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08-P-986 Appeals Court

13-P-1363

COMMONWEALTH vs. DAVID COUTU.

Nos. 08-P-986 & 13-P-1363.

Middlesex. September 17, 2015. - December 8, 2015.

Present: Katzmann, Meade, & Rubin, JJ.

Assault and Battery by Means of a Dangerous Weapon. Burning of 

Property. Attempt. Evidence, Identification, Scientific 

test. Practice, Criminal, Failure to object, 

Identification of defendant in courtroom, Argument by 

prosecutor, Instructions to jury, New trial, Assistance of 

counsel, Collateral estoppel, Postconviction relief. 

Collateral Estoppel. Deoxyribonucleic Acid.

Indictments found and returned in the Superior Court 

Department on March 23 and August 15, 2006.

The cases were tried before S. Jane Haggerty, J., and 

motions for a new trial, for postconviction discovery, and for 

reconsideration, filed on April 26, 2012, June 7, 2012, and June 

23, 2014, respectively, were heard by her.

Amy M. Belger for the defendant.

Randall F. Maas & Bethany Stevens, Assistant District 

Attorneys, for the Commonwealth.
2

MEADE, J. After a jury trial in 2007, the defendant was 

convicted of aggravated rape, home invasion, mayhem, assault and 

battery by means of a dangerous weapon causing serious bodily 

injury, armed robbery, kidnapping, and attempt to burn personal 

property. The events leading to these convictions occurred in 

2006, when the defendant, a stranger to the victim, broke into 

her apartment by tunneling through the wall with a crowbar, and 

then beat and raped the victim with the crowbar before burning a 

box of items. 

On appeal, the defendant claims the judge improperly 

permitted the victim to testify that she recognized the 

defendant by his "energy," the prosecutor's closing argument was 

improper, the judge erred in her jury instruction on 

identification, the evidence was insufficient to support the 

attempt to burn personal property conviction, the convictions of

assault and battery by means of a dangerous weapon causing 

serious bodily injury and mayhem were duplicative, and the judge 

abused her discretion by denying the defendant's second motion 

for new trial based on a claim of ineffective assistance and 

newly discovered evidence. We reverse the convictions of

assault and battery by means of a dangerous weapon causing 

serious bodily injury and of attempt to burn personal property,

affirm the remaining judgments of conviction, and remand the 
3

case for resentencing. We affirm the order denying the second 

motion for new trial. 

In a separate appeal, the Commonwealth claims error in the 

judge's order permitting postconviction DNA testing under G. L. 

c. 278A. The Commonwealth claims that the judge misapplied the 

statute and failed to consider the strength of the 

Commonwealth's case, and that the defendant did not meet all the 

statutory criteria. We affirm the judge's order.

1. Background. a. Emergency response. In the early 

morning hours of March 9, 2006, Ayer police and fire personnel 

responded to the victim's apartment. The apartment was full of 

smoke, which emanated from an object smoldering in the bathtub 

that the fire fighters extinguished. The fire fighters found 

the victim wrapped in a blanket and curled in the fetal position 

on the floor near the bathroom. She had a head laceration that 

was bleeding profusely, bruises on her face, and a stab wound 

below her left eye. There was a large amount of blood on the 

bed. The victim was conscious, but in shock and crying. She 

told those present that "[a] man came through the wall and raped 

me." The victim was taken to the Nashoba Valley Medical Center 

and later airlifted to Beth Israel Deaconess Medical Center 

(BIDMC) in Boston.

b. The attack. The victim lived alone in the apartment. 

She worked as a "spirit medium" and assisted living people with 
4

connection "to deceased loved ones." She also offered 

"spiritual counseling" and provided advice to those with 

problems. Her advice at times involved "divine guidance," which 

meant advice from "God's angels, spirit guides, [and] masters 

like Jesus and Buddha."

During the early morning hours on the day of the attack, 

the victim awoke to noises "coming through the wall." When the 

noises got closer, she got up and saw a man, later identified as 

the defendant, kneeling and opening drawers in a chest. The 

victim screamed and was "frozen in fear." She retrieved a 

crowbar she found on the floor, which she described as a 

"yellowy metal rusty thing," and attempted to defend herself. 

The defendant grabbed her hair, but the victim was unable to 

bring herself to hit him with the crowbar and instead pushed it 

under a nearby chest of drawers. The defendant threatened to 

hit her if she looked at him, and he asked the victim for money. 

As he continued to hold her hair, the victim crawled to her 

wallet and gave him forty-four dollars in cash. The defendant 

kept asking the victim if she had a boy friend; she did not 

respond. 

Holding both of the victim's wrists with one hand, the 

defendant told her to take off her clothes. She said, "No, just 

let me go." She "was so frozen in fear, [she] didn't know what 

to do." The defendant took off his clothes and hers. He forced 
5

her to "suck on his penis" and he threatened to hit her if she 

looked at him. He "sucked . . . on [her] vagina" and told her 

she was "beautiful." The defendant tied her legs to the 

bedposts with shredded pieces of her clothing and vaginally 

raped her with his penis. When the victim struggled to free 

herself, the defendant got off her and began to get dressed. He

then covered her mouth and nose with his hand, which prevented 

her from breathing. She attempted to "peel his fingers off," 

but soon lost consciousness. The last thing she remembered was 

seeing the defendant raise the yellow crowbar over her and 

striking her on her head (more than once) and she "was 

completely out." The defendant beat and raped the victim with 

the crowbar.

