NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

14-P-1660 Appeals Court

COMMONWEALTH vs. MARIE E. LYONS.

No. 14-P-1660.

Plymouth. December 9, 2015. - June 6, 2016.

Present: Green, Vuono, & Meade, JJ.

Deoxyribonucleic Acid. Practice, Criminal, Postconviction 

relief, Discovery. Evidence, Chain of custody, Scientific 

test, Relevancy and materiality.

Indictment found and returned in the Superior Court 

Department on November 5, 2001.

A postconviction motion for access to untested evidence, 

filed on September 10, 2012, was heard by Linda E. Giles, J., 

and a motion for reconsideration, filed on August 18, 2014, was 

considered by her.

Sara J. van Vliet (Nicholas J. Ramacher with her) for the 

defendant.

Gail M. McKenna, Assistant District Attorney, for the 

Commonwealth.
2

VUONO, J. The defendant, Marie E. Lyons, is serving a life 

sentence for the murder in the second degree of Gerard Charron.

1

She appeals from the denial of her postconviction motion,

brought pursuant to G. L. c. 278A, § 3 (§ 3 motion), in which 

she sought access to biological evidence for the purpose of 

conducting deoxyribonucleic acid (DNA) testing. The key 

evidence consists of two strands of hair, one found in each of 

the victim's hands when his body was discovered. The primary 

issue raised is whether Lyons is entitled to discovery regarding 

the current location and condition of the evidence and 

documentation of the chain of custody of the hair. For the 

reasons that follow, we conclude that Lyons's request for

discovery should have been allowed and, therefore, we vacate the 

order denying the § 3 motion and remand the matter to the 

Superior Court for additional proceedings.

Background. 1. Facts. The jury that convicted Lyons in 

2004 could have found the following facts. Lyons and Charron 

had been dating for about four months before Charron was killed. 

The couple were homeless and camping in a public park in 

Brockton on September 12, 2001, when, shortly before 1:00 A.M., 

the police received four 911 calls. One of the callers, who 

 

1 We affirmed the conviction in an unpublished decision 

pursuant to our rule 1:28, and the Supreme Judicial Court denied 

further appellate review. See Commonwealth v. Lyons, 70 Mass. 

App. Ct. 1109 (2007), S.C., 450 Mass. 1108 (2008).
3

lived nearby, testified at trial that at the time he heard loud 

voices coming from the park; the loudest voice, that of a woman, 

said, "Oh, my God, what have I done." An emergency medical 

technician arrived at the scene shortly thereafter and found the 

body of the victim on a blanket, completely covered except for 

the top of his head. The cause of death was sharp force and 

blunt force head trauma inflicted by a sharp instrument. Lyons

was alone at the scene, upset and crying, when the police 

arrived a few minutes later. She had blood on her hands, 

clothing, and sneakers. The Commonwealth's expert opined that 

blood spatter on Lyons's clothing was created by cast-off blood 

from a weapon used to stab Charron in the head. No weapon was 

recovered.

When Charron's body was examined, a strand of hair was 

retrieved from each of his hands. Although the hair was 

available for scientific and forensic analysis before trial, 

neither the Commonwealth nor Lyons conducted any testing. The 

two strands of hair and a known hair sample from the victim's 

head were introduced in evidence as exhibits 71-73 by defense 

counsel at the conclusion of the defense's case.

2 In his closing 

argument, defense counsel attempted to persuade the jury that 

DNA testing of the hair would have identified the murderer and 

 

2 The evidence had been in the possession of the 

Commonwealth and was introduced without objection to its chain 

of custody.
4

that the Commonwealth's failure to test the hair established 

reasonable doubt.

3

2. The § 3 motion. Lyons's § 3 motion asserted her 

factual innocence of the crime and that evidence of hair 

belonging to a third party in the victim's hands would be strong 

evidence of her innocence and would help identify the actual 

perpetrator. In her affidavit submitted in support of the 

motion, Lyons claimed that she was unaware that the strands of

hair existed until the evidence was discussed in court during 

her trial and that, if she had known about the hair, she would 

have requested that DNA testing be conducted prior to trial.

