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 pers uasive 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). COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
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COMMONWEALTH

vs . ALEXIS MIDDLETON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2008 , following a jury trial in the Superior Court , the
defendant , Alex Middleton , and his co

- defendant , Donnell
Nicholson , were each convicted of home invasion , aggravated
rape , armed assault in a dwelling , four counts of kidnapping , two counts of indecent assault and battery , and four counts of assault and battery. The defendant ' s co nviction s w ere affirmed by a panel of this court in 2011. Commonwealth v. Middleton , 80 Mass. App. Ct. 1110 (2011)
. In 202 2 , a panel of this court
affirmed the denial of the defendant ' s second motion for a new
trial in part and remanded the matter solely o n the issue of
whether , under the applicable Massachusetts standard , the failure of the Commonwealth to provide certain personnel records
of Massachusetts State Police crime laboratory employees
warrant ed a new trial
. Commonwealth v. Middleton , 10 1 Mass.2 App. Ct. 1115 (2022)
. On remand , the motion judge , utilizing the proper standard , denied the defendant ' s motion for a new
trial. In this appeal , th e defendant contends that the motion judge erred in concluding that the Commonwealth ' s failure to
pr ovide exculpatory evidence would not have made a difference in
the outcome of his trial. We affirm. Background
. We take the background facts from the judge's summary of the evidence admitted at trial which is largely
consistent with the defendant's recitation of the facts , and where it is not, the judge's summary is supported by the record
. Around midnight on January 11 , 2005 , S
. M. and three of his
friends returned to S. M.'s home in Braintree to find two masked intruders inside looking for money and drugs
. Over the next
hour , t he intruders beat all four victims , ordered them to strip
naked , and bound them. The masked men continued to beat S . M. while demanding money and drugs , beat one victim in the head with a gun so severely he requ ired stitches , threatened to kill
all of the victims , forc ed one victim to take the defendant ' s penis into her mouth and perform oral sex , and threaten ed to rape a third victim
. During the assaults , the intruders heard someone pull into the driveway of the home and they fled to the basement. One of the victims heard one of the intruders yelling , " Bitch , you need
to come pick us up " and heard the two intruders communicating3 with a Nextel two

- way radi o. That victim remembered that at least once during the assaults , he heard a female ' s voice on the
other end of the Nextel. Although none of the victims w ere able to identify either of the attackers (because they were masked) , the Commonwealth tied the d efendant to the crimes using deoxyribonucleic acid (DNA) evidence , wiretap evidence , and th e testimony of a cooperating witness (Tia) who was present when the defendant and codefendant planned and prepared for the robbery , 1 and was also present with the defendant and co

defendant after the assaults , when the co

- defendant made incriminating statements. After an investigation , the defendant was arrested in January of 2005 and later indicted. On separate dates and at separate locations , t he investigato rs gathered DNA samples of the rape victim and the two co

- defendants ; the DNA samples were
then analyzed in the State Police Crime Laboratory (crime lab). Carol Courtright , a criminologist working at the crime lab , detected sperm cells from the oral swab collected from the rape victim. Massachusetts State Trooper Bruce Tobin separately
obtained buccal swabs of each of the co

- defendants in the

1 The witness testified that the day before the attack , she went for a drive with both defendants
. D uring the trip , co - defendant Nicholson procured a shotgun and a bulletproof vest , and drove a few times by the home where the victims were attacked while talking about robbing the owner of money and marijuana.4 presence of their attorneys. Tobin individually labeled each
buccal swab and affixed the name of the defendant fr om whom he took the sample , before he sealed and stored the swab at the
crime lab. In late 2005 , at the crime lab , Hillary Griffiths took the three known samples and developed a DNA profile for
each sample
. Another DNA analyst , Rachel Chow , analyzed the sperm that was preserved from the oral swab of the rape victim.
Chow determined that the male DNA profile from the oral swab of the victim matched the DNA profile from the defendant ' s buccal
swab. In anticipation of the Commonwealth ' s introduction of the
DNA evidence , defense counsel made pretrial discovery requests
for " background information " about each person involved in conducting or reviewing DNA testing in this case
. Before trial , the Commonwealth produced i nformation about Hilary Griffiths and
Rachel Chow inclu ding proficiency test results and resumes
. At
trial , the Commonwealth did not call Chow or Griffiths to testify about the DNA , but rather the DNA evidence was presented through a supervisor of the DNA unit , Caitlin Drugan. Drugan did not perform the analysis but independently evaluated Chow ' s and Griffiths ' s work , confirm ed their analyses , and offered her own opinion that the defendant was a statistical match for the DNA found in the rape victim ' s mouth.5 More than a decade after the defendant was con victed , the
defendant ' s ongoing discovery efforts revealed additional , previously undisclosed personnel file information about
Griffiths ' s and Chow ' s employment at the crime lab . This
additional information included documents dated in 2006 , by
which Griff iths and Chow were separately notified that they were suspended from certain analytical duties. The suspensions
referenced " instances of DNA
. . . discrepancies " in the few months preceding the suspensions , and issues with their " skill
set to focus on tasks without sample mix