When the victim regained consciousness, she saw a pool of 

blood next to her and she smelled smoke. The smoke was coming 

from a box the defendant had stuck in a hole in the wall. She 

dragged the flaming box into the bathtub and retrieved a fire 

extinguisher from the kitchen. After reading the instructions, 

she was able to use it to extinguish the fire. At some point, 

the victim's landlady came to the door and had her son telephone

for an ambulance.

c. The victim's injuries. The extent of the victim's 

injuries were as extreme as they were extraordinary. The wounds 

to her head and face were so severe that she required plastic 
6

surgery. Her perineum, i.e., her vagina and rectal areas, were 

"completely macerated"; the usually thick band of tissue between 

the vaginal canal and rectum was completely torn away. Her 

"normal anatomy could not be identified." Dr. Christopher 

Awetry, the victim's treating obstetrics and gynecological 

physician at BIDMC, opined that the victim's injuries were not

caused by a knife, but instead by "an object that had tearing 

capabilities, but also with a blunt side." With a reasonable 

degree of medical certainty, Dr. Awetry opined that the victim's 

injuries were consistent with having been inflicted by a 

crowbar.

Part of the victim's treatment as a sexual assault victim 

was the administration of an AIDS preventative medication. 

However, the victim was allergic to the medication and developed 

a dermatological manifestation referred to as Stevens Johnson 

syndrome, which resulted in a chemical burn with swelling and 

blistering over ninety-eight percent of her body. These 

additional injuries were extremely painful and required her 

admission to the burn unit at Brigham and Women's Hospital.

d. The hole in the wall. The defendant gained entry to 

her apartment (no. 6) through a hole in the wall from a vacant,

adjacent apartment (no. 7). The former tenants of apartment no. 

7 had moved out, but some furniture remained in the apartment. 

The hole had been opened in the drywall between two studs. Paul 
7

Zambella, a forensic scientist at the Massachusetts State police 

crime laboratory, measured the hole and found it to be 

approximately twelve and one-half inches wide by approximately 

twenty-one inches in length.

Daniel Freedman, the landlady's son and the building's 

maintenance man, was able to fit himself through the hole

between the two apartments. Freedman was approximately five 

feet, eight inches tall and weighed 185 pounds. Detective Brian 

Gill, the lead investigator, made a cardboard replica of the 

hole with dimensions of twelve by eighteen inches based on his 

measurements. Gill, who was five feet, eight inches tall and 

weighed 230 pounds, was able to fit through the replica of the 

hole. In April of 2006, the defendant was six feet tall and 

weighed 190 pounds. By the time of trial in the summer of 2007, 

the defendant appeared to have gained weight.

e. Identifying the defendant as the assailant. Eleanor 

Lamb, the defendant's sister, lived across the street from the 

defendant on West Street in Ayer in March of 2006. On the night 

of March 8, 2006, some hours before the victim's attack in the 

early morning of March 9, Lamb was drinking and socializing in 

her apartment with Nicole Minkle, James Daniels, and Christopher 

Hird. The defendant was present and drinking as well. He left 

at approximately 10:30 P.M., but returned thirty minutes later. 

When he returned, he told them the he had discovered a vacant 
8

apartment with furniture left behind. The defendant asked if 

anyone wanted any of the furniture; all declined, except Lamb. 

At approximately midnight, the defendant and Lamb left her 

apartment and walked for about two minutes before reaching the 

apartment building. They entered with a key the defendant found 

after he broke into the apartment through a window earlier in 

the evening. Lamb took a big role of bubble wrap, the defendant 

took a trash bag full of various items, and they both returned 

to Lamb's apartment.

Upon their return, the defendant asked to borrow Lamb's 

blue flashlight and a yellow crowbar that had previously

belonged to Lamb's former boy friend. Hird also saw the 

defendant holding the yellow crowbar. On his way out the door, 

the defendant stopped and poked his head back in and said, 

"Don't worry, it's not like I'm going to hurt -- or kill 

anybody." He was dressed in blue jeans, a flannel shirt, and a 

dark-colored jacket. Lamb never saw the crowbar again after 

lending it to the defendant, but she did find the flashlight in 

her mailbox the next day.

The next morning, Lamb saw on the television news the 

apartment building she and the defendant had been in the 

previous evening. That evening, Lamb reported to the police 

that the defendant had been in the building with her the night 
9

before the attack.1 She showed the police the route they took to 

the building and the door they entered.

After obtaining a search warrant for the defendant's 

apartment, the police found a yellow crowbar under his bed. 

