COMMONWEALTH v. RICHARD ANDREWS (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On March 12, 1999, the victim, Donna,² was raped in her apartment by a man claiming to be a maintenance worker. After an investigation, the police arrested the defendant for this attack. On March 10, 2000, the defendant pleaded guilty to five indictments: rape, indecent assault and battery on a person over fourteen, assault with intent to rape (two counts), and assault and battery. The defendant has served his sentences.

In 2023, the defendant moved to withdraw his guilty pleas based on egregious government misconduct. A judge of the Superior Court held an evidentiary hearing on the defendant's motion. Before the hearing, the defendant filed a motion in limine seeking to prevent his plea counsel from disclosing attorney-client communication. The judge denied the motion in limine. Ultimately, the judge found that the defendant had failed to satisfy his burden to prove egregious government misconduct and denied the defendant's motion to withdraw his guilty pleas. We vacate the denial of the defendant's motion to withdraw his guilty pleas and remand the case for further proceedings.

Background. 1. Evidence produced in discovery. On March 12, 1999, a man unknown to the victim (assailant) contacted her by telephone at her apartment. He claimed to be a maintenance worker in her building. He asked whether he could come to her apartment, and she said no. A short time later, the victim's twelve-year-old child and her daughter-in-law arrived. A few minutes later, the assailant appeared at the victim's front door and said his name was J.R. The victim let him in because her garbage disposal was broken. Another child, a friend Donna's child, arrived at the apartment after the assailant. The victim's daughter-in-law then left with the children.

Once the assailant was alone with the victim, she repeatedly asked him to leave. Instead, he grabbed her, pulled her into the bedroom, and sexually assaulted her. At one point he digitally penetrated her vagina. At some point during the assault, the victim kneed him in the groin and he bit her face.³ The assailant eventually left the apartment.

Immediately after the victim was assaulted, she called her friend and neighbor and reported what had happened. She said that her assailant had worn a green army fatigue jacket. The neighbor told the victim that her daughter's boyfriend, the defendant, wore that type of jacket. The defendant entered the neighbor's apartment, wearing that jacket, while the neighbor was on the telephone with the victim.

The victim gave a statement to the police the following day. She described the assailant as a very tall and heavy Black man with facial hair wearing blue jeans, a blue T-shirt, and an army green and black jacket. During the assault, she noted that he was wearing blue and white bikini-style underwear. She also told police that she realized that the assailant had ejaculated on her during the assault.

The neighbor's daughter gave investigating officers a pair of blue and white bikini-style underwear that she said belonged to the defendant. Officers sent the defendant's underwear and the underwear the victim wore during the attack to Cellmark Diagnostics Laboratory for deoxyribonucleic acid (DNA) testing. We discuss the results of that testing below.

On March 13, 1999, the defendant went to the police department and spoke with officers about the investigation. He told officers that the victim's daughter-in-law had invited him into the victim's apartment and he had agreed. He told the officers that after the victim's daughter-in-law and the children left the apartment, the victim propositioned him, but he had denied her advances and left shortly thereafter.

While preparing for trial, the defendant met with plea counsel several times. During these meetings, plea counsel shared with the defendant discovery materials he received from the Commonwealth, including police reports, notes describing witness interviews, grand jury testimony, and other documents.

2. Newly discovered evidence from the prosecutor's file. In August of 2021, new defense counsel (screening counsel) obtained a copy of the prosecutor's case file. It included, among other things, a handwritten note documenting the prosecutor's February 29, 2000 conversation with a DNA analyst from Cellmark Diagnostics; a handwritten note documenting the prosecutor's discussion with plea counsel on February 29, 2000; a March 4, 2000 DNA report from Cellmark Diagnostics (DNA report); and a letter dated March 6, 2000, from the prosecutor to plea counsel containing a formal plea offer (plea offer letter). Screening counsel reviewed the prosecutor's file with plea counsel. Due to the passage of time, plea counsel no longer had his file.

3. Motion to withdraw guilty pleas. a. Documentary evidence. Based on this investigation, the defendant filed a motion to withdraw his guilty pleas. The judge held an evidentiary hearing. The parties introduced into evidence several documents from the prosecutor's file. The defendant and plea counsel also testified.

The first exhibit was the DNA report. It summarized DNA test results from biological samples extracted from the defendant's underwear and the victim's underwear. The report discussed two material samples. The first was a sperm sample extracted from the victim's underwear. Plea counsel recalled that the victim had reported that she had sex with another man earlier that day. The defendant was “excluded as a source of the DNA obtained from this sample.” The second was a non-sperm sample extracted from the defendant's underwear. It contained a mixture of DNA from a man and a woman. Unsurprisingly, the male DNA profile in the defendant's underwear matched the defendant's DNA profile. As for the female DNA,

“[u]sing 11 of 13 loci, [the victim] cannot be excluded as a secondary source. No conclusion can be made regarding the secondary source at the remaining loci. The DNA from this sample also contains types which could not have originated from [the victim] or [the defendant].”