- ups , as aliquots are not placed in appropriate tubes/rows. " As w e noted in our August 12, 2022 decision, "t he personnel files also contained information prepared after the date of trial but that related to
Griffiths ' s work perform ance at and around the time of her work on the samples in this case

-- a 2009 State Police report including indirect reports that Griffiths ' was not capable of performing daily exemplar work until shortly before June 3 , 2008 , ' and indications from Griffith s in an undated transcript excerpt and an e

- mail exchange with a supervisor in 2013 suggesting that lab personnel were hiding mistakes made during testing. " Middleton , 101 Mass. App. Ct. at 1115
. The defendant moved for a new trial based upon the
Commonwealth ' s failure to produce exculpatory evidence. Id
. Initially , t he defendant argued that Chow may have mixed up the6 DNA profiles and mistakenly identified the defendant , instead of
Nicholson , as the individual whose DNA matched the sperm DNA
foun d in the victim ' s mouth. Upon learning that Chow did not handle or analyze the exemplars of either Middleton or
Nicholson , the defendant changed his argument , instead claiming
that Griffiths may have mixed up the samples and mistakenly generated a DNA pro file from Nicholson ' s sample and assigned it
to Middleton. The defendant contends that , despite the fact that the DNA samples of each of the co

- defendants were separately collected and labeled by Trooper Tobin before being
stored at the crime lab , Griffit hs switched the exemplars of
Middletown and Nicholson. The defendant claims that , had the evidence of the personnel files been timely provided to him , he could have impeached Drugan ' s opinion testimony and it would have had an impact on the outcome of the trial.
Discussion . 1. Standard of review
. " Under Mass. R. Crim.
P. 30 (b) , [ as appearing in 435 Mass. 1501 (2001) ] , a judge may grant a motion for a new trial at any time if it appears that justice may not have been done. " Commonwealth v. Williams , 89 Mass. App. Ct. 383 , 387 (2016 ) , quoting Commonwealth v. Scott , 467 Mass. 336 , 344 (2014). " We review a judge ' s decision to deny a motion for a new trial without holding an evidentiary hearing ' for a significant error of law or other abuse of
discretion. '" Commonwealth v. Upton , 484 Mass. 155 , 162 (2020) ,7 quoting Commonwealth v. Bonnett , 482 Mass. 838 , 843

- 844 (2 019).
In o ur review for abuse of discretion " must give great deference to the judge ' s exercise of discretion; it is plainly not an
abuse of discretion simply because the reviewing judge would
have reached a different result. " L.L
. v. Commonwealth , 470
Mass. 169 , 18 5 n.27 (2014). In other words , an abuse of discretion occurs if a judge makes "' a clear error of judgment in weighing ' the factors relevant to the decision '" (citation omitted). Id
. " [W]e ' extend[ ] special deference to th e action of a motion judge who was also the trial judge. '" Commonwealth

v. Conley 103 Mass. App. Ct. 496 , 512 (2023) , quoting
Commonwealth v. Grace , 397 Mass. 303 , 307 (1986).
2. Exculpatory evidence
. In order to obtain a new trial
on the basis of nondisclosed exculpatory evidence , " a defendant must establish (1) that the evidence [ was ] in the possession , custody , or control of the prosecutor or a person subject to the prosecutor ' s control; (2) that the evidence i s exculpatory ; and (3) prejudice. " Commonwealth v. Caldwell , 487 Mass. 370, 375 (2021).
As to the third element

