra at 505-506.     In other

words, at the motion stage, the movant's burden is low.        See

Commonwealth v. Clark, 472 Mass. 120, 124-125 (2015).

    With these factors in mind, we begin with the plain

language of the provisions at issue.    See Commonwealth v.

LeBlanc, 475 Mass. 820, 821 (2016).

    1.   Eligibility requirement.     Chapter 278A makes the

assertion of factual innocence both a threshold requirement for

seeking postconviction forensic testing, G. L. c. 278A, § 2, and

an element of the prima facie case a movant must make before a
                                                                    11


court will order an evidentiary hearing to determine whether to

allow such testing, G. L. c. 278A, § 3 (d).

       The chapter defines "factually innocent" as "a person

convicted of a criminal offense who did not commit that

offense."    G. L. c. 278A, § 1.   The Commonwealth contends that

the defendant's claim of self-defense is essentially a claim of

legal innocence but not factual innocence.     The defendant argues

that because he alleges facts demonstrating that he was

convicted based on acts taken in lawful self-defense, he

properly may assert his factual innocence of manslaughter, the

crime of which he was convicted.    We agree with the defendant.

       "By employing the phrase 'factually innocent' in G. L.

c. 278A, § 3 (d), the Legislature clearly intended to require a

moving party to assert that the party did not commit the offense

of which the party was convicted; an assertion of legal

innocence, such as a belief in an entitlement to a reversal

based on insufficient evidence or a procedural fault, would not

meet the plain terms of the statute."     Wade II, 467 Mass. at

515.   The Commonwealth reasons that because the defendant does

not deny having committed the act of homicide, he may be legally

innocent, but cannot claim factual innocence.     This position is

both contrary to our self-defense jurisprudence and a misreading

of chapter 278A.
                                                                   12


    First, "we have long recognized that self-defense negates

the element of 'unlawfulness.'"     Commonwealth v. Rodriguez, 370

Mass. 684, 688 (1976).     See Commonwealth v. Webster, 5 Cush.

295, 303 (1850) ("Homicide may be lawful or unlawful . . . .       It

may also be justifiable, and of course lawful, in necessary

self-defence").   Our jurisprudence has considered self-defense a

factual issue, as it is directly correlated with the underlying

facts of the case and whether the defendant acted justifiably

under the circumstances.     See Commonwealth v. Glacken, 451 Mass.

163, 166-167 (2008).     When a defendant asserts that he or she

acted in self-defense, the trier of fact must consider whether

the defendant had "a reasonable ground to believe" that he or

she "was in imminent danger of death or serious bodily harm,"

from which the only way to save him- or herself was by using

deadly force; whether, after availing him- or herself "of all

proper means to avoid physical combat," resort to deadly force

was necessary; and whether the amount of force used by the

defendant "was reasonably necessary in all the circumstances of

the case."   Id. at 167.

    Importantly, a claim of self-defense in a homicide case is

not related to a flaw in the proceedings or a failure on the

part of the Commonwealth to prove the crime charged beyond a

reasonable doubt.   Nor is it a mere procedural maneuver to avoid

a guilty finding.   Rather, a claim of self-defense is a claim
                                                                     13


that the homicide was justified and, here, for purposes of

chapter 278A, it is a claim that the movant is factually

innocent of manslaughter.

     Second, chapter 278A requires the movant to "assert[]

factual innocence of the crime for which the person has been

convicted" (emphasis added).     G. L. c. 278A, § 2.     Thus, the

defendant need not allege that he did not shoot the victim; he

need only assert that, because he acted in self-defense, he did

not commit manslaughter, the crime of which he was convicted.

This assertion meets the "factual innocence" requirement.8

     Accordingly, if a defendant asserts in the affidavit

accompanying his or her chapter 278A motion that he or she was

convicted based on acts that do not constitute a crime, the

defendant has satisfied the threshold eligibility requirement

set forth in chapter 278A.     See G. L. c. 278A, § 2.

     2.   Section 3 (b) (4) requirement.    At the motion stage of

chapter 278A, the movant must include in his or her motion

"information demonstrating that the [requested] analysis has the

potential to result in evidence that is material to the moving




     8 The defendant here asserts, as he must pursuant to G. L.
c. 278A (chapter 278A), that he is factually innocent of
manslaughter, and that the testing he seeks has the potential to
fully exonerate him. Our holding is thus limited to those cases
in which the defendant alleges that no crime occurred (as
compared to a case in which a defendant alleged that he or she
committed a lesser included offense).
                                                                   14


party's identification as the perpetrator of the crime in the

underlying case."   G. L. c. 278A, § 3 (b) (4).

    The Commonwealth claims that the defendant failed to meet

this requirement, arguing that the identity of the perpetrator

was not at issue because the fact that the defendant shot the

victim is undisputed.   In contrast, the defendant claims that,

as he alleges that no crime occurred, he was wrongly identified

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

Therefore, the defendant argues that he properly asserted that

the testing has the potential to be material in proving this

point.   Reading the provision in full, and in conjunction with

the statute as a whole, we conclude that chapter 278A may be

utilized by those defendants who assert that they are innocent

because no crime occurred.

    In the context of the statute, it is not "identity" broadly

defined that is at issue; the concept has a particular meaning

within chapter 278A.    "Identity" is specifically defined in the

statute as "the moving party's identity as the perpetrator of

the offense for which the moving party was convicted in the

underlying case" (emphasis added).    G. L. c. 278A, § 1.

