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SJC-13850
COMMONWEALTH vs. JAVAINE WATSON.
Suffolk. April 8, 2026. - July 9, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Homicide. Cellular Telephone. Evidence, Scientific test,
Identification, Presumptions and burden of proof.
Practice, Criminal, Postconviction relief, Presumptions and
burden of proof. Evidence, Relevancy and materiality.
Practice, Criminal, Discovery. Statute, Construction.
Identification. Words, "Evidence."
Indictment found and returned in the Superior Court Department on March 14, 2014.
Following review by this court, 487 Mass. 156 (2021), postconviction motions for scientific or forensic analysis, filed on May 1 and December 4, 2023, were heard by Michael J. Pineault, J.
A request for leave to appeal was allowed by Kafker, J., in the Supreme Judicial Court for the county of Suffolk.
Darcy Jordan, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, also present) for the Commonwealth.
Merritt Schnipper for the defendant.
M. Chris Fabricant, of New York, Claudia Leis Bolgen, Kevin S. Prussia, James M. Lyons, Kerry G. Matlack, Radha Natarajan, Katharine Naples-Mitchell, & Suma V. Nair, for Massachusetts
2
Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief.
WENDLANDT, J. General Laws c. 278A, inserted by St. 2012,
c. 38, "An Act providing access to forensic and scientific
analysis" (act), establishes a process, "separate from the trial
and any subsequent proceedings challenging an underlying
conviction, that permits forensic and scientific analysis of
evidence or biological material, the results of which could
support a motion for a new trial." Commonwealth v. Clark, 472
Mass. 120, 121-122 (2015). Because the Legislature intended "to
remedy the injustice of wrongful convictions," Commonwealth v.
Wade, 467 Mass. 496, 504 (2014) (Wade II), S.C., 475 Mass. 54
(2016) (Wade III), the act makes "postconviction forensic
testing easier and faster than it had been for defendants who
sought such testing in conjunction with motions for new trials
pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501
(2001)," Commonwealth v. Moffat, 478 Mass. 292, 301 (2017).
Accordingly, discovery under the act is governed by the
requirements set forth therein rather than by the standards for
a motion for a new trial under rule 30.
The Commonwealth contends that the defendant, Javine
Watson, was not entitled to discovery under the act because it
narrowly permits scientific testing of "physical" evidence for
biological material and the defendant requested digital forensic
3
analysis of a codefendant's cell phones. We disagree. Although
enacted "in the wake of a national recognition that
[deoxyribonucleic acid (DNA)] testing has an unparalleled
ability both to exonerate the wrongly convicted and to identify
the guilty" (quotation and citation omitted), Wade II, 467 Mass.
at 497, the act is not limited to scientific testing for
biological material. Instead, the act broadly permits a party
to seek "forensic or scientific analysis" of "evidence or
biological material," G. L. c. 278A, §§ 3, 7; the act defines
"analysis" as a "process by which a forensic or scientific
technique is applied to evidence or biological material." G. L.
c. 278A, § 1.
Consistent with this broad, remedial mandate, we have
recognized that the act permits postconviction testing of
biological material for DNA evidence, as well as other forensic
testing of clothing, shell casings, and ballistics for evidence
other than DNA. See, e.g., Commonwealth v. Jenks, 487 Mass.
1032, 1034-1036 (2021) (reversing denial of G. L. c. 278A motion
for testing of ballistics evidence for weights and diameters of
projectiles, land and grove impressions, and rifling system
direction); Commonwealth v. Williams, 481 Mass. 799, 803, 809
(2019) (reversing denial of G. L. c. 278A motion "requesting
that clothing recovered from the victim be tested for traces of
gunshot residue and that shell casings recovered at the crime
4
scene be tested for fingerprints"); Wade II, 467 Mass. at 497,
515 (reversing denial of G. L. c. 278A motion for DNA testing of
seminal fluid).
Concluding that the act permits digital forensic analysis
of a cell phone, and further concluding that the Superior Court
judge did not err in determining that the defendant showed by a
preponderance of the evidence that a reasonably effective
attorney would have sought the requested discovery and that the
anticipated analysis has the potential to unearth evidence that
is material to the defendant's identification as the perpetrator
of the crime in the underlying case, we affirm the judge's
allowance of the defendant's G. L. c. 278A motions.1
1. Background. We present the relevant factual background
from the trial record, reserving certain details for later
discussion.2
1 We acknowledge the amicus brief submitted by the Massachusetts Association of Criminal Defense Lawyers, the New England Innocence Project, the Criminal Justice Institute at Harvard Law School, the Innocence Project, the Innocence Network, and the Boston Bar Association.
2 The defendant was tried jointly alongside three codefendants -- Omar Bonner, Omar Denton, and Andrew Robertson. The evidence presented at trial is summarized in more detail in our decisions affirming the convictions of murder in the first degree for the defendant, Bonner, and Robertson. See Commonwealth v. Bonner, 489 Mass. 268, 269-275 (2022); Commonwealth v. Robertson, 489 Mass. 226, 227-229, cert. denied, 143 S. Ct. 498 (2022); Commonwealth v. Watson, 487 Mass. 156, 157-161 (2021).