After obtaining a second search warrant for the basement area of 

the defendant's apartment building, the police found a darkcolored jacket with chalky residue on it. They also found a 

pair of blue jeans with white fragments and pieces of "wallboard 

or plaster" in the left rear pocket. That same day, the police 

also recovered, from the area of the hole between apartments no. 

6 and no. 7, a piece of wallboard debris with yellow-colored 

material on its surface. 

f. Forensic evidence. Both the yellow crowbar and the 

blue jeans had human blood on them. The blood on the blue jeans 

had a deoxyribonucleic acid (DNA) profile of at least two 

individuals. The major female profile matched the victim, and 

the defendant was included as a potential contributor of the 

minor profile based on a probability of one in 41,000 for a 

randomly selected unrelated individual in the Caucasian 

population. The yellow crowbar, which the police seized from 

under the defendant's bed, also had a DNA mixture of at least 

 

1 Lamb admitted that she initially lied to the police about 

being in the building herself, but then admitted accompanying 

the defendant inside.
10

two individuals; the defendant was excluded as a contributor,

but the victim matched the major female profile.

A forensic review of the evidence revealed that the "two 

types of yellow paint found on the wallboard [between apartments 

no. 6 and no. 7] were consistent in color, microscopic 

appearance in spectrophotometric properties with the two shades 

of yellow paint on the [crowbar]." Also, the wallboard between 

the apartments was consistent in "color, microscopic appearance, 

and instrumental properties" with the pieces of wallboard found 

in the back pocket of the blue jeans found the basement of the 

defendant's apartment building.

g. The photographic array. At the burn unit within 

Brigham and Women's Hospital, Detective Gill showed the victim a 

photographic array. The victim appeared frail, was shaking, and 

cried throughout the interview. When the detective showed her

an array that contained the defendant's photograph, she excluded 

the defendant's photograph as her assailant. When she viewed 

the photograph a second time, she said, "Definitely not this 

one." At trial, the victim explained that she was very 

disoriented from the medications she was on at the time she was 

shown the photographs and, as a result, could not "pinpoint" 

anyone.

The victim described her attacker to the police as

Caucasian with blonde or brown hair. He was wearing pants, but 
11

not blue jeans. She said he was between five feet, six inches

and five feet, nine inches in height, but probably five feet, 

eight inches or five feet, nine inches. She added that he had a 

receding hairline, a medium to small build but with a fat frame,

and "no jaw line, no chin." The victim characterized him as a 

"coward from all angles" with a "cocky attitude." 

2. Discussion. a. Extrasensory recognition. The 

defendant claims that the judge improperly permitted the victim 

to make an in-court identification of the defendant. More 

specifically, the prosecutor asked the victim if she recognized 

her attacker in the court room. The victim testified that she 

might recognize him if he were to stand. With defense counsel's 

express permission, the judge ordered the defendant to stand. 

The judge permitted the victim to leave the witness stand and to 

walk closer to the defendant. As she faced him, she said,

"Yes." When the victim returned to the witness stand, the 

prosecutor asked her what she meant when she said, "Yes." She 

replied, "That is the person. I can recognize his energy 

because of my trade of work." Despite the defendant's repeated 

claim on appeal that he objected to this testimony,2 he made no 

objection and no motion to strike.

 

2 On three occasions in the defendant's brief, appellate 

counsel states that this testimony was admitted over objection. 

These statements are directly contradicted by the transcript. 

Misrepresentation is neither advocacy nor ethical. See 
12

The defendant also claims that the matter was preserved 

based on statements counsel made to the judge during the charge 

conference regarding an identification instruction. During this 

discussion, counsel maintained that recognition by energy is not 

an identification. He did not belatedly object to the admission 

of the victim's testimony. Even if he had objected, it would 

have been untimely. We have a contemporaneous objection rule, 

not a retroactive objection rule. "'Order in the administration 

of criminal justice requires that if a defendant is aggrieved by 

what transpires during his trial,' he must assert a timely 

objection or claim of error." Commonwealth v. Pisa, 384 Mass. 

362, 366 (1981), quoting from Commonwealth v. Stout, 356 Mass. 

237, 243 (1969). See Mass.R.Crim.P. 22, 378 Mass. 892 (1979). 

Because the defendant's claim was not preserved, we review to 

determine whether an error occurred and, if so, whether that 

error created a substantial risk of a miscarriage of justice. 

See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

To determine whether the evidence of the victim's 

recognition of the defendant by his "energy" created a 

substantial risk of a miscarriage of justice, and keeping in 

 

Mass.R.Prof.C. 3.3(a)(1), 426 Mass. 1383 (1998) ("A lawyer shall 

not knowingly . . . make a false statement of material fact or 

law to a tribunal"). After the Commonwealth's brief brought 

these misrepresentations to our attention, appellate counsel 

corrected her misstatements in her reply brief. 
13

mind that "[e]rrors of this magnitude are extraordinary events 

and relief is seldom granted," Commonwealth v. Randolph, 438 

Mass. 290, 297 (2002), we ask four questions: "(1) Was there 

error? (2) Was the defendant prejudiced by the error? (3) 

Considering the error in the context of the entire trial, would 

it be reasonable to conclude that the error materially 

influenced the verdict? (4) May we infer from the record that 

counsel's failure to object or raise a claim of error at an 

earlier date was not a reasonable tactical decision?" 