Correspondingly, in G. L. c. 278A, § 3 (b) (4), the question of

"the moving party's identification" is referenced in connection

with "the perpetrator of the crime in the underlying case"

(emphasis added).   Thus, rather than generally referring to the
                                                                  15


person who took the action, "identification" refers to the

person who perpetrated the crime in the underlying case.     Here,

it is undisputed that the defendant was the actor; both sides

agree that the defendant shot the victim.   However, the

defendant denies having committed the crime in the underlying

case, i.e., manslaughter, because he claims self-defense.

    According to the Commonwealth, the use of "the" rather than

"a" to modify "perpetrator" in the phrase "the perpetrator of

the crime" in G. L. c. 278A, § 3 (b) (4), presupposes that "the

crime" occurred, and the testing must be relevant to determining

whether the defendant was "the perpetrator" of that crime.      That

is, the definite article indicates that the Legislature meant to

refer only to circumstances in which a crime was committed and

the movant seeks forensic testing that will exclude him or her

as the perpetrator (and will instead demonstrate the existence

of a third-party culprit).   This interpretation is flawed in

that it fails to take into account all of the words in the

provision.   That is, it renders superfluous the phrase "the

crime in the underlying case."   See Chin v. Merriot, 470 Mass.

527, 537 (2015) ("we 'give effect to all words of a statute,

assuming none to be superfluous'" [citation omitted]).

    Indeed, nothing in the plain language of G. L. c. 278A,

§ 3 (b) (4), indicates that the Legislature intended to limit

requests under the chapter to cases in which the movant alleges
                                                                   16


that someone else, i.e., a third-party culprit, committed the

crime.9   "We do not read into the statute 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."10

Commissioner of Correction v. Superior Court Dep't of the Trial

Court for the County of Worcester, 446 Mass. 123, 126 (2006).

     On a practical level, a defendant who claims that no crime

occurred is in the same position as a defendant who claims that




     9 Likewise, nothing in G. L. c. 278A, § 3, or in any other
provision of chapter 278A suggests that those who claim that no
crime occurred are barred from relief under the statute. See
Casseus v. Eastern Bus Co., 478 Mass. 786, 795 (2017) ("When the
meaning of any particular section or clause of a statute is
questioned, it is proper, no doubt, to look into the other parts
of the statute: otherwise the different sections of the same
statute might be so construed as to be repugnant, and the
intention of the [L]egislature might be defeated" [citation
omitted]). Indeed, G. L. c. 278A, § 3 (d), requires simply that
a movant provide an affidavit accompanying his or her chapter
278A motion that states that the requested testing will support
a "claim of innocence."

     10We note that during the floor debate in both the House
and the Senate on what would become chapter 278A, although some
legislators who spoke in support of the bill referenced third-
party culprit scenarios, no legislator sought to limit the
postconviction access testing to defendants who claimed that
there was a third-party culprit involved. See State House News
Service (House Sess.), Feb. 8, 2012, at 5 (statement of Rep.
John V. Fernandes); State House News Service (House Sess.), Feb.
8, 2012, at 4-5 (statement of Rep. Eugene L. O'Flaherty); State
House News Service (Senate Sess.), July 28, 2011, at 2-3
(statement of Sen. Cynthia Stone Creem). See Commonwealth v.
Mogelinski, 466 Mass. 627, 633 (2013), quoting Wright v.
Collector & Treas. of Arlington, 422 Mass. 455, 457-458 (1996)
(statutory interpretation must be supported by history of
statute).
                                                                  17


he or she did not commit the crime that occurred:   both assert

innocence and, if true, neither is more culpable than the other.

Absent statutory language to the contrary, there is no reason to

treat these two categories of defendants differently.   Moreover,

considering the structure of the statute, it would be illogical

to interpret chapter 278A so that a defendant who alleges that

no crime occurred would be eligible to move for testing pursuant

to G. L. c. 278A, § 2, only to be stymied at the motion stage by

never being able to clear the G. L. c. 278A, § 3 (b) (4),

hurdle, especially given that the Legislature intentionally set

the bar low at the motion stage.   See Lowery v. Klemm, 446 Mass.

572, 578-579 (2006) ("we will not adopt a construction of a

statute that creates 'absurd or unreasonable' consequences"

[citation omitted]).

    Finally, a liberal reading of G. L. c. 278A, § 3 (b) (4),

fully comports with the purpose of chapter 278A, i.e., "to

remedy the injustice of wrongful convictions of factually

innocent persons" by "provid[ing] a more reliable basis for

establishing a factually correct verdict," Wade II, 467 Mass. at

504; our reading also aligns with the oft-stated rule that

remedial statutes are to be interpreted broadly, see, e.g., Neff

v. Commissioner of the Dep't of Indus. Accs., 421 Mass. 70, 73

(1995).
                                                                  18


     Accordingly, 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.

Here, the defendant has satisfied that threshold burden by

asserting that he acted in lawful self-defense.11

     Conclusion.   For the foregoing reasons, the order denying

the G. L. c. 278A, § 3, motion is reversed.   The case is hereby

remanded to the Superior Court for further proceedings

consistent with this opinion.

                                   So ordered.




     11Of course, in order to obtain the testing the defendant
seeks, 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. c. 278A, § 7 (b) (4). Here, that means
that the defendant will have to demonstrate by a preponderance
of the evidence that the analysis has the potential to result in
evidence that is material to proving that no crime occurred.