5
In December 2013, the victim, Romeo McCubbin, was shot and
killed while sitting in his car after attending an event at a
nearby nightclub. The murder was captured by a surveillance
camera mounted to the exterior of a residence near the
nightclub; the surveillance video footage, in conjunction with
photographs from the nightclub event, placed the defendant's
codefendants -- Omar Bonner, Andrew Robertson, and Omar Denton
–- at the scene of the crime.
The footage showed a man, inferably Robertson, firing a
handgun about ten times into the front driver's side window of
the victim's car before fleeing the scene in a getaway vehicle
-- a red Lincoln MKX, which the prosecution asserted the
defendant was driving.3 The victim subsequently climbed over to
the passenger's side seat and rolled out of the passenger door
onto the sidewalk.
Roughly forty seconds after the first shooting, a second
person, inferably Denton, walked toward the victim and shot him
four times. A third person, inferably Bonner, accompanied
Denton and kicked the victim before leaving the scene.
About an hour after the murder, police officers discovered
the Lincoln, unoccupied and with the engine running, near where
two of the codefendants were arrested. Inside were keys to the
3 The video footage did not reveal the face of the driver of the Lincoln.
6
defendant's own car and to the back door of his home and a cell
phone with a number ending in 6426 (6426 number), which was
registered to the defendant's stepmother but used by the
defendant. Fingerprint analysis revealed the presence of the
defendant's and his codefendants' fingerprints throughout the
Lincoln. The defendant's fingerprints were found on the
vehicle's gearshift, outside driver's side door handle, inside
driver's side door handle, and front and rear passenger's side
doors.
Digital forensic analysis of the defendant's 6426 number
showed the codefendants' contact information and numerous
communications between the defendant's cell phone and the
codefendants' cell phones in the month preceding the murder,
including multiple calls on the days before and on the night of
the shooting. Listed in the defendant's cell phone was the
contact information for a phone number ending in 8764 (8764
number), which was registered to Robertson's former girlfriend.4
Digital forensic analysis of the 8764 number revealed that
in the month preceding the murder, the 8764 number had 203
contacts with the defendant's 6426 number and 312 contacts with
the cell phone of a key witness –- Nadira Amoroso; the
4 Robertson's former girlfriend testified at trial that she canceled service for the 8764 number in December 2013, the same month as the murder, at Robertson's request.
7
prosecution relied on Amoroso's testimony to show the
defendant's participation in the planning of the murder.
Specifically, Amoroso testified that she had been dating
the defendant at the time of the murder; that, prior to the
murder, the defendant had asked to borrow the Lincoln, which she
had rented; that she had seen the defendant at the nightclub
near the site of the shooting on the night of the murder;5 that
the morning after the murder, the defendant told her that he had
abandoned the vehicle in an unknown driveway, fearing that he
was being followed; and that during her relationship with the
defendant she contacted him on both the 6426 number and the 8764
number registered to Robertson's former girlfriend. At trial,
defense counsel maintained that Amoroso was in a relationship
with Robertson and that her testimony, including her assertion
that she had loaned the Lincoln to the defendant, was fabricated
to protect Robertson. To support this theory, counsel focused
on Amoroso's assertion that during her relationship with the
defendant she contacted him on the 8764 number registered to
Robertson's former girlfriend; specifically, counsel highlighted
5 At trial, Amoroso testified that she did not remember seeing the defendant at the nightclub near the scene of the murder and had mistakenly told the grand jury that she had witnessed him there; however, her grand jury testimony was admitted substantively at trial. See Commonwealth v. Daye, 393 Mass. 55, 73 (1984), overruled in part on other grounds by Commonwealth v. Cong Duc Le, 444 Mass. 431, 435-439 (2005).
8
that digital forensic analysis of the 8764 and 6426 numbers
revealed that in the month preceding the murder, there were
approximately 312 contacts between Amoroso's cell phone and the
8764 number registered to Robertson's former girlfriend, but
only one contact between Amoroso's cell phone and the
defendant's 6426 number.
When confronted with this extensive call history with the
8764 number, Amoroso dismissed counsel's suggestion that she was
speaking with Robertson rather than the defendant, testifying
that she did not know Robertson at all and could not identify
him in the court room. In closing, the prosecution also
combatted the defendant's theory that the 8764 number belonged
to Robertson, suggesting that the defendant and Robertson may
have been "changing up" their cell phones and highlighting
Amoroso's testimony, including her assertion that she contacted
the defendant on the 8764 number and that the defendant had two
cell phones. The jury convicted the defendant of murder in the
first degree on theories of deliberate premeditation and extreme
atrocity or cruelty. The defendant moved for judgment
notwithstanding the verdict on the grounds that "Amoroso
perjured herself and that the government was well aware of
that," as she "had no relationship with [the defendant]
whatsoever." The trial judge denied the motion. In April 2021,
9
we affirmed the defendant's conviction.6 See Commonwealth v.