The DNA report also contained population statistics that determined the likelihood that certain DNA profiles developed from the biological samples, including the profile that matched the defendant, would appear in specific racial populations.⁴ The DNA report did not contain statistics determining the likelihood that the partial female DNA profile found in the defendant's underwear would match a person other than the victim.

The parties disputed whether the prosecutor had disclosed the DNA report to plea counsel.

Plea counsel initially submitted an affidavit in support of the defendant's motion in which he asserted, “I did not receive or review the forensic testing results, reports, or supporting files before [the defendant] offered his plea.” He also asserted, “I relied on [the prosecutor's] representations as to the results of Cellmark's forensic testing in advising [the defendant] regarding whether to accept the Commonwealth's plea offer.” Later, after accepting employment as a prosecutor with the same district attorney's office, plea counsel submitted a second affidavit ⁵ in which he asserted that he did not specifically remember whether or not he received the report.⁶ At the evidentiary hearing, he testified to the same effect. The defendant testified that plea counsel “showed me a State Police Crime Lab report, and he showed -– he told me that he -– he informed me that the DNA, which is semen that was on [the victim], he said that it belonged to me.” The defendant also testified that before he pleaded guilty, he received reports from the State police crime lab, but he did not see the Cellmark DNA report until screening counsel showed it to him in 2021.⁷

The Commonwealth introduced a “FAX LEAD SHEET” from the office of the district attorney, dated March 6, 2000, the day before the prosecutor's plea offer was set to expire.⁸ The document showed that five pages were being faxed from the prosecutor to the defendant's plea counsel. Behind this lead sheet was a copy of the five-page DNA report. This copy of the DNA report had numbering and wording at the top indicating that Cellmark had faxed it to the office of the district attorney on March 6, 2000. Neither party introduced any evidence, such as a fax confirmation report, confirming that the office of the district attorney had faxed the lead cover sheet or the DNA report to plea counsel.

The final exhibit was the prosecutor's March 6, 2000 plea offer letter. The letter stated in material part:

“As you are aware we have received the DNA results on the stain found on your clients [sic] underwear. The DNA of [the victim] was found in the fluid mixture on his underpants. As you are aware, Cellmark Diagnostics has assigned a statistical value to the probability that [the victim] was the source of the DNA. The statistical probability that the DNA belongs to [the victim] is incredibly high.”

In fact, as noted above, the DNA report did not “assign[ ] a statistical value to the probability that [the victim] was the source of the DNA” found in the defendant's underwear. Therefore, the prosecutor's subsequent claim that “the statistical probability that the DNA belongs to [the victim] is incredibly high” was wrong.

In that letter, the prosecutor extended the deadline to accept the plea offer from March 7, 2000, to March 10, 2000. Also, there was a handwritten notation on the letter, which read: “3/7/00 -- Spoke to [plea counsel.] This will be plea on 3/10.” The letter contained a “wet signature.”

Plea counsel testified that he did not remember whether he received the plea offer letter. The defendant testified that he had not seen the plea offer letter before he pled guilty. The Commonwealth claimed that the prosecutor faxed the DNA report to plea counsel on March 6, 2000, but did not send the plea letter, also dated March 6, 2000, to plea counsel.⁹

In their respective appellate briefs, both parties also referred to a page of handwritten notes with the printed heading, “CASE PROGRESS REPORT,” located in the district attorney's file, which stated, “On 2/29/00 I told [plea counsel] the results of DNA. Also gave [plea counsel] 1 wk to accept 2 1/2 - 3 1/2 agreed or else my offer would be 5-7.”