4 

The affidavit also set forth Lyons's postconviction efforts to 

obtain access to the evidence. She specifically averred that

the "State [p]olice ha[ve] refused to provide any information 

concerning the present location or condition of any of the 

evidence concerning my case."

An affidavit from one of the attorneys representing Lyons 

in connection with her motion stated that Lyons's trial counsel

"reported that he had no information concerning the location or 

 

3 The Commonwealth in turn argued to the jury that they 

should infer the hair had come from the victim, referring to 

testimony of an experienced detective that victims of head 

attacks often grab at their own heads as they attempt to ward 

off blows.

4 Lyons also claimed that trial counsel was ineffective for 

failing to request DNA testing of the hair.
5

condition of any physical evidence in this case, including the 

hair evidence." Motion counsel also averred that one of the 

assistant district attorneys who tried the case (the ADA5) had 

informed him that the Commonwealth also "was unaware of the 

location or condition of the physical evidence in this case."

6

The § 3 motion specifically requested discovery regarding the 

current location of the evidence and documentation of the chain 

of custody of the hair. See G. L. c. 278A, § 3(c).

The § 3 motion was reviewed by the trial judge, who 

determined that Lyons had satisfied the statute's threshold 

requirements, see G. L. c. 278A, § 3(e), but the judge did not 

address Lyons's request for discovery. As required by the 

statute, the Commonwealth was given sixty days to respond to 

Lyons's motion. See G. L. c. 278A, § 4(b). That response came 

in the form of a motion to dismiss in which the Commonwealth

claimed that the "statute does not provide for the routine 

testing or retesting for analysis of alleged biological 

materials that were readily available to a defendant at [the]

time of trial." The Commonwealth next argued that the evidence 

against Lyons was strong and, because neither the prosecution

 

5 There were two assistant district attorneys who prosecuted

the case at trial, but only one of the two was involved with the 

§ 3 motion. We refer to her as the ADA for convenience.

6 We note that the Commonwealth has contested this 

allegation.
6

nor trial counsel "ever suggested that the hair belonged to the 

defendant," the results of DNA testing would have no probative 

value. The Commonwealth pointed out that trial counsel had made 

a tactical decision not to test the hair and had argued 

"vigorously" in closing that Lyons should be acquitted because 

the Commonwealth failed to conduct DNA testing. The 

Commonwealth further asserted that the jury were able to 

physically inspect the two strands of hair and the victim's hair 

sample and would have known that Lyons had shoulder length 

blonde hair and that the victim had short darker hair. Thus, 

the Commonwealth claimed that the jury could have concluded on 

their own whether the hair in question belonged to a third 

party.

3. The hearing. The trial judge held a hearing on the § 3 

motion on February 12, 2014.

7 During the course of the hearing, 

 

7 After a defendant has succeeded in meeting the minimum 

threshold requirements of § 3, the defendant is entitled to an 

evidentiary hearing. See G. L. c. 278A, § 6. To obtain the 

requested forensic or scientific analysis, she must meet her 

burden in establishing by a preponderance of evidence the 

matters set out in G. L. c. 278A, § 7(b), inserted by St. 2012, 

c. 38:

"(1) that the evidence or biological material exists;

"(2) that the evidence or biological material has been 

subject to a chain of custody that is sufficient to 

establish that it has not deteriorated, been substituted, 

tampered with, replaced, handled or altered such that the 

results of the requested analysis would lack any probative 

value;
7

at which Lyons was present, a dispute arose regarding the chain 

of custody of the hair. The dispute centered upon two things: 

the current location of the evidence and the condition of the 

exhibits. It can be inferred from the record that, upon the 

conclusion of the trial, all of the evidence, including exhibits 

71-73, remained in the office of the Superior Court clerk for 

Plymouth County for six years before being returned to the State 

 

"(3) that the evidence or biological material has not been 

subjected to the requested analysis for any of the reasons 

in [§ 3(b)(5)(i)-(v): i.e., (i) the requested analysis had 

not yet been developed at the time of the conviction; (ii) 

the results of the requested analysis were not admissible 

in the courts of the Commonwealth at the time of the 

conviction; (iii) the moving party and the moving party's 

attorney were not aware of and did not have reason to be 

aware of the existence of the evidence or biological 

material at the time of the underlying case and conviction; 