(Citations omitted.) Id. at 298. "Only if the answer to all 

four questions is 'yes,' may we grant relief." Ibid. See 

Commonwealth v. Russell, 439 Mass. 340, 345 (2003).

The defendant claims that in light of Commonwealth v. 

Crayton, 470 Mass. 228 (2014), and Commonwealth v. Collins, 470 

Mass. 255 (2014), the victim's energy recognition testimony 

requires his conviction be reversed. We disagree. In these 

cases, the Supreme Judicial Court held that "[w]here an 

eyewitness has not participated before trial in an 

identification procedure, we shall treat the in-court 

identification as an in-court showup, and shall admit it in 

evidence only where there is 'good reason' for its admission." 

Commonwealth v. Crayton, supra at 241. The same rule applies 

where the eyewitness has not made an unequivocal positive 

identification of the defendant before trial. See Commonwealth
14

v. Collins, supra at 265. However, even assuming the victim is 

an "eyewitness," the defendant fails to note that when the 

Supreme Judicial Court announced the above rules, it made them 

applicable only to trials that commenced after the issuance of 

those opinions, which occurred in December of 2014. The 

defendant was tried in 2007.

The defendant also claims the energy recognition evidence 

should have been excluded under Daubert v. Merrill Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Commonwealth v. 

Lanigan, 419 Mass. 15 (1994). If those principles applied in 

the circumstances of this case,3 the defendant's argument might 

have had some force had he moved to exclude the evidence on 

these grounds, but he did not. Because this claim is being 

raised for the first time on appeal, it is waived. Newell v. 

Department of Mental Retardation, 446 Mass. 286, 298 n.27

(2006); Driscoll v. Providence Mut. Fire Ins. Co., 69 Mass. App. 

Ct. 341, 342 n.3 (2007). See Commonwealth v. Crouse, 447 Mass. 

558, 570 n.11 (2006) ("To the extent that the defendant's claim 

rests on the judge's failure to assume the role of gatekeeper to 

preclude the introduction of 'junk science' evidence, it is too 

late for the defendant to request a Lanigan hearing").

 

3 The Daubert/Lanigan standard is a mechanism designed to 

test the admissibility of scientific expert opinion, not 

testimony of a lay witness like the victim. See Commonwealth v. 

Lanigan, supra at 25.
15

Although we reject the above claims, the gravamen of the 

defendant's argument is that it was error to permit the victim, 

by employment of her "sixth sense" or through extra sensory 

perception (ESP), to recognize the defendant as her attacker. 

We agree. "In general, a witness bases any identification [she] 

makes on [her] perception through the use of [her] senses. 

Usually the witness identifies an offender by the sense of sight 

-- but this is not necessarily so, and [she] may use other 

senses." Commonwealth v. Franklin, 465 Mass. 895, 910 n.24 

(2013) (quotation omitted). However, when our case law speaks 

of "other senses," it was meant to limit those available for 

identification to the five found in the natural world. Indeed, 

by definition, ESP or a "sixth sense," is beyond the corporeal 

or numerical senses of convention. The evidence of the victim's 

supernatural recognition of the defendant as her attacker should 

not have been permitted.

4

Although we conclude there was error, when we consider the 

error in the context of the entire trial, it would not be 

 

4 At oral argument, appellate counsel likened the victim's 

energy recognition testimony to spectral evidence, which was 

used to convict the defendants at the Salem witch trials. We 

disagree. "Spectral evidence" refers to witness testimony that 

the accused person's spirit or spectral shape appeared to the 

witness. See Hoffer, The Salem Witchcraft Trials, A Legal 

History 78-79 (1997); Starkey, The Devil in Massachusetts 54, 93 

(1949). Here, while the victim's energy recognition testimony 

was improper, it was not generated from an apparitional 

appearance she had of the defendant. 
16

reasonable to conclude that the error materially influenced the 

verdict. See Commonwealth v. Randolph, 438 Mass. at 299-300. 

While the victim did not make a photographic identification, and 

discounted the actual photographs of the defendant, the 

Commonwealth offered compelling evidence that identified the 

defendant as the victim's assailant and rapist.

At trial, the Commonwealth's key witness was the 

defendant's sister, Eleanor Lamb, who was with the defendant on 

the night of the attack. Lamb joined the defendant and stole 

items from the vacant apartment (no.7) adjacent to the victim's 

apartment (no. 6). Lamb was the owner of the yellow crowbar 

that the defendant borrowed on the night of attack. Lamb later 

told the police of the events of the night. Two other 

witnesses, Christopher Hird and Nicole Minkle, corroborated 

Lamb's claim that the defendant told the group that he had found 

the vacant apartment with furniture in it. Hird also saw the 

yellow crowbar in the defendant's hand at Lamb's apartment.

