Commonwealth v. Clark

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SJC-11815

COMMONWEALTH vs. TYRONE J. CLARK.

Suffolk. March 2, 2015. - July 9, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Deoxyribonucleic Acid. Evidence, Scientific test, Exculpatory,
Relevancy and materiality. Statute, Construction.
Practice, Criminal, Postconviction relief, Discovery.

Indictments found and returned in the Superior Court on
August 10, 1973.

A postconviction motion for scientific or forensic
analysis, filed on August 5, 2013, was heard by Thomas A.
Connor, J.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Neil D. Raphael for Tyrone J. Clark.
Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.
Lisa M. Kavanaugh & Ira L. Gant, Committee for Public
Counsel Services, & Denise McWilliams & Chauncey B. Wood, for
Committee for Public Counsel Services Innocence Program &
others, amici curiae, submitted a brief.
 2

SPINA, J. On January 23, 1974, a Suffolk County jury

convicted Tyrone J. Clark of rape, G. L. c. 265, § 22; unarmed

robbery, G. L. c. 265, § 19; and kidnapping, G. L. c. 265, § 26.

The Appeals Court affirmed the convictions in a published

opinion. See Commonwealth v. Clark, 3 Mass. App. Ct. 481

(1975). On January 14, 2000, he filed a motion for a new trial,

which was denied. Clark was paroled in 2005, but his parole was

revoked when he pleaded guilty on May 25, 2006, to larceny over

$250, G. L. c. 266, § 30 (1).

In 2012, the Legislature enacted G. L. c. 278A, "An Act

providing access to forensic and scientific analysis" (act).

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." Commonwealth v. Wade, 467 Mass. 496, 497 (2014).

See G. L. c. 278A, § 2. The purpose of the act was "to remedy

the injustice of wrongful convictions of factually innocent

persons by allowing access to analyses of biological material

with newer forensic and scientific techniques . . . [that]
 3

provide a more reliable basis for establishing a factually

correct verdict than the evidence available at the time of the

original conviction." Wade, supra at 504, quoting 2011 Senate

Doc. No. 753 and 2011 House Doc. No. 2165. The act created 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. See

G. L. c. 278A, §§ 3, 6, 7; Wade, supra at 505.

On August 5, 2013, Clark filed in the Superior Court a

postconviction motion pursuant to G. L. c. 278A, § 3 (§ 3

motion), for forensic or scientific analysis of certain evidence

presented at his trial, and for discovery regarding the location

of other items that were referenced at trial but not admitted in

evidence. More specifically, he sought deoxyribonucleic acid

(DNA) testing of the handle of a kitchen knife that the victim

purportedly grabbed from her assailant and stabbed into the

assailant's shoulder. He also sought discovery concerning the

victim's bloody clothing, a bloody towel, and a pair of men's

socks, all of which, in Clark's view, might contain DNA evidence

and should be made available to him for potential testing under

G. L. c. 278A. In connection with his § 3 motion, Clark filed

an affidavit stating that he is factually innocent of the crimes

of which he was convicted. The Commonwealth opposed Clark's
 4

motion, contending that Clark had not shown how forensic testing

of the knife handle would provide evidence material to the

identification of the perpetrator of the crimes, that Clark had

shown no chain of custody for the knife handle, that the jurors

had based their verdicts on compelling identification evidence,

and that the Commonwealth did not possess any of the items for

which Clark sought discovery. Following a hearing, a judge, who

was not the trial judge, denied Clark's § 3 motion.1

Clark appealed the judge's order,2 the case was entered in

the Appeals Court, and we transferred it to this court on our

own motion. Clark contends on appeal that the judge

misinterpreted the requirements for postconviction DNA analysis

as set forth in the plain language of G. L. c. 278A and,

consequently, erred in denying his motion for such testing and

for related discovery. For the reasons that follow, we conclude

that Clark met the requirements of G. L. c. 278A, § 3; that the

judge erred in determining that Clark was required to establish

the existence of biological material on the handle of the knife;

that the judge properly denied Clark's request for discovery;