(iv) the moving party's attorney in the underlying case was 

aware at the time of the conviction of the existence of the 

evidence or biological material, the results of the 

requested analysis were admissible as evidence in courts of 

the Commonwealth, a reasonably effective attorney would 

have sought the analysis and either the moving party's 

attorney failed to seek the analysis or the judge denied 

the request; or (v) the evidence or biological material was 

otherwise unavailable at the time of the conviction];

"(4) that the requested analysis has 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;

"(5) that the purpose of the motion is not the obstruction 

of justice or delay; and

"(6) that the results of the particular type of analysis 

being requested have been found to be admissible in courts 

of the commonwealth."
8

police in 2010. At the time of the hearing, the ADA

"presume[d]" that the evidence was in a storage room maintained 

by the State police.

8 However, prior to the hearing, no one 

involved had actually seen any of the evidence since the trial, 

including exhibits 71-73. Motion counsel for Lyons9 had no 

access to the evidence because the judge had not ruled upon 

Lyons's motion for discovery, which included a request to view 

the exhibits. The ADA had not looked at the evidence because, 

as the ADA stated, "I'm not going near it while it's under 

litigation for obvious reasons."

The second area of dispute concerned the condition of the 

envelopes containing the strands of hair when they were sent to 

the jury room. According to the ADA, at trial the hairs were in 

small manila envelopes that the jurors could open. Thus, the 

ADA argued, even if the evidence could be located, the chain of 

custody had been broken by virtue of the fact that the hair was 

available for inspection by the jury. The judge pursued this 

 

8 The ADA stated, "Then at [the] end of trial it's in 

wher[e]ver the Court put it for about six years before the 

[S]tate police go and pick it up and put it in the [S]tate 

police storage room." Later in the hearing, the ADA added,

"According to the docket[,] in 2010[,] the Superior Court 

returned [the exhibits] to the [S]tate police. So I presume 

that they are in a box in an evidence locker. Presume. I'm not 

warranting anything about the evidence."

9 There were two attorneys representing Lyons at the 

hearing, but for convenience we treat them as one in our 

discussion.
9

point with Lyons's motion counsel and asked, "Even if we obtain 

those envelopes[,] how can anybody be sure [w]hat the content[]

of those envelopes is right now?" Counsel responded, "I would 

have to know more about the envelopes and about the evidence, 

which I can't do as we stand procedurally without access to 

them."

The judge returned to this issue later in the hearing, 

noting that, at this point, the envelopes could contain the hair

of a juror. Motion counsel acknowledged that could be true, 

after which the following exchange ensued:

The court: "Let's not forget or gloss over . . . that very 

important issue. How do I get around that[,] [motion 

counsel]? These envelopes were sent up to the jury in 

Brockton and I have a very, very vague recollection that 

they were in small manila envelopes and I don't think they 

were sealed."

Motion counsel: "They were sealed."

The court: "They were sealed?"

Motion counsel: "Yes."

The ADA: "No, they were not, your Honor."

The court: "[H]ow do you know they weren't sealed -- they 

were sealed?"

The ADA: "I remember specifically they weren't sealed 

because in looking at the evidence I remember one of the 

[S]tate police troopers going like this with [one of] the 

envelope[s] (indicating) when we were over in the DA's 

office. I just remember that. I don't remember what was 

inside, I just remember those envelopes and him going like 

this and just pinching it open. So it wasn't sealed if he 

pinched it open and was looking inside. But I do remember 

that."
10

The judge subsequently stated that she "certainly 

accept[ed] [the ADA's] representation," to which motion counsel 

responded that, "at the very least," Lyons was entitled to 

discovery on the chain of custody and "entitled to some

discovery on exactly what was in [the envelopes] rather than 

people's memories from 2004."