Watson, 487 Mass. 156, 170 (2021).
2. G. L. c. 278A motions. In May 2023, the defendant
filed a motion pursuant to G. L. c. 278A, § 3, for forensic
analysis of three cell phones that police officers had seized
from Robertson following an unrelated incident in February 2014,
approximately two months after the victim's shooting. The
defendant had sought access to these same cell phones pretrial,
but his motions were denied,7 and the defendant did not appeal
from the trial judge's rulings.
In December 2023, the defendant filed a second motion
pursuant to G. L. c. 278A, § 3, seeking forensic analysis of two
additional cell phones that police officers had seized from
Robertson in connection with another unrelated crime, which
occurred in July 2013, approximately five months before the
6 The jury also convicted the defendant of being an accessory after the fact, which we vacated on direct appeal. Watson, 487 Mass. at 170.
7 In his pretrial motions, the defendant argued that the records from Robertson's three cell phones could reveal contacts, calls, and text messages showing that Amoroso and Robertson were in a relationship, arguably refuting Amoroso's grand jury testimony that she was in a relationship with the defendant and bolstering his defense that Amoroso provided false testimony about the defendant's involvement in the planning of the shooting in an attempt to protect Robertson. After a nonevidentiary hearing, the trial judge denied the defendant's motions on the grounds that the cell phones were seized during an unrelated investigation with no nexus to the victim's killing.
10
victim's shooting. Trial counsel had not sought access to these
two additional cell phones even though he knew that they were
available prior to trial. As the defendant had done in
connection with his pretrial motions for access to Robertson's
cell phones, see note 7, supra, the defendant asserted in his
c. 278A motions that digital forensic analysis of the now five
cell phones could yield evidence that Amoroso committed perjury
to protect Robertson, who the defendant alleged was her
boyfriend at the time of the murder.8
In April 2024, the motion judge, who was not the trial
judge, concluded that the defendant had met the threshold
showing required under G. L. c. 278A, § 3 (b), and scheduled an
evidentiary hearing to determine whether the defendant's request
also satisfied the requirements of G. L. c. 278A, § 7. In its
opposition, the Commonwealth argued that the phrase "forensic or
8 In support of his argument that the requested analysis was reasonably likely to produce evidence that Amoroso provided false testimony about contacting the defendant on the 8764 number registered to Robertson's former girlfriend, the defendant noted that in the month preceding the murder, the 8764 number not only had 312 contacts with Amoroso's number and 203 contacts with the defendant's 6426 number, but also 73, 276, and 224 respective contacts with three numbers belonging to women known to have dated Robertson. The defendant argued that, "[a]s a simple matter of physics," it would have been impossible for him to use the 8764 number to contact Amoroso roughly ten times per day during the month preceding the murder while Robertson also used it to communicate with his three girlfriends nearly twenty times per day and with the defendant six times per day over the same period.
11
scientific analysis," as used in the act, means the application
of "natural and physical sciences" to (1) "evidence in the case
that has already been tested" but should be retested "due to
advancements in scientific testing," or (2) "already collected
evidence that reasonably contains material suitable for
[scientific] testing." The Commonwealth contended that the
defendant's motions did not involve forensic analysis as "no
scientific principles" needed to "be applied to obtain the [cell
phones] or their records, or to identify, interpret, evaluate,
or understand the contents of those records." The Commonwealth
also contended that the defendant's request did not involve
"evidence" within the meaning of the act, as the defendant was
not seeking analysis of previously tested or already collected
evidence, but rather was seeking "the production of tangible
items ([cell phones]), and the production of documentary
evidence associated with those tangible items ([cell phone]
records)" (emphases in original); put differently, the
Commonwealth argued that the defendant was "asking for a means
to collect –- not analyze or test –- data from the phones."
At the evidentiary hearing, the sole witness was the
defendant's digital forensics expert. The expert testified that
digital forensic analysis of a cell phone is a multistep process
involving proper seizure of the physical device, overcoming
password protection to decrypt cell phone content, and
12
extracting and memorializing data from the device and any media
storage devices. The expert focused on digital forensic
techniques that can access password-protected cell phones
through "brute force" methodology and that can extract a wide
array of digital content, including user-deleted content, call
logs, text message logs, global positioning system (GPS)
coordinates, and encrypted data from user applications. The
expert noted that errors in the application of the forensic
techniques can cause loss of data; he testified that an analyst
should try to extract data from the cell phone as soon as the
device is powered on, as a device can start overwriting older
data once it is active.
Following the expert's testimony, in its posthearing
memorandum, the Commonwealth conceded that "digital forensic
analysis ([the defendant's expert's] field) is a type of
forensic science" and that "digital forensics involves
scientific expertise." Nonetheless, relying on Commonwealth v.