The forensic evidence against the defendant was even more 

compelling. Police found a yellow crowbar matching the 

description given by Lamb and Hird under the defendant's bed. 

Forensic testing of the yellow crowbar revealed the presence of 

the victim's DNA. The paint on the crowbar was consistent with 

yellow marks left on the wallboard surrounding the hole between

the two apartments. There was also evidence that two different 
17

men (Daniel Freedman and Detective Brian Gill) of builds similar 

to that of the defendant were able to fit through the hole (or a 

replica of it) between the apartments.

Also, Lamb testified that on the night of the attack, the 

defendant was dressed in blue jeans, a flannel shirt, and a 

dark-colored jacket. In the defendant's basement, the police 

found blue jeans with wallboard fragments in one of the pockets. 

The blue jeans also had human blood on them. A forensic 

analysis of the blood stain showed that the blood contained a 

mixture of at least two individuals. The victim's DNA profile 

matched the major female contributor, and the defendant was 

included as a potential contributor of the minor profile.

Although the judge's decision on the Commonwealth's motion 

to reconsider the order on the defendant's second motion for new 

trial characterizes the victim's method of recognizing the 

defendant as "extremely powerful," she also determined that the 

other evidence against the defendant, cataloged above, "was very 

powerful, if not overwhelming." Moreover, during the trial, the 

judge indicated that the jury might completely disregard the 

victim's "energy" testimony or simply reject it as ridiculous. 

In any event, our determination whether the error materially 
18

influenced the verdict is not contingent upon how the judge 

viewed the evidence.

5 

Finally, for the same reason that the judge concluded the 

jury may view the energy evidence as ridiculous, we can infer 

that counsel's not objecting to its admission was a tactical 

decision that was not manifestly unreasonable.

6 Indeed, during 

counsel's cross-examination of the victim, he established that 

even though the victim could recognize the defendant's energy 

"imprint," she failed to recognize his photographs and said they

were not her assailant. Counsel could easily have concluded 

that the energy testimony seriously detracted from the victim's 

credibility, and he chose to leave it unchallenged and instead 

focused on her inability to make a photographic identification. 

Because we do not answer all four of the Randolph inquires in 

the affirmative, the defendant has failed to establish that the 

error created a substantial risk that justice miscarried. See 

Commonwealth v. Randolph, 438 Mass. at 298. See also

Commonwealth v. Dresser, 71 Mass. App. Ct. 454, 458 n.10 (2008) 

 

5 For this same reason, there was no over-all effect to the 

judge's mistaken finding that the defendant was the only tenant 

who had access to the area where the blue jeans were found.

6 The defendant admits this in his reply brief, where he 

states that "[n]ot highlighting such an off-the-wall part of the 

trial testimony by objecting to it when it occurred was not a 

manifestly unreasonable strategy at that moment." Indeed, no 

claim is made by the defendant here that counsel's failure to 

object amounted to ineffective assistance of counsel. 
19

(defendant's burden to establish existence of substantial risk 

of miscarriage of justice).

b. The prosecutor's closing argument. The defendant 

claims for the first time on appeal that the prosecutor vouched 

for the victim's energy identification in her closing argument. 

The challenged portion of the prosecutor's argument is as 

follows:

"She certainly did say she wanted to study that face. 

No doubt she wanted to. No doubt she wishes that she could 

tell you exactly what that person looked like in her 

bedroom, but she can't do that.

"You think about the trauma that she went through, the 

physical pain, the injuries to her, the raping, everything. 

And again and again, 'Don't look at me. Don't look at me.' 

Good thing he said that, because she didn't get to look at 

him. She didn't get to look at him. And all she can tell 

you when she was in the courtroom whether she could 

identify him was his energy. 

"'That's the way I operate. You people don't 

understand.' That's him; that's his energy. And you can 

give that whatever weight you deem necessary for that sixth 

sense of hers that she uses, saying, 'That's him; that's 

his energy.' Well, you might remember one of her positive 

expressions: I'm determined to move into my next perfect 

living space in New Hampshire by March seventh, 2006. 

Must. She certainly got that energy right. She just 

didn't get out in time. 

"March seventh, the day before this happens? That's 

her energy there, and her energy was in here. If you don't 

accept her identification of him through those senses, you 

don't have to. You can put it aside. You can disregard 

it, because you have enough evidence in this case to 

identify him as the perpetrator." 

Contrary to the defendant's claim, the energy testimony was 

not the "cornerstone" of the Commonwealth's case. The 
20

prosecutor did note the victim's energy testimony, but also told 

the jury they did not have to credit that testimony because 

there was so much other evidence to identify the defendant as 

the perpetrator. This did not constitute improper vouching. 

However, just as the evidence of an extrasensory 

identification should not have been admitted, this argument was 

improper. The Commonwealth should not have been urging jurors 

to give the victim's extrasensory energy recognition "whatever 

weight [they] deem necessary," or arguing that her ESP had a 

track record of reliability. Nonetheless, defense counsel did 

not object to this portion the prosecutor's closing argument. 