1
At the time the judge ruled on Tyrone J. Clark's motion
pursuant to G. L. c. 278A, he did not have the benefit of our
decision in Commonwealth v. Wade, 467 Mass. 496 (2014), which is
discussed in the statutory framework portion of this opinion.
2
General Laws c. 278A, § 18, provides that "[a]n order
allowing or denying a motion for forensic or scientific analysis
filed under this chapter shall be a final and appealable order."
 5

and that the judge must make findings of fact and conclusions of

law regarding whether Clark satisfied G. L. c. 278A,

§ 7 (b) (2), (3), (5), and (6). Accordingly, we reverse the

judge's order denying Clark's § 3 motion, and remand for further

proceedings consistent with this opinion.3

1. Statutory framework. Before setting forth the

underlying facts in this case, we begin with an overview of

G. L. c. 278A, so as to put the present proceedings in context.

In Wade, a case that raised issues of first impression regarding

the proper interpretation of G. L. c. 278A, this court

considered the threshold requirements that must be met by a

party seeking forensic or scientific analysis pursuant to § 3,

and articulated the standard of review for determining whether

those requirements have been satisfied. See Wade, 467 Mass. at

501-506. We stated that G. L. c. 278A "creates a two-step

procedure for requesting DNA testing or analysis. First, a

threshold determination is made by the court in which the

conviction was entered as to whether the motion meets the

preliminary criteria set forth in G. L. c. 278A, § 3. If those

criteria are met, a hearing 'shall' be conducted pursuant to

G. L. c. 278A, §§ 6 and 7, to determine whether a petitioner has

3
We acknowledge the amicus brief submitted in support of
Clark by the Committee for Public Counsel Services Innocence
Program, New England Innocence Project, Innocence Network, and
Massachusetts Association of Criminal Defense Lawyers.
 6

established by a preponderance of the evidence sufficient facts

for a judge to order DNA testing or further discovery." Id. at

501.

With respect to the threshold inquiry, a person seeking

relief under G. L. c. 278A shall file a motion that includes all

of the information set forth in § 3 (b),4 and, "when relevant,

shall include specific references to the record in the

underlying case," or to supporting affidavits "signed by a

4
General Laws c. 278A, § 3 (b), provides that the motion
shall include the following information:

"(1) the name and a description of the requested forensic
or scientific analysis;

"(2) information demonstrating that the requested analysis
is admissible as evidence in courts of the commonwealth;

"(3) a description of the evidence or biological material
that the moving party seeks to have analyzed or tested,
including its location and chain of custody if known;

"(4) information demonstrating that the 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; and

"(5) information demonstrating that the evidence or
biological material has not been subjected to the requested
analysis because [of one of five reasons enumerated in
G. L. c. 278A, § 3 (b) (5)]."

Pursuant to G. L. c. 278A, § 3 (c), "[i]f the moving party is
unable to include for filing with the motion any of the items or
information described in subsection (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."
 7

person with personal knowledge of the factual basis of the

motion." G. L. c. 278A, § 3 (b). Accompanying the motion shall

be "an affidavit stating that the moving party is factually

innocent of the offense of conviction and that the requested

forensic or scientific analysis will support the claim of

innocence." Id. at § 3 (d). The Commonwealth "may provide a

response to the motion, to assist the court in considering

whether the motion meets the requirements [of § 3]." Id. at

§ 3 (e). Then, a judge shall review the motion expeditiously

and "shall dismiss, without prejudice, any such motion without a

hearing if the court determines, based on the information

contained in the motion, that the motion does not meet the

requirements set forth in [§ 3]." Id. The court "shall notify"

the parties as to whether the motion is dismissed, or whether it

is sufficient to proceed to the next level of review under § 7.

Id.

The threshold inquiry made pursuant to § 3 is "limited,

based primarily on the moving party's filings, and . . .

essentially nonadversarial." Wade, 467 Mass. at 503. At this

first stage, "a moving party is not required to 'establish any

of the [statutory] factors' alleged in the § 3 motion." Id. at

503-504, quoting G. L. c. 278A, § 3 (c). See Commonwealth v.

Donald, 468 Mass. 37, 41 (2014) ("a moving party is required

only to point to the existence of specific information that
 8

satisfies the statutory requirements"). "Viewed in light of the

act as a whole, the Legislature clearly intended that, to

proceed to a hearing, a § 3 motion requires only the limited

showing set forth explicitly in G. L. c. 278A, § 3 (b) and (d),

and review of the motion in order to determine whether a hearing

will be conducted is confined to the assertions in the motion,

the affidavits and supporting documents attached thereto, and

any response that may be filed by the Commonwealth to assist the

court." Wade, supra at 504. A judge conducting an inquiry

under § 3 "is not called upon to make credibility

determinations, or to consider the relative weight of the

evidence or the strength of the case presented against the

moving party at trial." Id. at 505-506.