Cronin, 495 Mass. 170, 178-181 (2025), the Commonwealth argued
that the cell phone data extraction sought by the defendant
"falls outside the 'forensic analysis' contemplated by c. 278A"
because an extraction report "can be generated by a layperson
with basic training and read by anyone."
In May 2025, the judge allowed the defendant's motions for
forensic analysis of the five cell phones, concluding, inter
13
alia, that digital forensics falls within the scope of
"analysis" as defined in G. L. c. 278A, § 1, and that the
defendant had otherwise satisfied the requirements of G. L.
c. 278A, §§ 3 and 7. The Commonwealth appealed,9 and in November
2025, a single justice of this court allowed the Commonwealth's
petition under the gatekeeper provision of G. L. c. 278, § 33E.
3. Discussion. a. Standards of review. "We review a
question of statutory interpretation de novo." Wade III, 475
Mass. at 60. Because the motion judge was not the trial judge,
we also review de novo his rulings that the defendant satisfied
G. L. c. 278A, §§ 3 and 7, to the extent that the rulings were
based purely on the documentary record, see Wade II, 467 Mass.
at 506; we defer to the judge's findings of fact based on the
defendant's expert's testimony unless they are clearly
erroneous, see Commonwealth v. Cadet, 473 Mass. 173, 179 (2015)
("A reviewing court accepts the motion judge's findings of fact,
made after an evidentiary hearing, if they are supported by the
record, and defers to the judge's assessments of credibility
. . ." [citation omitted]).
9 Robertson opposed the defendant's G. L. c. 278A motions, arguing, inter alia, that the defendant was not entitled to analyze the five seized cell phones because he still had a privacy interest in them. The motion judge rejected Robertson's arguments. Robertson did not appeal from the judge's order or otherwise participate in the present appeal.
14
b. Scope of permissible "analysis." On appeal, the
Commonwealth does not press precisely the same arguments it
marshalled before the motion judge. Instead, it principally
contends that the term "analysis" as used in the act is limited
to "laboratory testing" of what it describes as "physical
evidence," which it further asserts is limited to "tangible
evidence capable of being handled, preserved, consumed,
degraded, or destroyed" during testing. At oral argument, the
Commonwealth further clarified its position, contending that
G. L. c. 278A is limited to "physical, tangible evidence that's
capable of being tested for biological material," such as a
"bloody sock" onto which a biological specimen has been
deposited.10
10"Ordinarily, the failure to raise a legal argument at the trial level results in its waiver." Luppold v. Hanlon, 495 Mass. 148, 165-166 (2025). However, because here the Commonwealth's principal argument on appeal is essentially an extension of its earlier assertions that the sought discovery does not fall within the act, as it does not involve application of "natural and physical sciences" to "analyze or test" the sought evidence, and because the issue presented is purely a legal one of statutory construction, we reach the merits. See Commonwealth v. Powell, 468 Mass. 272, 275 n.5 (2014) ("The Commonwealth's over-all challenge to the . . . rule is essentially an extension of its assertion that the . . . rule is limited in scope. . . . We therefore do not consider the argument waived"). Cf. LaChance v. Commonwealth, 437 Mass. 1013, 1014 (2002) (declining to reach issues raised for first time on appeal where record was "lacking . . . in providing a basis for their intelligent resolution" [citation omitted]).
15
Consideration of the Commonwealth's arguments requires us
to determine whether digital forensic analysis of a cell phone
involves "analysis" as defined under the act. "[A] statute must
be interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary and
approved usage of the language, considered in connection with
the cause of its enactment, the mischief or imperfection to be
remedied and the main object to be accomplished" (citation
omitted). Matter of the Estate of Mason, 493 Mass. 148, 151
(2023). We begin "our analysis . . . with the principal source
of insight into legislative intent –- the plain language of the
statute." Gravito v. Commonwealth, 496 Mass. 756, 759 (2025),
quoting Patel v. 7-Eleven, Inc., 489 Mass. 356, 362 (2022),
S.C., 494 Mass. 562 (2024). "If the statutory language is clear
and unambiguous, it is conclusive as to legislative intent"
(quotation omitted). Gravito, supra, quoting Patel, supra.
In construing the plain language, "we must strive to give
effect to each word . . . so that no part will be inoperative or
superfluous" (citation omitted). Commonwealth v. Fleury, 489
Mass. 421, 427 (2022). And "[i]f the words used are not
otherwise defined . . . , we afford them their plain and
ordinary meaning." Matter of E.C., 479 Mass. 113, 118 (2018).
Here, the Legislature defined the term "analysis" as "the
process by which a forensic or scientific technique is applied
16
to evidence or biological material to identify the perpetrator
of a crime." G. L. c. 278A, § 1. The Legislature did not
define the terms "forensic or scientific technique" or
"evidence." Accordingly, we turn to consider whether digital
forensic analysis of a cell phone involves application of a
"forensic or scientific technique" to "evidence," applying the
terms' plain and ordinary meanings consistent with legislative
intent.
i. Forensic or scientific technique. We need not dwell
long on the question whether digital extraction of data on the
sought cell phones, as described by the defendant's expert,
involves the application of a "forensic or scientific technique"
because the Commonwealth conceded that "digital forensic
analysis" of the type contemplated by the defendant's expert is
a type of "forensic science" involving "scientific expertise."
