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Appeals Court of Massachusetts.



Decided: April 29, 2021

By the Court (Sullivan, Desmond & Singh, JJ.1)


A District Court jury convicted the defendant, Daunte Beal, of unlawful possession of a firearm, G. L. c. 269, § 10 (a); carrying a loaded firearm without a license, G. L. c. 269, § 10 (n); assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A; and assault by means of a dangerous weapon, G. L. c. 265, § 15B (b). His convictions were affirmed on appeal. Commonwealth v. Beal, 474 Mass. 341 (2016). Thereafter he sought postconviction forensic deoxyribonucleic acid (DNA) testing to detect skin cells on the gun and shell casings. See G. L. c. 278A, § 3. The motion was denied without a hearing. He appeals, contending that a gun and five shell casings should be tested for “touch” or “skin cell” DNA. We affirm.

Background. We reference the facts at trial as summarized by the Supreme Judicial Court. See Beal, 474 Mass. at 343-344. On July 14, 2008, two brothers, Joao and Ovidio Pereira, attended a cookout at a house on Howard Avenue in the Dorchester section of Boston.2 A Toyota Corolla stopped in front of the house where the cookout was taking place. After a heated exchange, Joao and another guest threw beer bottles at the Toyota. One bottle hit the driver of the Toyota in the head and another bottle broke the rear side window on the driver's side. The driver got out of the car and fired two shots at the group. While the guests scattered, Joao and Ovidio ran to the back of the house as the driver chased after them. Unable to get inside, Joao and Ovidio ran back to the front porch where the driver stood on the first step and fired several more shots. One bullet struck Joao in the lower back. The driver ran back to the Toyota and jumped in the passenger side and the car sped away.

A neighbor who saw the incident from his bedroom window called 911. See Beal, supra at 344. The Toyota was recovered. It was registered to the defendant's mother; she provided police officers with the key to the car that the defendant gave her. Investigating officers found a gun on the floor of the car. See id. at 344. The gun was a .357 caliber Ruger revolver with blood on its butt and five shell casings inside its chamber. A criminalist “swabbed the defendant's hands for gunshot residue,” within four hours of the shooting and the swabs were negative.

At the time of his arrest, the defendant was bleeding from the side of his head; there was dried blood on his hands and face. Swabs of blood were collected from the firearm, the sidewalk in front of the Howard Avenue house, and the floor of an apartment the defendant had visited shortly before his arrest. DNA tests performed on the blood recovered from these locations included the defendant as a possible contributor to the blood samples. See id. The revolver, bullet, shell casings, and two beer bottles recovered from the scene were tested for latent fingerprints, but none had sufficient detail for comparison.

The defense at trial was misidentification. The defendant testified that he was a passenger in the car but that a man named J.R. was the shooter. See Beal, 474 Mass. at 343 n.4. The neighbor testified that he saw the shooter wearing a white T-shirt, dark baseball hat with an “A” on it, and black jeans. Beal claimed he wore a light blue T-shirt with yellow lettering, jeans, and yellow sneakers. He argued to the jury that there was no fingerprint or gunshot residue evidence to tie him to the gun, and that he did not fit the description of the shooter.

Beal accounted for the blood in the car, in front of the house, and in the apartment as follows. When the beer bottles were thrown at the car, a bottle hit the defendant, and a glass shard lodged in his head. He bled as he sat in the passenger seat of the car. Beal tried to stop the shooter; he got out of the car, grabbed J.R., and told him to “chill” and “leave it alone.” Unsuccessful, “Beal returned to the front passenger's seat” and used a towel to stop the bleeding. After the shooting, as J.R. returned to the driver's seat, “Beal tried to remove the key from the ignition, but J.R. struck him in the head with the gun, causing his head to bleed even more.” They drove off. Beal testified that he did not touch the gun.

After his conviction and appeal, Beal moved pursuant to G. L. c. 278A for skin cell DNA testing of the gun and the shell casings. A judge of the Superior Court denied the motion without a hearing, ruling that “[f]ollowing full review of the file, motion denied for failure to meet the requirements of [G. L. c. 278A, § 3 (5) (iv)].”

Discussion. “[T]he procedure for requesting DNA testing under G. L. c. 278A is a two-step process, the first step of which requires a judge to make a threshold determination whether a motion meets the requirements of § 3, and to notify the parties ‘as to whether the motion is sufficient to proceed under [G. L. c. 278A] or is dismissed.’ ” Commonwealth v. Clark, 472 Mass. 120, 130 (2015), quoting G. L. c. 278A, § 3 (e). Because the threshold inquiry under § 3 does not require a judge “to make credibility determinations, or to consider the relative weight of the evidence or the strength of the case presented against the moving party at trial,” Commonwealth v. Wade, 467 Mass. 496, 505-506 (2014), but, rather, is based on documentary evidence (the motion and any response that may be provided by the Commonwealth), we stand in the same position as the judge in determining whether the information presented in the motion meets the requirements of § 3. Accordingly, we review the judge's ruling de novo. See id. See also Commonwealth v. Linton, 483 Mass. 227, 233 (2019); Commonwealth v. Moffat, 478 Mass. 292, 298 (2017).

“[A]t the motion stage, the movant's burden is low.” Commonwealth v. Williams, 481 Mass. 799, 804 (2019). Although the Commonwealth contests the point, we assume without deciding that the defendant provided “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.” G. L. c. 278A, § 3 (b) (4).3 We therefore turn to the ground upon which the motion judge relied, namely whether “a reasonably effective attorney would have sought the analysis.” G. L. c. 278A, § 3 (b) (5) (iv). We apply an objective standard to assess whether a reasonably effective attorney would have sought the “touch” or trace DNA tests. See Moffat, 478 Mass. at 302. The statute requires only that “a reasonably effective attorney would have sought the requested analysis, not that every reasonably effective attorney would have done so.” Id., quoting Wade II, 467 Mass. 496, 511 (2014). See Linton, 483 Mass. at 237.

The defendant had a carefully constructed defense designed to explain the presence of his blood on the gun, the area in front of the Howard Street house, and the apartment. The defense hinged on his claim that he had never touched the gun, and that the police had arrested the wrong man. The gun had already been tested for blood DNA and the defendant fell within the sample. If Beale's skin cell DNA was found on the gun, its presence could arguably be explained by his claim that J.R. hit him on the head with the gun. If a third party's skin cell DNA were found, that evidence would add some value to the defendant's case, but the test would not show how or when that person touched the gun. Testing of the shell casings, however, stood to eviscerate his defense. As the evidence stood at trial, the defense was able to argue that his fingerprints were not on the gun or the casings. If his touch DNA were found on the casings, however, he would have been unable to argue that he had not touched the gun, and his defense would have collapsed. Further forensic testing, if the results were adverse, would have fatally undermined the defense. A reasonably effective attorney, armed with a misidentification defense and the absence of fingerprint or gunshot residue evidence linking the defendant to the gun, would not have risked the defense by requesting additional DNA testing. See Linton, 483 Mass. at 237. There was no error.

Order denying motion for postconviction forensic DNA testing affirmed.


2.   Because the brothers share the same last name, we refer to them by their first names.

3.   Beal submitted an affidavit that otherwise satisfied the requirements of § 3 (b) (1-3).

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