Opinion
19-P-1696
12-22-2020
COMMONWEALTH v. ANTHONY J. DEW.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from a Superior Court judge's order denying his motion for postconviction forensic testing under G. L. c. 278A. On appeal, the defendant also argues, for the first time, that the judge should have recused herself from his case. To whatever extent it is properly before us, we reject the recusal argument, and we affirm the order denying testing.
Background. The background of the underlying case is fully set forth in the decision affirming the denial of the defendant's motion for a new trial and need not be repeated here. See Commonwealth v. Dew, 95 Mass. App. Ct. 1116 (2019). It suffices to say that the defendant pleaded guilty in 2016 to multiple charges, including five counts of trafficking of a person for sexual servitude and nine counts of distribution of a controlled substance. His motion for a new trial (which in effect was a motion to withdraw his guilty pleas) asserted that a police officer, in an affidavit in support of an application for a search warrant for the defendant's apartment, falsely stated that a confidential informant, "Jet" (a pseudonym), had made three controlled buys of narcotics from the defendant. The warrant was issued, and the evidence obtained through the execution of the warrant led to charges to which he ultimately pleaded guilty. The defendant's motion for a new trial sought, among other things, a Franks hearing to determine whether the officer had lied. See Franks v. Delaware, 438 U.S. 154, 155-156 (1978); Commonwealth v. Amral, 407 Mass. 511, 520 (1990). The motion judge's decision to deny the requested hearing, along with the remainder of her decision to deny the motion for a new trial, was upheld on appeal.
The defendant then filed a motion under G. L. c. 278A, seeking deoxyribonucleic acid (DNA) testing of the three bags of controlled substances that he allegedly had sold to Jet. The search warrant affidavit asserted that the three sales occurred within a period of thirty days prior to the affidavit's date of January 13, 2015. The defendant's motion apparently sought to establish that the three sales never occurred, or that, if they did, he was not the seller. The Commonwealth filed an opposition, asserting among other things that the motion failed to demonstrate, as the statute requires, that the requested DNA analysis "ha[d] 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, § 3 (b) (4). The judge denied the motion, without a hearing, for the reasons stated in the Commonwealth's opposition, and this appeal followed.
The defendant's motion and accompanying affidavit refer to the alleged controlled buys as having occurred between December 6, 2014, and January 13, 2015.
This requirement may also be satisfied by demonstrating that the requested test has the potential to result in evidence that no crime occurred. See Commonwealth v. Williams, 481 Mass. 799, 809 (2019).
Discussion. 1. General Laws c. 278A testing. The denial of the G. L. c. 278A motion here raises a pure question of law, which we review without deference to the motion judge. See Commonwealth v. Moffat, 478 Mass. 292, 298 (2017) ("In appeals from a denial of a G. L. c. 278A, § 3, motion, de novo review is appropriate"). We conclude that c. 278A itself required the denial of the motion. The statute provides that a court "shall dismiss, without prejudice, any such motion without a hearing if the court determines, based on the information contained in the motion, that the motion does not meet the requirements set forth in this section" (emphasis added). G. L. c. 278A, § 3 (e).
Although the statute refers to the "dismiss[al]" of a G. L. c. 278A motion, we refer instead, for clarity, to the denial of such a motion.
Here, the defendant's motion did not demonstrate, as the statute requires, the potential to yield evidence material to whether the defendant was "the perpetrator of [any of] the crime[s] in the underlying case." G. L. c. 278A, § 3 (b) (4). At most, the requested DNA testing could have shown that the controlled buys had never occurred, or that, if they had, the defendant was not the seller. But the underlying case did not include any charge that the defendant had distributed controlled substances to Jet during the controlled buys. Instead, the distribution charges to which the defendant pleaded guilty involved seven individuals who were named at the change of plea hearing. Even if the defendant could establish that he was never involved in any of the alleged controlled buys, and even if that information were, hypothetically, to lead to a judicial decision that the search warrant was invalid, such a decision would still not be material to whether the defendant, as a factual matter, had distributed controlled substances to any of the named victims or was the perpetrator of any of the other crimes to which he pleaded guilty.
We express no view on whether the requested testing had any prospect of yielding any such evidence.
The purpose of G. L. c. 278A is "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" (citation omitted). Commonwealth v. Wade, 467 Mass. 496, 501 (2014), S.C., 475 Mass. 54 (2016). Even if the defendant could, hypothetically, show the invalidity of the search warrant, and thus call into question what evidence would have been legally admissible against him had he gone to trial, that would in no way show that the defendant was factually innocent of the crimes to which he pleaded guilty. Accordingly, G. L. c. 278A, § 3 (e), required that the defendant's motion be denied.
The defendant further argues that any denial of his motion could only be ordered after a hearing and the issuance of findings of fact and conclusions of law, pursuant to G. L. c. 278A, § 7 (a), and was required to be without prejudice. The answer to both contentions is that the statute expressly provides for the denial "without prejudice [of] any such [c. 278A] motion without a hearing" if "the motion does not meet the requirements set forth in this section." G. L. c. 278A, § 3 (e). Thus, no hearing was required, and the denial of the motion was, by operation of the statute, without prejudice, even though the judge's order did not include those two words.
2. Recusal. The defendant argues that the motion judge -- who also accepted his guilty pleas, sentenced him, and denied his motion for a new trial and other postplea motions -- should have recused herself. He asserts that because the judge was one of fourteen directors of the International Association of LGBTQ+ Judges, and because at least one of the victims of the underlying crimes was transgender, the judge was unable to maintain her objectivity in this case. We reject the notion that a judge's membership in a minority group, or her involvement in a professional organization for members of such a group, gives rise to any inference of bias merely because a potential witness in a case may also be a member of the group. See Supreme Judicial Court Rule 3:09, Canon 2, Rule 2.11 (2016). Cf. Commonwealth v. Deconinck, 480 Mass. 254, 268 (2018) (judge's ruling in prior case finding counsel in contempt not grounds for recusal sua sponte).
That said, the defendant failed to move for the judge to recuse herself at any time during the life of his case. Moreover, the only order before us for review is the judge's order denying the defendant's G. L. c. 278A motion; we have no jurisdiction to review any of the judge's earlier orders. To the limited extent that any recusal issue is properly before us, we conclude that any decision by the judge not to recuse herself sua sponte from ruling on the c. 278A motion provides no basis for relief from the denial of that motion. Cf. In re Moore, 449 Mass. 1009, 1010 n.1 (2007) (summarily rejecting recusal claim raised for first time on appeal); Commonwealth v. Armand, 411 Mass. 167, 175-176 (1991) (same). Even if we assume, purely for the sake of argument, that the judge should have recused herself, we have determined de novo, as a matter of law, that the c. 278A motion was required to be denied. Put differently, any hypothetical error in the judge's decision not to recuse herself sua sponte did not create any substantial risk of a miscarriage of justice, because the c. 278A motion would have been denied in any event.
Conclusion. The order denying the defendant's motion for G. L. c. 278A forensic testing is affirmed.
So ordered.
By the Court (Massing, Sacks & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 22, 2020.