If a motion meets the requirements of § 3, then a judge

"shall order a hearing on the motion." G. L. c. 278A, § 6 (a).

The Commonwealth "shall file a response with the court within

[sixty] days" after the court issues notice of further

proceedings, id. at § 4 (b), and "shall include any specific

legal or factual objections" it may have "to the requested

analysis." Id. at § 4 (c). After reviewing the motion,

together with the Commonwealth's response, and holding the

requisite hearing, the judge shall determine whether the moving

party has demonstrated, by a preponderance of the evidence, all
 9

of the criteria set forth in G. L. c. 278A, § 7 (b).5 See id. at

§ 7 (a), (b). If the moving party has done so, then the judge

"shall allow the requested forensic or scientific analysis."6

Id. at § 7 (b). The judge is required to "state findings of

fact and conclusions of law on the record," or issue written

findings and conclusions "that support the decision to allow or

deny [the] motion brought under [§] 3." Id. at § 7 (a). In

5
General Laws c. 278A, § 7 (b), provides that the moving
party shall demonstrate the following criteria by a
preponderance of the evidence:

"(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;

"(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)];

"(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."
6
Where forensic or scientific analysis is allowed, G. L.
c. 278A, § 8, sets forth the conditions by which such analysis
should proceed.
 10

addition, the judge may authorize discovery, as appropriate,

pursuant to G. L. c. 278A, § 7 (c).

2. Factual and procedural background. We rely on the

facts set forth in Clark, 3 Mass. App. Ct. at 482-484, and in

the judge's memorandum of decision denying Clark's § 3 motion.

On the afternoon of June 23, 1973, the victim, a twenty-

three year old woman, was returning to her apartment on Park

Drive in Boston from a shopping trip. As she approached the

door to her building, an assailant grabbed her from behind,

followed her into the vestibule, struck her, and demanded her

money. The assailant forced the victim upstairs to her

apartment. After entering the apartment, he pulled the victim

into the kitchen, took a knife from a drawer, and then dragged

her into the bedroom where he repeatedly struck her in the face,

told her to undress, and brutally raped her. At one point

during this assault, the victim wrested the knife from her

assailant's grip and "attempted to stab him in the back,"

striking him in the shoulder. The blade of the knife broke off

during the struggle.7

After this initial attack, the assailant ordered the victim

to get dressed and come with him. The victim put on her clothes

7
Photographs of the knife show that a small portion of the
base of the blade remains attached to the handle. When we speak
about the knife handle in this opinion, we are referring to the
actual wooden handle plus the small portion of the blade that
remains attached to it.
 11

and used a towel from the kitchen to wash the blood from her

face. When she had finished, the assailant grabbed the towel

and used it to wipe fingerprints off the wall where he had been

leaning. As they were leaving the apartment, the assailant told

the victim, "I've got a gun and if you try to escape I will

shoot you or anyone else that tries to help you."

The assailant led the victim through the Fenway section of

Boston and took her to a small Spanish restaurant on Tremont

Street in an area that was unfamiliar to her. They stayed for

about fifteen minutes while the assailant had something to eat.

The victim testified that she did not attempt to ask for help

because she believed that none of the restaurant employees

understood English.

After leaving the restaurant, the assailant and the victim

proceeded to board a bus. She whispered to the driver for help,

but he made no effort to come to her aid. The assailant and the

victim got off the bus at the next stop. He led the victim to a

secluded area, demanded that she undress again, forced her to

perform oral sex, and threatened to kill her. They then left

the secluded area. As they passed a fire station, the victim

broke away from her assailant, ran into the station, and grabbed

one of the fire fighters, screaming for help. The assailant

followed the victim into the fire station and said, "I want my

woman." When one of the fire fighters suggested that they call
 12

the police, the assailant fled the scene. The victim was taken

to Boston City Hospital, where she was treated for sexual

assault.

The following day, Detective John Farrell recovered from

the victim's apartment the handle of the knife and a pair of

men's socks.8 The blade of the knife was not found. It also

appears that the bloody towel was never recovered by the police.

That same day, the victim went to Boston police headquarters

where she viewed numerous photographs based on her description

of the assailant, but she was unable to make an identification.

On June 25, Detective Farrell showed the victim a group of

eleven photographs, from which she selected the photograph of

Clark as her assailant. The proprietor of the Spanish

restaurant and four fire fighters also chose his photograph from

the same array. Clark was arrested on June 26 and taken to the

police station, where he was told to remove his clothes.