Ultimately, given the uncertainty involving the chain of 

custody of the hair evidence, the judge gave motion counsel 

additional time to supplement the § 3 motion. The judge said,

"It seems to me it would be incumbent on [Lyons] to say that 

th[ose] envelope[s] [containing the strands of hair] eventually 

w[ere] sealed when [they] went up to the jury room and came back 

sealed." She added, "[T]ake as much time as you need . . . . 

Either you're going to tell me I have no further supplementation 

or here is my supplementation." By letter dated April 25, 2014,

motion counsel declined the opportunity to supplement the

presentation. The letter stated, "At this time, Ms. Lyons has 

determined that she will not supplement her motion . . . and she 

rests on her motion and briefs as filed. . . . Ms. Lyons notes 

that she does not accept [the ADA's] representation at oral 

argument that the envelopes containing the hairs 'weren't 

sealed.'" Lyons later filed a more detailed motion for 
11

discovery, citing G. L. c. 278A, §§ 3(c) & 7(c);

10 however, as 

far as we can discern from the record, no action has been taken 

on the motion.

 

10 General Laws c. 278A, § 3(c), inserted by St. 2012, 

c. 38, provides:

"If the moving party is unable to include for filing with 

the motion any of the items or information described in 

[§ 3(b)], or if the moving party lacks items or information 

necessary to establish any of the factors listed in 

[§ 7(b)], the moving party shall include a description of 

efforts made to obtain such items and information and may 

move for discovery of such items or information from the 

prosecuting attorney or any third party."

General Laws c. 278A, § 7(c), inserted by St. 2012, c. 38,

provides:

"The court on motion of any party, after notice to the 

opposing party and any third party from whom discovery is 

sought, and an opportunity to be heard, may authorize such 

discovery as provided for under [Mass.R.Crim.P. 30(c)(4), 

as appearing in 435 Mass. 1501 (2001)], from either party 

or any third party as is deemed appropriate, subject to 

appropriate protective orders or an order to the party 

seeking discovery to produce reciprocal discovery.

"Such discovery may include items and biological materials 

from third parties, provided the party seeking discovery 

demonstrates that analysis of these items or biological 

material will, by a preponderance of the evidence, provide 

evidence material to the identification of a perpetrator of 

the crime.

"If, in response to a motion made under [§ 3(c)], the court 

finds good cause for the moving party's inability to obtain 

items or information required under [§ 3(b)] and [§ 7(b)], 

the court may order discovery to assist the moving party in 

identifying the location and condition of evidence or 

biological material that was obtained in relation to the 

underlying case, regardless of whether it was introduced at 

trial or would be admissible. The court, when considering 

such discovery requests, shall not require the 
12

4. The judge's memorandum of decision. The judge issued 

written findings of fact and conclusions of law in which she 

concluded that Lyons had not met her burden of showing an 

adequate chain of custody under G. L. c. 278A, § 7(b)(2), and 

had failed to establish that DNA testing had the potential to 

result in evidence that would be material to Lyons's identity as 

the murderer under § 7(b)(4). (See note 7, supra.) 

Consequently, the judge denied the § 3 motion.

11

With respect to the defense burden under § 7(b)(2), the 

judge determined that Lyons failed to show an adequate chain of 

custody to establish the integrity of the hair exhibits. The 

judge wrote,

"Although I have no independent recollection of this 

matter, I credit [the ADA's] representation that the hair 

samples were admitted at trial by [defense counsel] as 

exhibits in unsealed envelopes, without any consideration 

for the possibility that this forensic evidence would be 

handled, contaminated, replaced, or lost by the jurors 

during deliberations. Moreover, the defendant chose not to 

take the court up on its offer to present further evidence 

to rebut [the ADA's] assertion. Thus, the chain of custody 

of this putative biological material clearly was broken at 

the door of the jury deliberation room, if not earlier 

. . . while in the care and custody of unknown parties."

Regarding the defense showing under § 7(b)(4), the judge 

concluded that Lyons failed to show that the requested analysis 

 

establishment of a prima facie case for relief under

[Mass.R.Crim.P. 30]."