The Commonwealth presses the argument that, despite its
concession, our decision in Cronin, 495 Mass. at 178-181,
compels a contrary conclusion. We disagree.
In Cronin, 495 Mass. at 178-179, we concluded that a lay
witness, such as a police officer trained in the proper use of a
digital forensics tool, can testify to the steps he or she
personally performed to obtain an extraction report using the
tool. We did not consider the act, much less the question
whether cell phone extraction involves application of forensic
17
or scientific techniques. Indeed, we cautioned that such a lay
witness could not attest to the tool's reliability and accuracy.
Id. at 180. This is because such testimony requires expertise
about the underlying forensic and scientific techniques embedded
in the tool that permit retrieval of digital data from the cell
phone. Id. Our careful delineation between a lay witness
trained to use the tool, on the one hand, and an expert in
digital forensics with specialized knowledge as to the
reliability and accuracy of the forensic and scientific
techniques in the tool, on the other hand, does not support the
Commonwealth's claim. Accordingly, we conclude, consistent with
the defendant's expert's testimony, that digital extraction of
cell phone data involves application of a forensic or scientific
technique.11
ii. Evidence. We next consider the Commonwealth's
principal argument on appeal -- that the requested digital
11To the extent the Commonwealth contends that forensic or scientific techniques are limited to "laboratory testing," the claim is entirely undeveloped and does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Further, limiting the act's permissible "forensic or scientific technique[s]" to those that occur in a "laboratory," a term undefined by the Commonwealth, finds no basis in the words of the act or the act's broad remedial purposes. See Commonwealth v. Ramos, 490 Mass. 818, 824 (2022) ("As a broad interpretation of c. 278A aligns with the remedial nature of the statute, we generally have construed the language of [the act] . . . in a manner that is generous to the moving party" [quotation, citation, and alteration omitted]).
18
forensic analysis does not involve "evidence" as that term is
used in the act. The Legislature did not define the term
"evidence," and thus we are guided by its plain and ordinary
meaning. See Matter of E.C., 479 Mass. at 118. Specifically,
evidence ordinarily includes objects "that tend[] to prove or
disprove the existence of an alleged fact."12 Black's Law
Dictionary 696 (12th ed. 2024). See Black's Law Dictionary 635
(9th ed. 2009) (same); Merriam-Webster's Collegiate Dictionary
565 (12th ed. 2026) (defining evidence as "something [as
testimony, a writing, or an object] submitted at a judicial or
administrative proceeding for the purpose of proving a party's
case"); American Heritage Dictionary of the English Language 616
(5th ed. 2018) (defining evidence as "[a] thing or set of things
helpful in forming a conclusion or judgment").
The sought cell phones and their digital contents, which
include, inter alia, call logs, text message logs, location
information, and information from cell phone applications, fall
comfortably within the scope of "evidence." See, e.g.,
Commonwealth v. Carleton, 497 Mass. 11, 27-28 (2026)
(considering as evidence photographs retrieved using digital
12Notably, the act does not apply to all evidence; the "evidence" must be of a type as to which a forensic or scientific technique may be applied. See G. L. c. 278A, § 1. The sought discovery must also meet the other requirements of the act. See, e.g., G. L. c. 278A, §§ 3, 7.
19
forensic software that "locate[d] the code necessary to unlock
the cell phone" and then "read the files extracted from the cell
phone"); Cronin, 495 Mass. at 175 ("Commonwealth . . . entered
in evidence fifteen images that [a police officer] had extracted
from the defendant's cell phone" using digital forensics tool
[emphasis added]); Commonwealth v. Woollam, 478 Mass. 493, 498-499 (2017), cert. denied, 584 U.S. 944 (2018) (upholding
admissibility of evidence, including "cell phone records, . . .
records of call metadata, text messages, and a summary chart"
[footnote omitted]). In fact, the Commonwealth introduced cell
phones and cell phone data extraction reports as evidence in
connection with the defendant's underlying conviction.
The Commonwealth's argument that the "structure" of G. L.
c. 278A "presupposes" that "evidence" consists of "tangible
evidence capable of being handled, preserved, consumed,
degraded, or destroyed" by testing and thus (according to the
Commonwealth13) does not encompass a cell phone or its digital
13It is not apparent that the Commonwealth's assertions are grounded in any scientific principles. The defendant's expert testified that digital forensics involves "handling" the physical, tangible cell phones, as well as any attached physical, tangible media storage devices, like subscriber identity module (SIM) cards and secure digital (SD) cards, and "preserving" the content that is extracted from those physical, tangible devices. The expert also testified that preservation of the data required proper application of techniques and that improper handling of the physical devices could result in overwriting, modification, or destruction of data. The Commonwealth leaves unexplained the scientific basis for its
20
contents, as well as its further contention that "evidence" is
limited to items containing biological specimens, ignores that
the act uses the term "evidence" without the additional features
fashioned to it by the Commonwealth. See Wade III, 475 Mass. at
63 ("We do not read into the [act] a provision which the
Legislature did not see fit to put there, nor add words that the
Legislature had the option to, but chose not to include"
[citation omitted]).
