Opinion
15-P-1716
06-09-2017
COMMONWEALTH v. Marcos SOSTRE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from orders denying his renewed motion for postconviction access to forensic and scientific analysis and his motions for an order of contempt and to report questions of law. For the reasons set forth below, we affirm.
1. Background. In 2006 the defendant was convicted by a Superior Court jury of armed and masked robbery and a number of related offenses. Nine years later, in an attempt to test two articles of clothing for deoxyribonucleic acid (DNA), the defendant filed a motion for postconviction access to forensic and scientific analysis pursuant to G. L. c. 278A, § 3. The motion was denied without prejudice.
The motion judge concluded that the defendant's motion was deficient as it did not meet the threshold requirements identified in the statute.
While litigating the § 3 motion, the Commonwealth revealed that the requested evidence was destroyed in December of 2012 by the Pittsfield police department. The evidence was destroyed after the defendant's direct appeal concluded, affirming the convictions. See Commonwealth v. Figueroa, 72 Mass. App. Ct. 1102 (2008). After his initial G. L. c. 278A, § 3, motion was denied, the defendant filed (1) a renewed G. L. c. 278A, § 3, motion, in which he sought testing of multiple items; (2) a motion for an order of contempt pursuant to G. L. c. 278A, § 17(b ), claiming that he was entitled to relief for the Commonwealth's destruction of evidence; and (3) a motion to report question of law pursuant to Mass.R.Crim.P.34, as amended, 442 Mass. 1501 (2004), asserting that his § 17 motion required statutory interpretation from the appellate courts. The judge denied the motions.
The Commonwealth filed a motion in the Superior Court in 2008 for return of the exhibits. In November, 2009, the trial exhibits were released to the Pittsfield police department, following the conclusion of the appellate process.
The Supreme Judicial Court had denied his application for further appellate review.
2. General Laws c. 278A, § 3, motion. The defendant argues that the judge erred in denying his renewed G. L. c. 278A, § 3, motion. We consider de novo whether the defendant's motion and affidavits meet the requirements of the statute. Commonwealth v. Wade, 467 Mass. 496, 506 (2014). In order to prevail on the motion the defendant must establish that a "reasonably effective attorney" would have sought the additional DNA analysis at the time of trial. See G. L. c. 278A, § 3(b )(5)(iv) ; Commonwealth v. Wade, 475 Mass. 54, 63 (2016) (reiterating that "act's inquiry ... is an objective one").
The defendant contends that a reasonably effective attorney would have requested DNA testing of the additional physical evidence in order to definitively exclude him as a potential contributor to the DNA profile. As the motion judge noted, and the defendant acknowledges on appeal, the two items for which testing was sought in the first motion were not relevant. His renewed motion requested testing of eleven additional items, including clothing and a firearm that Commonwealth witnesses testified the robber was using during the crime, and a bag used during the robbery to carry the stolen money. The defendant claimed that DNA testing also would have excluded him and that "[a]dditional exclusionary results would certainly have helped tip the scales" in his case, which he defended on the basis of identification.
Prior to trial, two pieces of evidence were tested for the defendant's DNA, a ski mask and a scarf. The major DNA profile excluded him as a contributor as to both items. With respect to the scarf, the results were inconclusive as to the minor contributor profile. Thus, the DNA evidence was helpful to the defendant. Applying an objective standard, see Wade, 467 Mass. at 511-512, it is an uphill climb to say that a reasonable attorney would have sought testing of the additional items. The existing testing excluded the defendant as a major contributor and did not point to him as a minor contributor. His defense at trial was misidentification. Had the additional testing inculpated him, he would have been left without a defense. Compare id. at 510 (reasonable attorney would have tested items in rape case where defense was consent and adverse result would not have deprived defendant of defense). In any event, the evidence no longer exists, and for the reasons that follow, we are not persuaded that the defendant has established that the Commonwealth was in contempt.
With respect to the minor profile, the defendant could not be included as a donor on the scarf because of the number of contributors. The judge described the evidence as inconclusive.
3. Contempt. The defendant contends that the judge erred in denying his motion for an order of contempt because the Commonwealth was required to retain the evidence that resulted in his conviction for the period of time that he is in custody. See G. L. c. 278A, § 16(a ).
Passing on the question whether the defendant's contempt motion is barred by his failure to show that he met the requirements of G. L. c. 278A, § 3, there was no evidence of "willful or wanton misconduct or gross negligence." G. L. c. 278A, § 17(b ). At the time the evidence was destroyed, the defendant had already unsuccessfully appealed his conviction. The Commonwealth moved to return the evidence to the Pittsfield police department in 2008. The evidence was returned in 2009 and destroyed in 2012, some three years after the last appeal concluded. The evidence should not have been destroyed, but the fact that it was does not establish that the destruction was due to gross negligence. The defendant did not provide a factual basis for a finding of contempt, because he did not demonstrate the existence of "willful or wanton misconduct or gross negligence."
The Commonwealth maintains that the defendant is not entitled to the statutory protections against "willful or wanton misconduct or gross negligence," G. L. c. 278A, § 17(b ), because he has not passed the initial threshold requirements of G. L. c. 278A, § 3(b )(5)(iv). Relying on the plain language of the statute, the motion judge concluded that contempt remedies are available under G. L. c. 278A, § 17(b ), only in those cases where the moving party has established an entitlement to further laboratory testing under § 3.
4. Motion to report questions of law. The defendant argues that the judge erred by denying his motion to report questions pursuant to Mass.R.Crim.P.34. "Reported questions are appropriate for appellate court review only where ... ‘it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing.’ " Commonwealth v. Gopaul, 86 Mass. App. Ct. 685, 686 (2014), quoting from Commonwealth v. Henry's Drywall Co., 362 Mass. 552, 557 (1972). Here, given the state of the record, the questions the defendant proposes are not appropriate for appellate review. The judge did not abuse his discretion in denying the motion. See Commonwealth v. Eagleton, 402 Mass. 199, 208 (1988).
Orders denying renewed motion for postconviction access to forensic and scientific analysis, and motions for order of contempt and to report questions of law, affirmed.