Detective Farrell examined Clark and did not observe any

puncture marks or knife wounds on his back. At trial, the

victim and each of the five witnesses who had selected Clark's

photograph from the array identified him as the assailant. On

January 23, 1974, a jury convicted Clark of rape, unarmed

robbery, and kidnapping.

8
The socks were never introduced in evidence at trial.
 13

In his memorandum of decision denying Clark's § 3 motion,

the judge first concluded that, with respect to the request for

DNA testing of the knife handle, Clark had not satisfied his

burden of proving that such analysis had the potential to yield

evidence that would be material to his identification as the

perpetrator of the underlying offenses, as required by

§ 7 (b) (4). See note 5, supra. The judge recognized that

G. L. c. 278A should not be applied in "an overly stringent or a

grudging fashion." Nonetheless, he stated that the mere

existence of the knife handle, without a reasonable possibility

of biological material thereon, was insufficient to satisfy

§ 7 (b) (4). The judge pointed out that the victim's trial

testimony provided no factual basis for a finding that the knife

came in contact with Clark's skin, or that he ever bled as a

consequence of the victim's effort to stab him. The judge said

that even though § 7 (b) (1) refers to the existence of

"evidence or biological material," not both, § 7 (b) (4)

implicitly requires a showing, by a preponderance of the

evidence, of some biological material on the knife handle

because the requested DNA analysis must have "the potential to

result in evidence that is material to the moving party's

identification as the perpetrator." In the judge's view, there

is always a theoretical possibility that the knife handle or any

item seized from the crime scene could yield some biological
 14

material tied to the victim's assailant, but this possibility

did not relieve Clark of his burden of making a threshold

showing that there exists some realistic potential, grounded in

the facts of the case, that a particular item could yield

exculpatory evidence.

The judge next considered Clark's request for discovery

regarding a pair of men's socks and a bloody towel. With

respect to the socks,9 the judge said that Clark's reliance on

Detective Farrell's testimony that he recovered the socks from

the victim's apartment was insufficient to satisfy the

materiality requirement of § 7 (b) (4) where there was no

evidence that the socks once belonged to, or were touched by,

the victim's assailant. The judge also took note of the

Commonwealth's assertion that it did not possess the socks. He

concluded that Clark had not satisfied his burden of

demonstrating, by a preponderance of the evidence, that

searching for and testing the socks would provide evidence

material to the identification of the perpetrator of the

underlying crimes. With respect to the bloody towel, the judge

said that there was no evidence in the record that the towel was

9
At the hearing, Clark's attorney clarified that he wanted
to interview the keeper of the records of the Suffolk County
district attorney's office and to inspect the premises of that
office in an effort to ascertain the location and significance
of the socks.
 15

recovered by the police. He again took note of the

Commonwealth's assertion that it did not possess the towel. The

judge concluded that the record failed to establish a reasonable

possibility that the towel had been preserved or that it would

produce any evidence material to the identification of the

perpetrator. Accordingly, the judge declined to authorize

discovery with respect to either the socks or the towel.10

3. Forensic and scientific analysis under G. L. c. 278A.

Clark contends in this appeal that the judge interpreted the

requirements of G. L. c. 278A in a manner that misconstrues the

plain language and legislative intent of the act. He asserts

that, pursuant to § 7 (b) (1), he was required to demonstrate,

by a preponderance of the evidence, "that the evidence or

biological material exists" (emphasis added). Clark argues that

he satisfied this criterion by demonstrating the existence of

the handle of the knife that was used by the assailant to

threaten the victim and by the victim to stab her assailant. He

points out that he could not yet demonstrate the existence of

biological material on the handle where such circumstance was

10
In the present appeal, Clark has not challenged the
judge's decision as to discovery regarding the towel.
Therefore, we do not consider the matter further. Similarly, at
the hearing, Clark's attorney did not discuss the victim's
bloody clothing, and the judge made no mention of those clothes
in his memorandum of decision. Because Clark has not objected
to this aspect of the judge's decision, it is not open to
review.
 16

the reason he sought DNA analysis in the first place. Moreover,

he continues, this additional proof was not required under

§ 7 (b) (1). Clark further claims that he satisfied § 7 (b) (4)

because the requested DNA testing of the handle has the

potential to identify the perpetrator of the underlying crimes.

In his view, the judge's interpretation of the provisions of

G. L. c. 278A thwarts the purpose of the act, which is to

provide a mechanism for greater access to postconviction DNA

analysis.