Nor does the Commonwealth's construction of "evidence" find
support in G. L. c. 278A, § 8. Section 8 sets forth the
standards for conducting analysis of "evidence or biological
material," including protocols for, inter alia, protecting the
integrity of the tested item, using accredited forensic services
providers, and preserving the tested item for replicate
analysis, where possible. None of these standards demonstrates
that the defendant's requested digital forensic analysis falls
outside the act's permitted analysis. Indeed, G. L. c. 278A,
§ 8, like the other sections of the act, uses the term
position that DNA extracted from a physical item, such as a bloody sock, is any more "physical" than the data extracted from a cell phone. Cf. 1 M.R. Arkfeld, Electronic Discovery and Evidence § 2.5(F) (2025) (listing types of data stored on cell phones and external media storage devices, including call logs, pictures, and GPS location data); Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 4 Nw. J. Tech. & Intell. Prop. 171, 174 (2006) ("electronically stored information is replicated on media in various physical locations").
21
"evidence" without affixing the limitations posited by the
Commonwealth.
To the extent the Commonwealth's position is that the act
is limited to testing for DNA or similar biological evidence, we
disagree. The act contemplates the application of forensic or
scientific techniques to "evidence or biological material"
(emphasis added). G. L. c. 278A, § 1. The disjunctive "or"
indicates that "evidence" is not "biological material," which
the act separately defines as "a sexual assault forensic
examination kit, semen, blood, saliva, hair, skin tissue or
other identified biological substance." Id. See Wade III, 475
Mass. at 61 ("The word 'or' is given a disjunctive meaning
unless the context and the main purpose of all the words demand
otherwise" [citation omitted]). Reading "evidence" as limited
to items that can be tested for biological specimens would
render the defined term "biological material" largely
superfluous. See Fleury, 489 Mass. at 427. It would also run
counter to our decisions allowing postconviction testing of
other types of nonbiological material. See, e.g., Jenks, 487
Mass. at 1034-1036 (testing of ballistics evidence for weight,
dimensions, and rifling system direction); Williams, 481 Mass.
at 803, 809 (testing of gunshot residue on clothing and
fingerprints on shell cases).
22
The Commonwealth's reliance on the act's legislative
history is misplaced. To begin, ordinarily where "the words of
the statute are unambiguous, we need not consult its legislative
history." Garcia v. Steele, 492 Mass. 322, 328 n.7 (2023). The
Legislature deliberately chose to permit forensic analysis of
"evidence or biological material." G. L. c. 278A. §§ 3, 7.
Notably, the Commonwealth was the forty-ninth State to
enact legislation allowing for postconviction testing. See Wade
II, 467 Mass. at 509 & n.15. In determining to permit
postconviction analysis using forensic or scientific techniques
applied to "evidence" or "biological materials," the Legislature
chose to enact a broader remedial scheme rather than adopt the
more limited enactments from other States, which expressly
limited postconviction discovery to DNA testing of biological
material.14 See id. at 509 (noting that Massachusetts, as fortyninth State to enact postconviction testing law, "set[] a far
14See, e.g., Cal. Penal Code § 1405(a) ("A person who was convicted of a felony and is currently serving a term of imprisonment may make a written motion . . . for performance of forensic [DNA] testing"); Colo. Rev. Stat. § 18-1-412(1) ("An eligible person may apply at any time to the district court in the district where the conviction was secured for DNA testing concerning the conviction and sentence"); N.C. Gen. Stat. § 15A269(a) ("A defendant may make a motion before the trial court that entered the judgment of conviction against the defendant for performance of DNA testing . . .").
23
lower bar for access to scientific testing than that required by
similar statutes in other States").
The Commonwealth posits that if digital forensic analysis
of cell phones is permitted by the act, "every few weeks, [a]
defendant would meet the requirements of G. L. c. 278A and the
cell phones could arguably be re-extracted in perpetuity"
because digital forensic technologies may be updated
periodically. The concern is overstated. As we have concluded
previously, to re-analyze evidence using an updated forensic or
scientific technique, the moving party must show "a material
improvement over any previously conducted analysis in accurately
identifying or excluding the [moving] party as the perpetrator
of the crime." Commonwealth v. Donald, 468 Mass. 37, 44 (2014),
S.C., 487 Mass. 1036 (2021). The moving party seeking to reanalyze the same evidence must also satisfy all the other
requirements of G. L. c. 278A.15 See id. at 47-48 (affirming
15For example, a party seeking digital forensic analysis must show, as discussed infra, 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. G. L. c. 278A, § 7 (b) (4). See, e.g., Moffat, 478 Mass. at 300-301 (G. L. c. 278A motion for DNA testing of four cigarette butts found on public road in vicinity of crime scene properly denied where testing did not have potential to reveal evidence material to identifying perpetrator of crime given there was nothing to indicate when cigarette butts might have been deposited and no witness mentioned cigarette smoking).