-- prejudice

-- the motion judge analyzed the defendant ' s request for " background information " of
the crime lab employees as a " specific request. " Wh en a motion for a new trial is based upon a specific request for exculpatory
evidence , " a defendant need demonstrate only that a substantial8 basis exists for claiming prejudice from the nondisclosure. "
Commonwealth v. Pope , 489 Mass. 790 , 801 (2022) , quoting
Commonwealth v. Tucceri , 472 Mass. 401 , 412 (1992). 2 See
Commonwealth v. Healy , 438 Mass. 672 , 680 ( 2003) , quoting
Commonwealth v. Daye , 411 Mass. 719, 729 (1992) ( " In cases involving a specific request for evidence , we look to the record
to determine ' whether we can be confident that even if the prosecution had supplied the report to the defendant [] in a timely fashion , the report or available evidence disclosed would not have influenced the jury ' " ). T he defendant bears the burden of establishing that he was prejudiced by the failure to
disclose the evidence. See Commonwealth v. Imbert , 479 Mass. 575, 583 (2018 ).
In her analysis , the judge applied the most favorable
standard of review for the defendant , but nevertheless denied
his second motion for a new trial. On this record , we perceive
no abuse of discretion
. T he judge properly considered whether
the evidence , had it been disclosed , " would have influenced " the jury , Daye , 411 Mass. at 729, and concluded that the defendant
failed to show that there wa s a " reasonable possibility that the

2 If the request for evidence i s non - specific , the test is

" whether there is a substantial chance that the jury might not have reached verdicts of guilt if the undisclosed evidence had been introduced in evidence. " Tucceri , 412 Mass. at 413.9 nondisclosed evidence would have made a difference. " Imbert , supra . The judge carefully considered the nondisclosed evidence in
the context of the strength of the entire case against the
defendant
. Commonwealth v. Lykus , 451 Mass. 310 , 32 9

- 330 ( 2008). The judge described how the DNA evidence was just a part of the Commonwealth ' s case against the defendant. In particular , Tia , a witness for the Commonwealth , testified at
trial that she and the defendant had been friends for a couple of years , and that the day before the home invasion she went on
a drive with the defendant and Nicholson. Tia ' s testimony placed the defendant in the car when they drove by S. M. ' s home in Braintree and Nicholson spoke about robbing S. M. of money and marijuana. On the drive Nicholson , who already had a handgun in the car , retrieved a shotgun and a bulletproof vest. During the intrusion , Nicholson called Tia on the Nextel radio. Later, Tia asked Nicholson what happened with the female victim at the house and Nicholson laughed and told her " it wasn ' t him. "
Tia ' s testimony also placed the defendant in the car with
Nicholson and Tia the day after th e home invasion , at which time
Nicholson threatened to kill Tia ' s mother , daughter, and Tia , herself, if Tia spoke to the police.
Furthermore , as the judge explained , it was Caitlyn Drugan , not Griffiths or Chow , who t estified at trial that the DNA of10 the defendant matched the DNA of the sperm taken from the
victim ' s mouth. 3 The judge concluded that " at no time up to and including the present (and despite having filed two motions for a new trial and a revised motion) has the defendant actually
identif ied any errors in the DNA analysis
. . . or offered any scientific basis for challenging its accuracy. " Moreover , the judge noted that , w ith the evidence provided , the defense was able to argue strenuously at trial that the jury should
disbelieve that Cho w or Griffiths " performed in a manner that was appropriate " and that " there ' s no indication that the oral swab that was presented to the DNA lab was that of
Mr. Middleton []
. " Although the additional personnel files no
doubt could have been used for additi onal impeachment , nothing
in these documents indicated that the concerns with the work of
Chow or Griffiths had to do with their work on the defendant ' s sample , and more importantly , it remains that Drugan independently reviewed the DNA testing and provided an opinion that was subject to thorough cross

- examination
. Simply put , the defendant ' s claim that Griffith s may have swapped the DNA sample s of the defendant and Nicholson remains

3 Drugan ' s opinion testimony at tri al relating to the DNA evidence was upheld in an earlier ruling of this court because she independently reviewed the DNA evidence. See Commonwealth v. Middleton , 80 Mass. App. Ct. 1110. The defendant ' s claim that Drugan did not independently analyze the evi dence is without support in the record.11 entirely speculative , with no grounding in the person n el files

or in the other evidence presented or available . Recognizing the special deference we owe to the motion judge , who was the trial judge and ha d a superior insight into how the jury reacted to Drugan ' s testimony and the defense ' s attacks upon it , we discern no error in her determination that there was not enough to establish a substantial basis for a claim of prejudice
. Order entered January 4, 2023, denying second motion for new trial a ffirmed
. By the Court (Ditkoff , Englander & Walsh , JJ. 4 ) ,

Assistant Clerk

Entered: January 19 , 2024
.

4 The panelists are listed in order of seniority.