"We review questions of statutory interpretation de novo."

Wade, 467 Mass. at 501. Our analysis of the provisions of G. L.

c. 278A is guided by the familiar principle that "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, to the end that

the purpose of its framers may be effectuated." Hanlon v.

Rollins, 286 Mass. 444, 447 (1934). See Wade, supra; Sullivan

v. Brookline, 435 Mass. 353, 360 (2001). Courts must ascertain

the intent of a statute from all its parts and from the subject

matter to which it relates, and must interpret the statute so as

to render the legislation effective, consonant with sound reason

and common sense. See Champigny v. Commonwealth, 422 Mass. 249,
 17

251 (1996); Pentucket Manor Chronic Hosp., Inc. v. Rate Setting

Comm'n, 394 Mass. 233, 240 (1985).

As we have noted, at the time the judge ruled on Clark's

§ 3 motion, he did not have the benefit of our decision in Wade.

See note 1, supra. Consequently, neither the judge's memorandum

of decision nor the Superior Court docket indicates that the

judge specifically considered whether the motion met the

criteria set forth in § 3. Instead, the judge proceeded to hold

a hearing, as is statutorily mandated pursuant to G. L. c. 278A,

§ 6 (a), in those cases where a motion has satisfied the

requirements of § 3, and to consider whether Clark had

demonstrated, by a preponderance of the evidence, the

requirements of § 7 (b). Given that the judge did not dismiss

the motion prior to holding a hearing, we could infer that he

implicitly determined that the information presented in the

motion met the criteria of § 3. However, as we explained in

Wade, 467 Mass. at 501, the procedure for requesting DNA testing

under G. L. c. 278A is a two-step process, the first step of

which requires a judge to make a threshold determination whether

a motion meets the requirements of § 3, and to notify the

parties "as to whether the motion is sufficient to proceed under

[G. L. c. 278A] or is dismissed." G. L. c. 278A, § 3 (e). That

did not happen in this case, and the Commonwealth argues on

appeal that Clark's motion failed to meet the preliminary
 18

criteria set forth in § 3. Because the threshold inquiry under

§ 3 does not require a judge "to make credibility

determinations, or to consider the relative weight of the

evidence or the strength of the case presented against the

moving party at trial," Wade, supra at 505-506, but, rather, is

based on documentary evidence (the motion and any response that

may be provided by the Commonwealth), we stand in the same

position as the judge in determining whether the information

presented in the motion meets the requirements of § 3. See

generally Commonwealth v. Hoyt, 461 Mass. 143, 148-149 (2011)

(appellate court in same position as motion judge to evaluate

documentary evidence); Commonwealth v. Novo, 442 Mass. 262, 266

(2004). Accordingly, we first shall consider whether Clark's

motion met the preliminary criteria set forth in § 3. If it

did, we then shall proceed to determine whether the judge

properly denied Clark's motion on the ground that Clark failed

to satisfy § 7 (b) (4) where he did not show that some

biological material exists on the knife handle. Finally, we

shall consider infra whether the judge properly denied Clark's

request for discovery regarding the pair of men's socks. See

note 10, supra.

We begin with an analysis of G. L. c. 278A, § 3, mindful of

the fact that Clark is only required "to point to the existence

of specific information that satisfies the statutory
 19

requirements," Donald, 468 Mass. at 41, and need not make an

evidentiary showing by a preponderance of the evidence. See

Wade, 467 Mass. at 501, 503-504. Compare G. L. c. 278A,

§ 3 (b), with G. L. c. 278A, § 7 (b). First, Clark was required

to set forth in his motion "the name and a description of the

requested forensic or scientific analysis." G. L. c. 278,

§ 3 (b) (1). He stated that he was seeking DNA testing, using

the Y-chromosome short tandem repeat (Y-STR) method,11 on the

handle of the knife that the victim grabbed from her assailant

and attempted to stab into his back, striking the assailant in

the shoulder. We conclude that Clark met the requirements of

§ 3 (b) (1).

Second, Clark was required to set forth in his motion

"information demonstrating that the requested analysis is

admissible as evidence in courts of the commonwealth." G. L.

c. 278A, § 3 (b) (2). He correctly stated that the results of

DNA testing using the Y-STR method are admissible in

Massachusetts courts. See, e.g., Commonwealth v. Bizanowicz,

459 Mass. 400, 406-407 (2011). We conclude that Clark met the

requirement of § 3 (b) (2).