11 Lyons filed a motion to reconsider (or in the alternative 

a renewed § 3 motion), which the judge also denied. Before us 

is the consolidated appeal from the denials of both motions.
13

"has 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." The judge's reasoning was as follows:

"In the case at bar, determining the source of the hair 

would not have proved that the source was the victim's 

assailant. The defendant admitted to the police that she 

was alone with the victim in the park. Besides, there was 

no evidence that the victim engaged in a fight or struggle 

with his murderer so as to result in the assailant's hairs

being clutched by the victim. What is more, given the 

unwashed condition of the blanket or bedding on which the 

defendant and victim slept in an open park, the hairs in 

the victim's hands could have originated at any time and 

from any number of sources, including from a dog. In 

addition, it was [the Commonwealth's expert's] opinion that 

the hairs probably came from the victim's own head as a 

result of his defensive or reflexive moves. In the 

alternative, the jurors, who had the opportunity to examine 

the hairs, could have determined that they matched the 

long, blonde hair of the defendant. In either case, the 

defendant's claim that the hairs came from some unknown 

human being amounts to pure speculation."

The judge did not explicitly address the defense burden under 

the remaining subsections of § 7(b).

Discussion. 1. Condition of evidence and chain of 

custody. The statute governing a postconviction motion to 

conduct forensic or scientific analysis of biological material 

contemplates the possible need for discovery before such a 

motion properly can be decided. Under G. L. c. 278A, § 7(c), 

the court on motion and after notice and hearing "may authorize 

such discovery as provided for under [Mass.R.Crim.P. 30(c)(4), 

as appearing in 435 Mass. 1501 (2001)]"; § 7(c) further provides 

that "[i]f, in response to a motion made under [§ 3(c)], the 
14

court finds good cause for the moving party's inability to 

obtain items or information required under [§ 3(b)] and 

[§ 7(b)], the court may order discovery to assist the moving 

party in identifying the location and condition of evidence or 

biological material that was obtained in relation to the 

underlying case . . . ."

Lyons contends that the judge should have granted her 

request for discovery and that the failure to do so prevented 

her from establishing an adequate chain of custody as required 

by § 7(b)(2). She also challenges the judge's reliance on the 

ADA's representation at the hearing that the envelopes 

containing the exhibits went to the jury unsealed, claiming that 

unsworn statements of a prosecutor cannot substitute for 

evidence. We agree with both assertions.

First, it appears that exhibits 71-73 are in the custody of 

the State police and, if so, they should be available for 

inspection. Indeed, we discern no valid reason to preclude 

Lyons from viewing the exhibits in order to determine the 

condition of the envelopes and ascertain whether any or all of 

them still contain the strands of hair retrieved from the 

victim.

12 In the language of the statute, we conclude that in 

the unique circumstances of this case there was "good cause" 

 

12 We are confident that the parties will make mutually 

acceptable arrangements to conduct a physical inspection of the 

evidence.
15

under § 7(c) for Lyons's present inability to establish the 

condition of the biological evidence and that it has been 

subject to a sufficient chain of custody. We also conclude that 

the judge should have ordered suitable discovery to advance the 

resolution of these questions.

Clearly, the issue whether a physical inspection will 

provide evidence helpful to Lyons in meeting her burden remains 

an open question.

13 It may turn out, as the judge concluded 

(prematurely in our view), that the envelopes are unsealed,

14

lending support to the Commonwealth's position that the chain of 

custody was broken once the exhibits were sent to the jury 

deliberation room. On the other hand, the condition of the 

envelopes, if currently sealed, may provide support to a 

contrary conclusion. And while the current sealed or unsealed 

condition of the envelopes is an important first inquiry, in our 

view neither fact by itself need automatically dispose of the 

 

13 We repeat here what the statute ultimately requires: a

defendant must demonstrate, by a preponderance of the evidence, 

that the "biological material has been subject to a chain of 

custody that is sufficient to establish that it has not 

deteriorated, been substituted, tampered with, replaced, handled 

or altered such that the results of the requested analysis would 

lack any probative value" (emphases supplied). We observe that 

we are not called upon in this appeal to render a comprehensive

interpretation of this language.