Again, we cannot say on this record that not objecting was a 

manifestly unreasonable tactical decision. In fact, there is no 

claim before us that it amounted to ineffective assistance of 

counsel. In all the facts and circumstances here, this error 

did not create a substantial risk of a miscarriage of justice. 

See Commonwealth v. Roderiques, 462 Mass. 415, 427 (2012)

("[O]ne factor to be considered in determining whether an error 

has created a substantial risk of a miscarriage of justice is 

whether defense counsel's failure to object was simply a 

reasonable tactical decision").

c. Identification instruction. The defendant claims that 

the judge erred in her jury instruction on identification by 

adding language to the standard instruction, which permitted the 
21

jury to consider whether a witness had an adequate opportunity 

to "ascertain [the offender's] demeanor," and put a "judicial 

imprimatur of approval" on the victim's putative identification 

of the defendant. We disagree. At trial, the defendant 

objected, but on different grounds. The defendant objected 

based on his belief that this was an improper reference to the 

victim's energy testimony because he did not "know if 

ascertaining a demeanor is an identification." The defendant 

did not claim the instruction provided judicial approval of the 

victim's energy recognition testimony.7 In any event, there was 

no error.

Our review of claimed jury instruction errors requires us 

to "evaluate the instruction as whole, looking for the 

interpretation a reasonable juror would place on the judge's 

words." Commonwealth v. Trapp, 423 Mass. 356, 361, cert. 

denied, 519 U.S. 1045 (1996). "We do not consider bits and 

pieces of the instruction in isolation." Commonwealth v. Young, 

461 Mass. 198, 207 (2012).

The judge instructed as follows:

"When evaluating a witness'[s] identification, you may 

consider many factors, including the circumstances 

 

7 At trial, the defendant sought the standard instruction on 

identification, even though the only identification of the 

defendant by the victim was her identification based on the 

defendant's "energy." No argument is raised here that the jury 

should not have been instructed on identification.
22

surrounding the encounter between the witness and the 

offender, and whether under those circumstances, the 

witness had an adequate opportunity to see the offender, to 

hear his voice, or to ascertain his demeanor." 

The addition of the concluding phrase regarding demeanor was not 

prejudicial and, as the judge specifically noted at the charge 

conference, was "separate and apart from the [victim's] energy" 

reference. Also, as the judge noted, the jury heard references 

to demeanor evidence when the victim told the police that her 

attacker had a "cocky attitude" and was "a coward from all 

angles." These were references to the behavior of the attacker, 

not to his energy, and in no manner bolstered the victim's 

credibility. When the judge's jury instructions are viewed as a 

whole, no reasonable juror could have improperly interpreted the 

references to demeanor as the defendant now suggests.

d. New trial motions. The defendant's first motion for 

new trial was denied in 2009. In that motion, the defendant 

claimed he received ineffective assistance of trial counsel for 

a number of reasons, including counsel's failure to contest the 

defendant's ability to fit through the hole in the wall that led 

to the victim's apartment.

8 In 2012, the defendant filed a 

second motion for new trial in which he claimed he was denied 

 

8 The defendant filed a notice of appeal from the denial of 

his first motion for new trial, but he does not raise any claim 

related to it on appeal. 
23

his right to a public trial,9 and that he received ineffective 

assistance of trial and first appellate counsel based on their 

failure to establish that he could not fit through the hole in 

the wall or, in the alternative, that expert evidence of the 

hole's dimensions was newly discovered. On appeal, the 

defendant claims that the motion judge, who was the also trial 

judge, abused her discretion by denying his second motion for 

new trial based on ineffective assistance. We disagree for 

several reasons.

First, under the doctrine of direct estoppel, a defendant 

is barred from seeking review of claims "actually litigated" and 

decided against him. Commonwealth v. Rodriguez, 443 Mass. 707, 

710 (2005). Here, the issue raised in the defendant's first 

motion for new trial, i.e., the claim of ineffective assistance 

related to the hole in the wall, was actually litigated and 

determined in that motion, it was an essential issue in the 

case, and the defendant had an opportunity to obtain review of 

the determination of his motion for new trial. See ibid. As 

such, direct estoppel operates as a bar to the defendant's 

attempt, in his second motion for a new trial, to relitigate his 

ineffective assistance claim.

 

9 The defendant's closed court room claim is not before us 

on appeal.
24

Second, "[a] defendant seeking a new trial on the basis of 

newly discovered evidence must establish both that the evidence 

is newly discovered and that it casts real doubt on the justice 

of the conviction." Commonwealth v. Pike, 431 Mass. 212, 218

(2000). "A defendant seeking a new trial on the ground of newly 

discovered evidence must first establish that the evidence was 

not discoverable at the time of trial despite the due diligence 

of the defendant or defense counsel." Commonwealth v. Sena, 441 

Mass. 822, 830 (2004). Moreover, the defendant must establish 

that the evidence in question was "unknown to the defendant or 

his counsel and not reasonably discoverable by them at the time 

of trial . . . . The defendant has the burden of proving that 

reasonable pretrial diligence would not have uncovered the 

evidence." Commonwealth v. Grace, 397 Mass. 303, 306 (1986).