Finally, in its record appendix on appeal, the Commonwealth also included a second page of handwritten notes with the same printed heading, “CASE PROGRESS REPORT.” These notes were dated “2/29/00,” included the notation, “Spoke to Kim D,” who worked at Cellmark,¹⁰ and summarized the DNA results in the case. This document stated: (1) as to the defendant's underwear, “primary secondary source -- [the victim]”; and (2) as to the victim's underwear, “sperm fraction -- Δ.” In other words, this document stated, contrary to the DNA report, that: (1) the victim's DNA was in the defendant's underwear; and (2) that the defendant's DNA was in sperm in the victim's underwear.¹¹

b. The prosecutor's misstatements or misrepresentations. The documents establish, and the Commonwealth concedes, that the prosecutor misstated the results of the DNA testing to the defendant's attorney. The prosecutor's handwritten notes on February 29, 2000, from her conversation with Kimberly G. Duncan, the Cellmark Staff DNA Analyst who authored the report, may show that either Duncan misreported the DNA results or the prosecutor did not understand what Duncan told her. Her notes then state that she conveyed the incorrect information to defense counsel.

i. Misstatements that the victim's DNA was in the defendant's underwear. The prosecutor's handwritten notes state that as to the DNA in the defendant's underwear, the “primary secondary source was [the victim].” If there is any doubt about what she conveyed, her understanding is documented in the March 6, 2000 letter with her wet signature, whether she sent that letter or not. As noted above, that letter states, “The DNA of [the victim] was found on the fluid mixture on [the defendant's] underplants. As you are aware, Cellmark Diagnostics has assigned a statistical value to the probability that [the victim] was the source of the DNA. The statistical probability that the DNA belongs to [the victim] is incredibly high.” The prosecutor misstated the DNA results. As the Commonwealth rightly concedes, “[t]he letter incorrectly states that Cellmark Diagnostics assigned a statistical value to the DNA comparison.” In fact, the DNA report stated only that the victim could not be excluded as the source of some of the DNA mixture in the defendant's underwear. The DNA report did not state that any of the DNA in the defendant's underwear “matche[d]” the victim's DNA profile. By contrast, the DNA report did state that a DNA sample in the defendant's underwear matched his DNA profile and a DNA sample in the victim's underwear matched her DNA profile.

ii. Misstatements that the defendant's DNA was in the victim's underwear. As to the DNA in the victim's underwear, the prosecutor's handwritten notes state, “sperm fraction -- Δ.” We read this to mean that the prosecutor thought the DNA analysis concluded that the sperm fraction in the victim's underwear was the defendant's. The DNA report states plainly and unequivocally the opposite: “[The defendant] is excluded as a source of the DNA obtained from this sample.”

c. Attorney-client communications. At the outset of the hearing, the defendant filed a motion in limine seeking to limit the scope of plea counsel's testimony to prevent disclosure of attorney-client communication. The judge reserved action on that motion.

The defendant called plea counsel to testify. On cross-examination, the postconviction prosecutor asked about his conversations with the defendant prior to the defendant's guilty plea. The defendant objected. The judge denied the defendant's motion in limine and ordered plea counsel to testify about his confidential conversations with the defendant.¹² Plea counsel testified that the defendant made incriminating statements to him during the course of his representation.

d. The judge's findings. The judge found that it was “unclear from the testimony at the hearing whether [plea counsel] received the [DNA] report” but that the Commonwealth's fax cover sheet “creates a strong inference” that the prosecutor faxed the DNA report to plea counsel on March 6, 2000. The judge also found that there was not “any evidence” that the prosecutor sent “the plea offer letter with incorrect information” to plea counsel. Based on these findings, the judge concluded that the defendant had “failed to meet his burden” to prove that the prosecutor had engaged in egregious misconduct and denied the defendant's motion to withdraw his guilty pleas. The judge did not rely on the defendant's privileged communications with plea counsel. Nor did the judge address the second prong of the so-called Scott-Ferrara test explained below. The defendant appealed.

Discussion. 1. Standard of review. “A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b),” as appearing in 435 Mass. 1501 (2001). Commonwealth v. Cotto, 471 Mass. 97, 105 (2015). “As a general matter, we review a judge's denial of a defendant's motion for a new trial to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Caldwell, 487 Mass. 370, 374 (2021). “[W]e review independently findings made by the motion judge based entirely on documentary evidence.” Id. See Commonwealth v. Gaines, 494 Mass. 525, 536 (2024) (“Because the motion judge was not the trial judge, ․ we consider ourselves in as good a position as the motion judge to assess the trial record” [quotation and citation omitted]). “Further, we make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found” (quotations and citation omitted). Caldwell, supra.

Due process requires that a guilty plea be accepted only where “the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made.” Commonwealth v. Furr, 454 Mass. 101, 106 (2009), citing Boykin v. Alabama, 395 U.S. 238 (1969). “[A] defendant's guilty plea ․ may be vacated as involuntary because of external circumstances or information that later comes to light[,]” including government misconduct. Commonwealth v. Scott, 467 Mass. 336, 345 (2014).