24
denial of G. L. c. 278A motion where defendant could show
requested re-analysis using new method offered "material
improvement," but failed to satisfy G. L. c. 278A, § 3 [b] [5]).
c. Allowance of motion. i. Reasonably effective counsel.
The Commonwealth next maintains that the defendant is not
entitled to the requested analysis because he did not satisfy
G. L. c. 278A, § 7 (b) (3), which required that the defendant
show by a preponderance of the evidence "that the evidence or
biological material [the defendant seeks to analyze] has not
been subjected to the requested analysis for any of the reasons"
enumerated in G. L. c. 278A, § 3 (b) (5).16 The motion judge
16The five reasons enumerated in G. L. c. 278A,
§ 3 (b) (5), for not having previously conducted the requested analysis are as follows:
"(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
25
determined that the defendant had satisfied G. L. c. 278A,
§ 3 (b) (5) (iv),17 because a "reasonably effective attorney
would have sought the analysis" of Robertson's five cell phones,
trial counsel "failed to seek the analysis" for two of the cell
phones, and trial counsel did seek the now-requested analysis
for three of the cell phones, but "the judge denied the
request." G. L. c. 278A, § 3 (b) (5) (iv).
The Commonwealth does not contest the motion judge's
findings, which are amply supported by the record. The
defendant's principal defense at trial was that Amoroso, who
provided key testimony linking the defendant to planning the
shooting, provided false testimony against the defendant to
protect Robertson, with whom she was in a relationship.
Examining the five cell phones, which were known to belong to
Robertson in the months immediately before and immediately after
the murder, to uncover information connecting Amoroso and
Robertson and thus potentially undermine Amoroso's testimony
that she did not know (or even recognize) Robertson, falls
"(v) the evidence or biological material was otherwise
unavailable at the time of the conviction."
17The motion judge also found that the defendant satisfied G. L. c. 278A, § 3 (b) (5) (i). Because a defendant need only show that the requested analysis was not previously performed because of one of the five enumerated reasons set forth in 3 (b) (5), we need not review the judge's conclusion as to that prong. See Wade III, 475 Mass. at 61.
26
squarely within a strategy that a reasonably effective trial
counsel would have employed. See Wade II, 467 Mass. at 511
(G. L. c. 278A, § 3 [b] [5] [iv], does not "import[] the
standard of ineffective assistance of counsel"; defendant need
only show that "'a' reasonably effective attorney would have
sought the requested analysis, not that every reasonably
effective attorney would have done so" [emphases in original]).
See also Commonwealth v. Ramos, 490 Mass. 818, 828 (2022) ("a
reasonably effective attorney would have requested the DNA
testing in light of the fact that it potentially could
corroborate the testimony of the lone defense witness and
contradict the Commonwealth's argument").
Instead, the Commonwealth argues that the motion judge
erred because G. L. c. 278A, § 3 (b) (5) (iv), should be read to
apply only when the defendant's earlier motion for the same
analysis was denied on the grounds that the results were
inadmissible in the courts of the Commonwealth at the time. The
argument confuses G. L. c. 278A, § 3 (b) (5) (iv), with G. L.
c. 278A, § 3 (b) (5) (ii), which expressly provides as an
independent basis for relief that "the results of the requested
analysis were not admissible in the courts of the commonwealth
at the time of the conviction." We are not at liberty to add
this limitation, which is absent from prong (iv) and which would
render superfluous the separate basis for relief under prong
27
(ii). See Tze-kit Mui v. Massachusetts Port Auth., 478 Mass.
710, 712 (2018) ("ordinarily we will not add language to a
statute where the Legislature itself has not done so"). See
also A. Scalia & B.A. Garner, Reading Law: The Interpretation
of Legal Texts 174 (2012) ("If possible, every word and every
provision is to be given effect . . . . None should be ignored.
None should needlessly be given an interpretation that causes it
to duplicate another provision or to have no consequence").18
ii. Analysis material to identification. The Commonwealth
further maintains that the motion judge erred in concluding that
the defendant satisfied G. L. c. 278A, § 7 (b) (4), which
required the defendant to show by a preponderance of the
evidence that the requested forensic analysis "has the potential
to result in evidence that is material to the [defendant's]
identification as the perpetrator of the crime in the underlying
case." Evidence is "material" within the meaning of G. L.
c. 278A, § 7 (b) (4), when it "is of significance to the moving
party's identification as the perpetrator of the crime"; this
includes evidence that "would tend to support" the defendant's
18The Commonwealth's additional argument that the defendant waived his right to analyze the five cell phones pursuant to G. L. c. 278A because he failed to appeal from the denial of his pretrial motion for access to three of the cell phones is contrary to the express language of the act. See G. L. c. 278A, § 15 ("The right to file a motion under this chapter shall not be waived").