14 Indeed, the envelopes may even be empty.
16

chain of custody question before the trial court;15 it is thus 

possible that the physical inspection may give rise to a need 

for additional appropriate discovery.16 In any event, the 

question whether Lyons can meet her burden cannot be resolved 

without additional discovery, beginning with a physical 

inspection of the exhibits.

17

We are also persuaded that the judge's reliance on the 

ADA's memory of the condition of the envelopes was misplaced. 

In so concluding, we do not mean to suggest that the ADA is not 

 

15 For example, in common experience an unsealed but closed 

envelope with an adhesive flap can become sealed due to such 

factors as the passage of time, the quality of the adhesive, and 

the conditions of storage (including compression, temperature, 

and moisture levels). Conversely, an envelope sealed with an 

adhesive flap can become unsealed over time depending on similar 

factors. (Here, a dozen years have passed since the trial.) 

Part of the difficulty in the instant case is the lack of 

information about the exact nature of the exhibit envelopes and 

their storage history -- matters as to which a physical 

examination is likely to shed some light.

16 For example, the defense conceivably might seek other 

testimony, such as from trial counsel or court officers

regarding the appearance or handling of the exhibits during the

trial; or from clerk's office or State police personnel about 

the appearance or handling of the exhibits thereafter. It is 

also not beyond possibility that expert evidence might be sought 

regarding the properties or behavior over time of any adhesive 

on the exhibit envelopes. We do not, however, opine in advance 

whether any of these forms of discovery must be permitted.

17 We acknowledge that during the hearing, when asked by the 

judge to specify what discovery he would seek, defense counsel 

equivocated: "I don't know at the moment. I would have to -- I 

would have to come with a motion." Such a motion was eventually 

filed, but only after the judge had first denied the § 3 motion. 

See text accompanying note 10, supra.
17

credible or that a judge could not rely on statements made by an 

attorney as an officer of the court in some circumstances. We 

are saying only that those circumstances do not exist in this 

case. Here, rather than relying on the ADA's memory, there is a 

readily available method to determine by direct physical 

inspection the very important -- though, as we have indicated,

perhaps not determinative -- threshold fact whether the 

envelopes are currently sealed or unsealed.

2. Potential for materiality. Lyons next argues that she

satisfied her burden under § 7(b)(4) because the requested DNA 

testing of the hair has the potential to identify the murderer. 

She contends that the judge construed the statute too narrowly 

when she concluded that her motion should be denied because the 

"claim that the [strands of] hair[] came from some unknown human 

being amounts to pure speculation." Lyons is correct. At the 

time the judge ruled on Lyons's motion, she did not have the 

benefit of the Supreme Judicial Court decision in Commonwealth

v. Clark, 472 Mass. 120 (2015), or our decision in Commonwealth

v. Coutu, 88 Mass. App. Ct. 686 (2015). In Clark, the court 

clarified that "[t]he 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, supra
18

at 135-136. In other words, it matters not whether Lyons can 

demonstrate that DNA testing will identify the perpetrator; the 

critical inquiry is whether such testing has the "potential" to 

result in material identification evidence. This "potential" is 

not diminished by the defense strategy pursued at trial or by 

the fact, as the Commonwealth emphasizes, that there was never a 

claim at trial that the hair belonged to Lyons. The point is 

"[e]ven if it is 'highly unlikely' that DNA testing will yield

any probative results," Commonwealth v. Coutu, supra at 702,

Lyons has met her burden under § 7(b)(4).

Conclusion. As we have discussed, we conclude that Lyons 

was entitled to discovery regarding the condition and chain of 

custody of the evidence and that the judge erred when she found

that Lyons had not met her burden under § 7(b)(4). We therefore 

vacate the order denying the § 3 motion and remand the matter to 

the Superior Court for additional proceedings consistent with 

this opinion. These shall include an order permitting physical 

inspection of trial exhibits 71-73; such additional discovery as 

deemed warranted by the judge; a determination whether Lyons has 

demonstrated, by a preponderance of the evidence, the 

requirements of G. L. c. 278A, § 7(b)(1) & (2); and, if so, a 

determination whether Lyons has also met the requirements of 

§ 7(b)(3), (5), & (6).

So ordered.