“[W]hen a defendant seeks to vacate a guilty plea as a result of underlying government misconduct ․ the defendant must show ․ that ‘egregiously impermissible conduct ․ by government agents ․ antedated the entry of his plea.’ ” Scott, 467 Mass. at 346, quoting Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006). The defendant must also show that “ ‘the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice.’ ” Scott, 467 Mass. at 346, quoting Ferrara, 456 F.3d at 290. This two-prong test is known as the Scott-Ferrara test.

2. Whether the defendant proved prosecutorial misconduct. The defendant argues that his guilty pleas were involuntarily induced by government misconduct that came to light after his pleas. Specifically, he asserts that the prosecutor failed to disclose the DNA report to plea counsel and made false representations about the Commonwealth's evidence during plea negotiations that were material to his decision to plead guilty.

As noted above, the judge found that “[i]t is unclear from the testimony at the hearing whether [plea counsel] received the [DNA] report, as he had no recollection to that effect,” but the Commonwealth's fax cover sheet created a “strong inference that the report was faxed to [defense counsel] on March 6, 2000.” This finding is supported by the record, but not dispositive of whether the prosecutor engaged in egregious misconduct or misstated the DNA report or whether disclosure of the DNA report cured any prejudice.

a. The DNA report. As noted above, the Commonwealth introduced a “FAX LEAD SHEET,” dated March 6, 2000, from the office of the district attorney, and the five-page DNA report. The existence of the fax cover sheet supports the judge's conclusion that there was a “strong inference” that the prosecutor faxed the DNA report to plea counsel on March 6, 2000.

b. The plea offer letter. To begin with, even if the prosecutor did not fax the plea offer letter to plea counsel, the undisputed record evidence established that the prosecutor relayed her misreading of the DNA results to plea counsel in a conversation on February 29, 2000. The judge's finding that the plea offer letter was not sent, therefore, was not a proper basis on which to deny the motion.

Specifically, on February 29, 2000, the prosecutor misstated the strength of the Commonwealth's case. In one page of her “CASE PROGRESS REPORT,” the prosecutor documented that on February 29, 2000, she spoke with a Cellmark DNA Analyst about the DNA testing results in this case. She wrote that the victim “cannot be excluded” from the “non-sperm” DNA sample found in the defendant's “blue underpants,” but immediately below that wrote that the secondary source of DNA in the defendant's underwear was, in fact, the victim. She also wrote that the defendant was a match for the sperm fraction of the DNA in the victim's underwear, which he was not. In a second page of her case progress report, the prosecutor documented that on the same date, February 29, 2000, she “told [plea counsel] the results of DNA.”

A week later, in the March 6, 2000 letter the prosecutor wrote, “As you are aware, Cellmark Diagnostics has assigned a statistical value to the probability that [the victim] was the source of the DNA [found on your client's underwear]. The statistical probability that the DNA belongs to [the victim] is incredibly high.” Whether she sent the letter or not, the phrase, “As you are aware,” could further support the prosecutor's February 29, 2000, case progress note that she “told [plea counsel] the results of DNA” on that date, before she wrote to him. Moreover, the remainder of the quoted sentence documents that the prosecutor erroneously claimed in the February 29 conversation that Cellmark had calculated the probability that the female DNA found on the defendant's underwear was left by someone other than the victim and determined that the likelihood that it was left by the victim was “incredibly high.” In fact, the DNA report showed that Cellmark had not performed that statistical calculation.

It is well-settled that evidence that a person “could not be excluded as a potential source” of DNA evidence is not admissible without population statistics stating the likelihood of a match. See Commonwealth v. Mattei, 455 Mass. 840, 847-853 (2010). Assuming Cellmark could have calculated such statistics, it did not.

We also conclude based on our independent review of the documentary evidence that the March 6, 2000 plea offer was sent to defense counsel. See Caldwell, 487 Mass. at 374 (“[W]e review independently findings made by the motion judge based entirely on documentary evidence”). See also Gaines, 494 Mass. at 536 (“Because the motion judge was not the trial judge, . . we consider ourselves in as good a position as the motion judge to assess the trial record” [quotation and citation omitted]). The judge's finding to the contrary was clearly erroneous.

Based on the fact that the plea offer letter had a wet signature and no corresponding fax cover sheet, the judge found that there was not “any evidence” that the prosecutor had sent it to plea counsel. She concluded “the more natural inference would be that the letter was a draft that never left the Commonwealth's file.” The finding that there was no evidence the letter had been sent was based on an unreasonable inference and is clearly erroneous.

