Opinion
14-P-771
05-04-2015
COMMONWEALTH v. MICHAEL A. BOCCHINO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this pro se appeal, the defendant claims it was error for the judge not to allow his motion pursuant to G. L. c. 278A, § 3(b), seeking forensic or scientific analysis, including deoxyribonucleic acid (DNA) analysis, of a baseball hat worn by the defendant during the commission of the armed assault with intent to rob. For the reasons that follow, we conclude that the defendant has not met his preliminary burden under G. L. c. 278A, § 3(b). Accordingly, we affirm.
1. Background. After several years of appeals to this court and the Supreme Judicial Court, and the Commonwealth's decision to nol pros a number of the defendant's convictions pursuant to the decisions of the appellate courts, the defendant remains convicted of four counts of armed assault with the intent to rob and possession of ammunition without an FID card. See the memorandum and order pursuant to our rule 1:28, Commonwealth v. Bocchino, 78 Mass. App. Ct. 1101 (2010) (Bocchino II).
For a complete recitation of the facts underlying the defendant's convictions, see our prior unpublished memorandum and order pursuant to our rule 1:28, Commonwealth v. Bocchino, 74 Mass. App. Ct. 1113 (2009) (Bocchino I), revised by Bocchino II.
Starting in March, 2014, the defendant sought to obtain DNA testing of a baseball hat recovered from the scene and identified as the one he was wearing in the CVS where the robbery occurred. To that effect, on March 6, 2014, the defendant filed his first motion pursuant to G. L. c. 278A, § 3 (§ 3 motion), seeking DNA testing of the baseball hat. A Superior Court judge (who was also the trial judge) denied the motion. About a month later, on April 3, 2014, the defendant filed a motion for reconsideration. The same judge denied the motion for reconsideration, noting that, "[a]fter reviewing [Commonwealth v.] Wade, [467 Mass. 496 (2014),] this court denies the defendant's motion for reconsideration."
The defendant appears to have also filed a second, independent § 3 motion and affidavit on this date.
Undeterred, fourteen days later, on April 17, 2014, the defendant filed yet another § 3 motion pursuant to G. L. c. 278A, seeking again forensic or scientific analysis of the aforementioned baseball hat. In an order entered on April 18, 2014, the judge denied the defendant's motion on the grounds that the motion was "duplicative of several motions filed, reviewed and denied by this court." The defendant appeals.
The defendant makes no argument in his brief concerning his appeal from the judge's April 18, 2014, order allowing the Commonwealth's motion requiring him to serve it with all papers he files in court. Accordingly, we do not consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
2. Discussion. "The determination whether a motion for scientific testing meets the requirements of G. L. c. 278A, § 3, the initial stage of a two-part process, is a 'limited, threshold inquiry.'" Commonwealth v. Donald, 468 Mass. 37, 41 (2014), quoting from Commonwealth v. Wade, 467 Mass. at 505. "In order to proceed to the second stage of that process, an evidentiary hearing, a moving party is required to provide information demonstrating that he or she meets the requirements of G. L. c. 278A, § 3(b), and to submit an affidavit as required by G. L. c. 278A, § 3(d)." Donald, supra. Here, the defendant's motion failed to meet these standards.
As an initial defect, we are dubious about whether the defendant's motion fully complies with the parameters of G. L. c. 278A, § 3(b)(1), which requires that a moving party include "the name and a description of the requested forensic or scientific analysis." G. L. c. 278A, § 3(b)(1), inserted by St. 2012, c. 38. Even bypassing this defect, "it is necessary to consider only whether the test results could be material to the question of the identity of the person who committed the criminal act of which the moving party was convicted." Wade, supra at 508. The evidence at trial was largely that of eyewitness identification. As set forth in our prior unpublished memorandum and order pursuant to our rule 1:28, Bocchino I, the defendant's convictions were based largely on the testimony of percipient witnesses. Specifically, after a customer in the store pointed out the defendant to nearby police officers, the officers pursued the defendant, by motorcycle and on foot, losing sight of him, if at all, for only moments, before tackling him to the ground. Further, the defendant's appearance was consistent with descriptions provided by several store employees. And, "[a] videotape of the incident . . . [was] entered in evidence." Bocchino I, supra.
The information provided by the defendant in this section is confused. Instead of identifying the test he sought, as specified by the clear language of the statute, the defendant's motion states, "State Police Laboratory in Sudbury, Massachusetts, by agreement."
The defendant has provided virtually no information indicating why or how DNA test results are material to the question of identification. See Donald, 468 Mass. at 48 (moving party "must do more than merely recite the elements"). In sum, the defendant's motion, "which states only that it satisfies the requirements of that section and provides no information to support this bare contention, fails to do so." Ibid.
Accordingly, the postjudgment orders entered April 18, 2014, are affirmed.
So ordered.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 4, 2015.