11
The Y-chromosome short tandem repeat (Y-STR) method looks
at deoxyribonucleic acid (DNA) on the Y-chromosome, found
exclusively in males. See Commonwealth v. Issa, 466 Mass. 1, 4
(2013).
 20

Third, Clark was required to set forth in his motion "a

description of the evidence or biological material that [he]

seeks to have analyzed or tested, including its location and

chain of custody if known." G. L. c. 278A, § 3 (b) (3). He

stated that he was seeking to have DNA testing performed on any

physical evidence ascertainable from the handle of the knife,

including blood evidence. Clark further stated that the handle

was in the possession of the Suffolk County district attorney's

office and that, as far as he and his attorney were aware, it

had been in the custody of that office since 1973, when his case

was tried. In the Commonwealth's view, Clark failed to

adequately describe the chain of custody of the knife handle.

We disagree. Section 3 (b) (3) provides that the location and

chain of custody of evidence or biological material that a

moving party seeks to have analyzed shall be described "if

known." This language plainly suggests that there may be

instances when such information is not known to a moving party,

and this circumstance will not be an impediment to satisfying

§ 3 (b) (3). Clark described the current location of the knife

handle, as well as its chain of custody to the extent that he

had knowledge of the matter. We conclude that Clark met the

requirements of § 3 (b) (3).

Fourth, Clark was required to set forth in his motion

"information demonstrating that the analysis has the potential
 21

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, § 3 (b) (4). He stated that the knife

handle was the only physical evidence introduced at trial, and

he referred to the victim's testimony that she grabbed the knife

from her assailant and attempted to stab him in the back,

striking the assailant in the shoulder and causing the blade to

break off. Further, Clark denied knowing the victim or having

committed the charged crimes, and he pointed out that he had no

wounds on his body at the relevant time. Clark stated that DNA

analysis of any physical evidence on the knife handle would be

material to his identification as the perpetrator of the crimes.

In support of his motion, Clark submitted an affidavit from Dr.

Robin W. Cotton, an associate professor in the department of

anatomy and neurobiology and the director of the biomedical

forensic sciences program at Boston University School of

Medicine.12 She opined that "[w]hile the evidence in this case

is old, it is possible that upon examination of the knife handle

and partial blade by an accredited laboratory, . . . there may

be biological material on the handle or the remaining portion of

12
Prior to her employment at Boston University School of
Medicine, Dr. Robin W. Cotton was the forensic laboratory
director of Cellmark Diagnostics (later Orchid Cellmark), a
private laboratory that specializes in providing forensic DNA
testing services.
 22

the blade which is from the perpetrator and that could be tested

utilizing Y-STR DNA testing." See note 7, supra.

We have said that the threshold requirement of § 3 (b) (4)

is a "modest" one. Wade, 467 Mass. at 507. The moving party

only needs to present information showing that the forensic or

scientific analysis has "the potential to result in evidence

that is material to the moving party's identification as the

perpetrator of the crime" (emphasis added). G. L. c. 278A,

§ 3 (b) (4). Doctor Cotton opined that, notwithstanding the age

of the evidence in this case, it was possible that biological

material from the perpetrator was present on the knife handle.13

13
The purported absence of visible biological material on
the handle of the knife is of no import where such material may
consist of skin cells or occult blood, which cannot be seen with
the naked eye. See Commonwealth v. Girouard, 436 Mass. 657, 660
n.3 (2002). Although the focus of Clark's § 3 motion is DNA
analysis of potential blood evidence on the knife handle, we
recognize the possibility that DNA from skin cells, so-called
"touch DNA" or "trace DNA," may be present on the handle and
could have the potential to yield material evidence regarding
the perpetrator of the underlying crimes. In 1997, a scientific
journal "reported that DNA profiles could be generated from
touched objects. This opened up possibilities and led to the
collection of DNA from a wider range of exhibits (including:
tools, clothing, knives, vehicles, firearms, food, bedding,
condoms, lip cosmetics, wallets, [jewelry], glass, skin, paper,
cables, windows, doors, and stones)." van Oorschot, Ballantyne,
& Mitchell, Forensic Trace DNA: A Review, 1:14 Investigative
Genetics 1, 2 (2010) (Forensic Trace DNA), citing van Oorschot &
Jones, DNA Fingerprints from Fingerprints, 387 Nature 767 (June
1997). "[T]ouched objects provide a wide scope for revealing
[an] offender's DNA profile." Forensic Trace DNA, supra.
Although referring to a single term such as "touch DNA" or
"trace DNA" may be "a misleading simplification of a series of
complex processes," either term can be appropriate "when
 23

The testimony of the victim, coupled with the apparent absence

of wounds on Clark's body, could suggest that the victim stabbed

someone other than Clark. Testing of the knife handle has the

potential to produce a DNA profile that does not match the

profile of Clark and, therefore, would be material to the

identification of Clark as the perpetrator of the underlying

crimes. Whether Clark is likely to obtain such a forensic

result "is not relevant to the analysis." Wade, supra at 508.