In his brief, the defendant claims that the judge ruled 

that the proffered expert testimony was, among other things, 

"newly discovered." The judge did not so rule.10 Rather, the 

judge assumed for purposes of her resolution of the motion that 

the evidence was newly discovered. We need not, and do not, 

make the same assumption. The defendant has failed to 

demonstrate that reasonable pretrial diligence would not have 

uncovered the analyses in the expert's affidavits. There was no 

 

10 This misrepresentation was repeated in the defendant's 

reply brief. 
25

showing that the technology used to measure the hole's 

dimensions and the defendant's chest did not exist at the time 

of trial. See Commonwealth v. Shuman, 445 Mass. 268, 275 

(2005). Indeed, measuring is not on the vanguard of scientific 

techniques.

Third, even if the evidence were newly discovered, it was 

not an abuse of the judge's discretion to conclude that it did 

not cast real doubt on the justice of the defendant's 

convictions. See Commonwealth v. Grace, supra. Nor was it an 

abuse of discretion for the judge, employing the lens of

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), to have 

concluded that it would not have "accomplished something 

material for the defense." Commonwealth v. Satterfield, 373 

Mass. 109, 115 (1977).11

The expert's proffered measurements were contradictory as 

to the hole's narrowest point, and made the faulty assumption 

that the widest part of the defendant's chest would have to pass 

through the narrowest part of the hole. Also, the jury had

heard testimony from two witnesses who were similar in weight to 

the defendant, but shorter, who were able to fit through the 

 

11 Also, contrary to the defendant's reply brief, the judge 

did not find counsel to be ineffective. Instead, the judge held 

that the first prong of Commonwealth v. Saferian, 366 Mass. at

96, had been met, but the defendant failed to establish 

prejudice under the second prong. 
26

hole or through a replica of the hole constructed from its 

dimensions. Finally, when these facts are added to the 

overwhelming evidence of the defendant's identification as the 

attacker cataloged above in section 1.e, the denial of the 

motion was proper and not an abuse of discretion.

e. Attempt to burn personal property. The defendant 

claims his conviction of attempt to burn personal property, in 

violation of G. L. c. 266, § 5A, was not supported by sufficient 

evidence because the items in question were actually burned. We 

agree.

When evaluating sufficiency, the evidence must be viewed 

in the light most favorable to the Commonwealth with specific 

reference to the substantive elements of the offense. See 

Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979); Commonwealth

v. Latimore, 378 Mass. 671, 677-678 (1979). In this case, to 

establish the defendant's guilt of attempting to burn personal 

property in violation of G. L. c. 266, § 5A, the Commonwealth 

was required to prove that (1) the defendant attempted to set 

fire to property, (2) the defendant did so wilfully, and (3) the 

defendant did so maliciously, i.e., with an unlawful motive and 

without excuse.

Relative to the attempt, the defendant claims that because

he actually set fire to the box, it cannot be an attempt. We 

agree. In general, to prove an attempt under G. L. c. 274, § 6, 
27

the elements are (1) the intent to commit the substantive crime, 

(2) an overt act in furtherance of commission of the substantive

crime, and (3) nonachievement of the substantive crime -- that 

is, no actual completion of the substantive crime but, rather,

an attempt ending before the substantive crime can be fulfilled. 

See Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990); 

Commonwealth v. Bell, 455 Mass. 408, 412 (2009). Thus, under 

the general attempt statute, the completed substantive offense 

nullifies the existence of an attempt. Under G. L. c. 266, 

§ 5A, the Legislature included a separate definition of what 

constituted an attempt under § 5A. It states:

"The placing or distributing of any flammable, explosive or 

combustible material or substance or any device in or 

against any building, structure or property mentioned in 

the foregoing sections in an arrangement or preparation

with intent eventually to wilfully and maliciously set fire 

to or burn such building, structure or property, or to 

procure the setting fire to or burning of the same shall, 

for the purposes of this section, constitute an attempt to 

burn such building, structure or property."

While this dedicated definition of attempt for purposes of arson 

relaxed the stricter common-law requirements set forth in 

Commonwealth v. Peaslee, 177 Mass. 267, 271-272 (1901), and 

Commonwealth v. Ali, 7 Mass. App. Ct. 120, 123 (1979), it did 

not expand the understanding of an attempt to be more than an 

inchoate crime. Because the evidence, even in the light most 

favorable to the Commonwealth, showed the box of items was 
28

actually ablaze before the victim extinguished it, the defendant 

achieved the substantive crime and no actual attempt occurred.

12

f. Duplicative convictions. The defendant claims his

conviction of assault and battery by means of a dangerous weapon 

causing serious bodily injury is a lesser included offense of 

his conviction of mayhem (second theory). The Commonwealth 

concedes the issue, and we agree. See Commonwealth v. Forbes, 

86 Mass. App. Ct. 197, 202-203 (2014).

3. The Commonwealth's appeal. The judge allowed the 

defendant's motion, pursuant to G. L. c. 278A, § 7, for

postconviction DNA testing. On appeal, the Commonwealth claims 

the motion should have been denied. We affirm.

