Commonwealth v. Wade (Lawyers Weekly No. 10-045-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC‑11506 COMMONWEALTH vs. ROBERT D. WADE. Plymouth. November 4, 2013. ‑ March 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Deoxyribonucleic Acid. Statute, Construction. Evidence, Presumptions and burden of proof, Exculpatory, Scientific test, Expert opinion. Practice, Criminal, Presumptions and burden of proof, Affidavit, Assistance of counsel, Capital case. Homicide. Felony‑Murder Rule. Rape. Indictment found and returned in the Superior Court Department on December 6, 1993. Following review by this court, 428 Mass. 147 (1998), a motion for deoxyribonucleic acid testing, filed on March 26, 2012, was considered by Raymond P. Veary, Jr., J., and a renewed motion for such testing, filed on October 15, 2012, was considered by Joseph M. Walker, III, J. A request for leave to appeal was allowed by Lenk, J., in the Supreme Judicial Court for the county of Suffolk. Janet Hetherwick Pumphrey for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. William M. Taylor, for The Innocence Network, amicus curiae, submitted a brief. DUFFLY, J. On September 8, 1997, a Superior Court jury convicted Robert D. Wade of murder in the first degree on a theory of felony-murder and aggravated rape. On direct appeal, the conviction of murder was affirmed and the conviction of aggravated rape was vacated as duplicative. See Commonwealth v. Wade, 428 Mass. 147, 155 (1998). Since at least December, 2002, Wade has sought unsuccessfully to obtain deoxyribonucleic acid (DNA) testing of the physical evidence that was used to support the expert opinion evidence introduced at trial.[1] In 2012, the Legislature enacted G. L. c. 278A, “An Act providing access to forensic and scientific analysis” (act). See St. 2012, c. 38. The enactment, which occurred in the wake of national recognition that “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009), permits access to forensic and scientific evidence on the filing of a motion by an individual who has been convicted of a criminal offense, who consequently has been incarcerated, and who asserts factual innocence. See G. L. c. 278A, § 2. On March 26, 2012, Wade filed a motion and affidavit pursuant to G. L. c. 278A, § 3 (§ 3 motion). The motion asserts […]