First, if the prosecutor faxed a letter to plea counsel, the letter retained for the files would have a “wet” or original signature. Given the short time frame for the defendant to accept the pleas, the more natural inference is that the prosecutor faxed the letter and did not mail it. The judge found that on March 6, 2000, which was the date of the plea offer letter, the prosecutor had faxed the DNA report to plea counsel, establishing that she knew plea counsel's fax number and sent him discovery by fax. This inference is reinforced by the short timeframe the prosecutor set for the defendant to accept the plea offer. Given that the plea offer letter was dated March 6, 2000, and the plea offer originally expired the following day, on March 7, 2000, the prosecutor would have had to fax the plea offer letter to plea counsel to ensure that he received it before then.¹³ Second, the fact that the prosecutor made a handwritten notation on the plea offer letter documenting her March 7, 2000 conversation with plea counsel, in which he accepted the plea offer, supports an inference that she referenced that document during the conversation and that it was an accurate record in the case. Finally, a file should be presumed to document what actually occurred. If a signed letter was not sent there should have been a notation so indicating on the letter or the letter should not have been retained.

For all of these reasons, we conclude that the judge's finding that “there [is not] any evidence” that the prosecutor sent her March 6, 2000, “plea offer letter with incorrect information” to plea counsel was clearly erroneous. Because the judge based her ultimate finding that “the defendant has failed to meet his burden” to prove egregious government misconduct on the finding that there was no evidence the misinformation was transmitted, and “a strong inference” that the prosecutor sent the DNA report to plea counsel, we vacate the denial of the defendant's motion to withdraw his guilty plea and remand this case for further proceedings, including, if the judge considers it necessary, a further evidentiary hearing. We express no opinion about whether the defendant has met his burden to prove egregious government misconduct, or, if so, whether it was material to his decision to plead guilty.

4. The defendant's privileged statements to his attorney. As noted above, the judge denied the defendant's motion in limine to exclude his privileged attorney-client communications. The defendant challenges this ruling on appeal. The judge did not rely on the defendant's privileged communication to support her finding that the defendant had failed to meet his burden to prove that the prosecutor engaged in egregious misconduct. Accordingly, we do not address this issue further.

Conclusion. The order denying the defendant's motion to withdraw guilty pleas and for a new trial is vacated and the case is remanded to the Superior Court for further proceedings consistent with this decision.

So ordered.

FOOTNOTES

2.   A pseudonym.

3.   Another witness could have testified that she called the victim during the attack, and the victim answered the telephone. That witness heard the assailant say that he wanted the victim to “suck his dick.” The victim told that witness that the assailant was wearing a camouflage jacket and blue jeans and was leaving the building. While the witness was still on the telephone with the victim, the witness saw a man dressed the same way enter another building in the complex.

4.   For an explanation of population statistics and their relevance to forensic applications, see Commonwealth v. Mattei, 455 Mass. 840, 847-853 (2010).

5.   We are troubled by the fact that the district attorney's office sought an affidavit from plea counsel in support of its case and undermining the case of his former client after plea counsel was hired as a prosecutor by that office. This circumstance raises troubling ethical issues, implicating both the duty of confidentiality and a potential conflict of interest. See Mass. R. Prof. C. 1.6(a), as amended, 493 Mass. 1309 (2024) (confidentiality of information); Mass. R. Prof. C. 1.9(a), as amended, 490 Mass. 1305 (2022) (duties to former clients). Because our decision does not turn on these issues, we do not address them further.

6.   The judge noted that the defendant's guilty pleas occurred twenty-four years before the defendant filed his new trial motion.

7.   There is nothing in the record showing that a DNA test was ever done by or included in any report of the State police crime laboratory.

8.   As discussed below, the prosecutor documented a conversation with plea counsel on February 29, 2000, in which she made a plea offer that would expire on March 7, 2000.

9.   Neither party called the prosecutor to testify. The postconviction prosecutor submitted an affidavit representing that he “attempted to reach [the prosecutor] at her last known place of employment, the Northwestern District Attorney's Office. [He] was informed that she has retired from the practice of law.” He “sent a letter to an address [he] believe[s] to [be] associated with [the prosecutor] seeking any information concerning the case.” She never replied. The parties never discussed locating or calling her.

10.   The author of the DNA report was Kimberly G. Duncan, M.S., a Cellmark Staff DNA Analyst.

11.   As noted above, the DNA report showed that the defendant was excluded as a source of the DNA obtained from this sample.

12.   The judge adjourned the hearing to allow the defendant to pursue an interlocutory appeal of this ruling. A single justice of Supreme Judicial Court denied the appeal and remanded the matter to the Superior Court to resume the evidentiary hearing.

13.   Though the March 6, 2000 plea offer letter afforded the defendant a little more time, it required defense counsel to respond within four days, by March 10, or complete the plea within ten days, by March 16, 2000. That short time frame also supports an inference that the prosecutor faxed the letter.