28
theory of defense and "challenge the Commonwealth's account of
the sequence of events." Ramos, 490 Mass. at 825, 827-828.
Here, records show hundreds of calls between the 8764
number -- the cell phone number registered to Robertson's former
girlfriend, which Robertson had canceled following the murder
and which plausibly was being used by Robertson -- and at least
three women with whom Robertson had a relationship. Trial
counsel relied on these records to mount the defendant's
principal defense –- that Amoroso, the only witness to testify
that the defendant knowingly participated in an advanced plan to
kill the victim by borrowing the Lincoln, fabricated her
testimony to protect Robertson. The requested discovery, which
may reveal contacts between Robertson and Amoroso on his other
cell phones in the months preceding and following the murder,
thus has the potential to uncover communications between
Robertson and Amoroso, see Clark, 472 Mass. at 135-136
("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"), and those potential communications would bolster the
defendant's defense by showing that Amoroso committed perjury in
stating that she did not know Robertson and could not identify
him; evidence of her perjury would in turn cast doubt on her
29
testimony as a whole –- testimony the prosecution relied on in
advancing its theory that the defendant was an active
participant in the planning of the murder. Indeed, in closing,
the prosecution emphasized Amoroso's testimony to argue that the
defendant was "the driver of that [Lincoln] MKX," including her
assertion that she contacted the defendant on the 8764 number,
that the defendant had two cell phones, and that he borrowed the
Lincoln from her prior to the murder.
Thus, contrary to the Commonwealth's contentions, the
requested analysis would not provide "mere" impeachment
evidence. Evidence that Amoroso and the defendant did not in
fact have numerous telephone calls together would "challenge the
Commonwealth's account of the sequence of events" -- namely,
that the defendant was a full participant in the advanced
planning of the murder, including by asking Amoroso if he could
borrow the Lincoln, which the Commonwealth alleged the defendant
used to bring Robertson to the location of the shooting and then
assist Robertson in fleeing the scene. Ramos, 490 Mass. at 828.
See Watson, 487 Mass. at 162 ("For murder in the first degree
both under the theory of deliberate premeditation and under the
theory of extreme atrocity or cruelty, to prove the defendant
guilty as a joint venturer, the Commonwealth had to prove beyond
a reasonable doubt that the defendant knowingly participated in
the commission of the crime charged, and that the defendant had
30
or shared the required criminal intent" [quotations and citation
omitted; emphasis added]).
The Commonwealth claims that the discovery of
communications between Amoroso and Robertson would not be
"material" to identifying the defendant as required by the act
because other evidence implicated him in the joint venture –-specifically, the presence of his fingerprints and personal
belongings in the Lincoln, and the call logs showing numerous
contacts between him and his codefendants in the month leading
up to the murder and on the night of the murder. That other
evidence may pose a challenge for the defendant to successfully
move for a new trial, see Commonwealth v. Gaines, 494 Mass. 525,
539 (2024), but it does not govern his ability to access
discovery under the act, which was intended to "provide
increased and expeditious access to scientific or forensic
testing," "the results of which subsequently might support a
motion for a new trial," Wade II, 467 Mass. at 505, 509. See
Ramos, 490 Mass. at 824 ("we have emphasized that defendants
need not demonstrate that the requested testing could result in
evidence that would justify a new trial"); Commonwealth v.
Linton, 483 Mass. 227, 242 (2019) ("The requirements of G. L.
c. 278A are, by design, less stringent than a motion for a new
trial pursuant to Mass. R. Crim. P. 30"). See also Commonwealth
v. Steadman, 489 Mass. 372, 389 (2022) ("moving party need only
31
show that the required analysis could be material to the
question of . . . identity, and not whether it would have had
any effect on the underlying conviction" [emphases in original;
quotations and citation omitted]); Clark, 472 Mass. at 136
(evidence may be material under act even in "the presence of
overwhelming evidence of guilt in the underlying trial"
[citation omitted]).19
4. Conclusion. For the foregoing reasons, we affirm the
allowance of the defendant's motions for postconviction forensic
analysis under G. L. c. 278A.
So ordered.
19Construing the act to permit the discovery requested here does not impermissibly "allow[] the defendant to bypass the limits of [Mass. R. Crim. P. 30]," as the Commonwealth contends. "In enacting G. L. c. 278A, the Legislature separated the procedure for seeking forensic testing from the procedure for seeking scientific testing in conjunction with a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), and intended that G. L. c. 278A provide increased and expeditious access to scientific or forensic testing" (emphases added). Wade II, 467 Mass. at 509. Should the sought discovery prove fruitful, the defendant will need to meet the requirements of rule 30 to obtain a new trial.