Moreover, the Legislature "did not condition access to

[scientific] testing on some degree of proof that the test

results will raise doubt about the conviction."14 Id. at 509.

We conclude that Clark met the requirement of § 3 (b) (4).

Fifth, Clark was required to set forth in his motion

"information demonstrating that the evidence or biological

material has not been subjected to the requested analysis" for

referring to the collection of minute biological samples at [a]
crime scene or the process of collecting and extracting the tiny
amounts of material within the sample in the forensic
laboratory." Id. Generally speaking, "trace DNA" refers to
either "very limited and/or invisible biological samples" or
amounts of DNA that are less than a defined threshold limit.
Id. at 3.
14
We have recognized that "[t]he language of G. L. c. 278A,
§ 3 (b), sets a far lower bar for access to scientific testing
than that required by similar statutes in other States." Wade,
467 Mass. at 509 & n.16.
 24

one of five enumerated reasons.15 G. L. c. 278A, § 3 (b) (5).

He correctly stated, in accordance with § 3 (b) (5) (i), that

when he was convicted of the underlying crimes in 1974, DNA

analysis had not yet been developed. See Commonwealth v.

Curnin, 409 Mass. 218, 221 (1991), and cases cited ("The use of

DNA testing for forensic purposes is of very recent origin").

We conclude that Clark met the requirement of § 3 (b) (5).

Finally, Clark was required to file with his § 3 motion "an

affidavit stating that [he] is factually innocent of the offense

15
General Laws c. 278A, § 3 (b) (5), requires a moving
party to demonstrate that the requested forensic or scientific
analysis has not been performed because

"(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."
 25

of conviction and that the requested forensic or scientific

analysis will support the claim of innocence."16 G. L. c. 278A,

§ 3 (d). Clark did file such an affidavit in which he asserted

that he "did not commit[] the offenses of Unarmed Robbery, Rape,

and Kidnapping," and that he was "requesting forensic or

scientific testing in this case because [he] believe[s] that the

results of this testing will support [his] claim of factual

innocence." No more was required under the plain and

unambiguous language of the statute. We are cognizant of the

fact that the affidavit from Dr. Cotton did not specifically

aver that DNA analysis of the knife handle would support Clark's

assertion. However, nothing in § 3 (d) requires a moving party

to submit with his or her affidavit supporting evidence to

substantiate a claim of factual innocence. We conclude that

Clark met the requirements of § 3 (d).

Based on our review of Clark's § 3 motion, together with

his affidavit of factual innocence and the supporting affidavit

of Dr. Cotton, as well as the response from the Commonwealth, we

determine that Clark has met all of the threshold requirements

set forth in G. L. c. 278A, § 3, for DNA analysis. Given that

16
General Laws c. 278A, § 1, defines "[f]actually innocent"
as "a person convicted of a criminal offense who did not commit
that offense." Accordingly, "to assert factual innocence, a
moving party must assert that he did not commit the offense of
which he was convicted." Wade, 467 Mass. at 512.
 26

the judge already has held a hearing on the motion,17 we proceed

to consider whether he properly denied Clark's motion under

G. L. c. 278A, § 7, based on his conclusion that Clark did not

satisfy § 7 (b) (4) because Clark failed to establish a

reasonable possibility that some biological material exists on

the knife handle.

General Laws c. 278A, § 7 (b), provides that a judge "shall

allow the requested forensic or scientific analysis" if all six

enumerated criteria "ha[ve] been demonstrated by a preponderance

of the evidence." See note 5, supra. Pursuant to § 7 (b) (1),

Clark was required to show that "the evidence or biological

material exists" (emphasis added). The word "or" has "a

disjunctive meaning unless the context and the main purpose of

all the words demand otherwise." Eastern Mass. St. Ry. v.