The Commonwealth claims the judge erred in concluding that 

the defendant was entitled to postconviction DNA testing under 

G. L. c. 278A, where there was no "reasonable potential" that 

testing would result in evidence material to the identification 

of the perpetrator of the crime. We disagree. Under G. L. 

c. 278A, § 7(b)(4), inserted by St. 2012, c. 38, "[t]he court 

shall allow the requested scientific or forensic analysis" where 

the defendant demonstrates by a preponderance of the evidence 

"that the requested analysis has the potential to result in 

evidence that is material to the moving party's identification 

 

12 Given the result we reach, we need not address the 

defendant's claim that the property at issue was not identified.
29

as the perpetrator of the crime in the underlying case." "We 

review questions of statutory interpretation de novo." 

Commonwealth v. Wade, 467 Mass. 496, 501 (2014). As the Supreme 

Judicial Court has held, "potential" within this framework is 

not reasonable potential: "The Legislature's use of the word 

'potential' in § 7(b)(4) suggests an awareness of the fact that 

the requested forensic analysis may not produce the desired 

evidence, but such a consequence should not be an impediment to 

analysis in the first instance." Commonwealth v. Clark, 472 

Mass. 120, 135-136 (2015). 

Here, the defendant established that DNA testing of the 

victim's finger swabs has potential under G. L. c. 278A,

§ 7(b)(4), to result in material identification evidence. 

During trial, the victim recounted her efforts to "peel" and 

"pull" the defendant's fingers off her nose and mouth. Even if 

it is "highly unlikely" that DNA testing will yield any 

probative results, the victim's testimony does suggest the 

potential that her assailant's DNA may have been on her hands 

and that the finger swabs could therefore produce material 

evidence. See Commonwealth v. Clark, supra at 135 (request for 

DNA analysis "has the 'potential' to result in evidence" where 

victim testified that defendant's knife may contain his blood or 

skin cells after victim attempted to stab him). 
30

The Commonwealth also asserts that the defendant fails to 

satisfy G. L. c. 278A, § 3(b)(5), which is required under

§ 7(b)(3), because a reasonably effective attorney would not 

have sought DNA analysis of the victim's finger swabs. We 

disagree. 

Under G. L. c. 278A, § 7(b)(3), the defendant must 

demonstrate by a preponderance that the evidence or biological 

material has not been subject to the analysis requested under 

G. L. c. 278A for one of five enumerated reasons stated in 

§ 3(b)(5). The defendant alleges that DNA testing did not occur 

in this case because his trial counsel failed to request testing 

and a "reasonably effective attorney would have sought [DNA]

analysis." G. L. c. 278A, § 3(b)(5)(iv). For the purposes of 

G. L. c. 278A, the defendant must demonstrate that "'a' 

reasonably effective attorney would have sought the requested 

analysis, not that every reasonably effective attorney would 

have done so." Commonwealth v. Wade, supra at 511. In this 

instance, the defendant's trial counsel decided to forgo DNA 

analysis and instead pursued a different trial strategy. 

Because G. L. c. 278A does not apply the Saferian ineffective 

assistance of counsel framework to evaluate whether an attorney 

is reasonably effective, the fact that trial counsel followed 

one trial strategy where another reasonably effective attorney 
31

might have sought DNA testing is enough to satisfy 

§ 3(b)(5)(iv). 

Finally, the Commonwealth claims that we should consider 

the strength of its case in determining whether the defendant 

demonstrated the necessary G. L. c. 278A, § 7, factors by a 

preponderance of the evidence. We disagree. Despite the cost 

of a DNA analysis and the finite resources of the Commonwealth, 

"the Legislature intended to permit access to DNA testing 

'regardless of the presence of overwhelming evidence of guilt in 

the underlying trial.'" Commonwealth v. Clark, supra at 136, 

quoting from Commonwealth v. Wade, supra at 511. As discussed 

above, the defendant has demonstrated that a reasonable attorney 

would have sought DNA analysis and that such analysis has the 

"potential" to result in evidence that is material to his 

identification as the perpetrator of the crime. Because the 

Legislature enacted G. L. c. 278A with the intent to remedy the 

wrongful convictions of factually innocent persons, we construe 

the statute and its language "in a manner that is generous to 

the moving party." Commonwealth v. Clark, supra. We therefore 

afford the defendant the opportunity for testing despite the 

strength of the Commonwealth's case, and our affirmance of his 

convictions.

4. Conclusion. The order denying the defendant's second 

motion for a new trial is affirmed. On the indictments charging 
32

the defendant with assault and battery by means of a dangerous 

weapon causing serious bodily injury, and attempt to burn 

personal property, the judgments are reversed, the verdicts are 

set aside, and those indictments are to be dismissed. The 

remaining judgments of conviction are affirmed, the sentences 

thereon are vacated, and the case is remanded for resentencing 

consistent with this opinion. The order allowing the 

defendant's motion for postconviction DNA testing is affirmed. 

So ordered.