Massachusetts Bay Transp. Auth., 350 Mass. 340, 343 (1966). The

language of § 7 (b) does not demand, or even suggest, that the

Legislature's use of the word "or" to distinguish between

"evidence" and "biological material" should be construed as

other than disjunctive, thereby identifying two alternative

sources for forensic or scientific analysis. Clark satisfied

the terms of § 7 (b) (1) by showing that evidence -- the handle

17
No witnesses provided testimony at the hearing. Counsel
for Clark and the Commonwealth simply presented their arguments
to the judge.
 27

of the knife used to commit the underlying crimes -- exists. He

was not required to also demonstrate the presence of biological

material on the knife handle. Such a construction of the

statutory language would undermine its plain and unambiguous

terms. See Commonwealth v. Brown, 431 Mass. 772, 775 (2000)

("When the language of a statute is plain and unambiguous, it

must be given its ordinary meaning").

In addition to demonstrating the existence of the knife

handle, Clark was required to show that the requested DNA

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" (emphasis added). G. L.

c. 278A, § 7 (b) (4). Given his lack of access to the knife

handle since his convictions, Clark could not point to any

visual evidence of biological material on the handle.

Therefore, he had to rely on the victim's trial testimony where

she stated that her assailant "found [a] kitchen knife," he

"proceeded to rape [her] with the knife at [her] throat," she

eventually "grabbed the knife," she "attempted to stab him in

the back," and she struck him in the shoulder, at which point

the blade broke off. This testimony suggests that Clark's

request for DNA analysis of the handle has the "potential" to

result in evidence -- a DNA profile -- that is material to

Clark's identification as the perpetrator of the underlying
 28

crimes. Where the assailant was holding onto the knife for a

period of time and the victim believed that she stabbed the

assailant in the shoulder, skin cells and blood may be present

on the handle. See note 13, supra. The Legislature's use of

the word "potential" in § 7 (b) (4) suggests an awareness of the

fact that the requested forensic analysis may not produce the

desired evidence, but such a consequence should not be an

impediment to analysis in the first instance. Given its

compelling interest in remedying wrongful convictions of

factually innocent persons, the Legislature intended to permit

access to DNA testing "regardless of the presence of

overwhelming evidence of guilt in the underlying trial." Wade,

467 Mass. at 511. As such, it is entirely appropriate that we

construe the language of G. L. c. 278A, § 7 (b), in a manner

that is generous to the moving party.

We conclude that the judge erred in determining that Clark

failed to satisfy his burden of demonstrating the requirements

of G. L. c. 278A, § 7 (b) (1) and (4). Based on his decision

regarding these two statutory provisions, the judge did not

consider the remaining criteria of § 7 (b). See note 5, supra.

Pursuant to § 7 (a), a judge "shall state findings of fact and

conclusions of law on the record, or shall make written findings

of fact and conclusions of law that support the decision to
 29

allow or deny a motion brought under [§] 3."18 See Wade, 467

Mass. at 503. We have no such findings and conclusions

concerning whether Clark satisfied his burden of proof with

respect to § 7 (b) (2), (3), (5), and (6). Mindful of our

rationale for analyzing the criteria set forth in G. L. c. 278,

§ 3, we similarly could consider whether Clark satisfied those

particular requirements of § 7 (b) that can be demonstrated

through documentary materials. See, e.g., G. L. c. 278A,

§ 7 (b) (3), (5), (6). However, the matter of whether Clark

satisfied § 7 (b) (2) stands on different footing. A dispute

exists between the parties as to whether "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 (b) (2), and the judge made no findings to

18
As we have stated, a judge shall allow forensic or
scientific analysis only in those cases where a moving party has
demonstrated, by a preponderance of the evidence, all six
criteria set forth in G. L. c. 278A, § 7 (b). We recognize that
where a judge determines that a moving party has failed to
satisfy one of these criteria, the language of § 7 (a) could be
construed as only requiring findings of fact and conclusions of
law relating to that one criterion. In our view, however,
§ 7 (a) is better read as requiring a judge to articulate
findings of fact and conclusions of law on all six criteria in
every decision made on a motion filed pursuant to G. L. c. 278A.
By so doing, a judge will facilitate proper appellate review,
when sought, without the necessity of a remand for further
proceedings, thereby promoting judicial economy and efficiency.
 30

resolve the dispute. He simply did not consider whether DNA

analysis of the knife handle "would lack any probative value"

due to deterioration or handling of the evidence over time

(emphasis added). G. L. c. 278A, § 7 (b) (2). We have said

that "[a]ppellate courts may supplement a judge's finding of

facts if the evidence is uncontroverted and undisputed and where

the judge explicitly or implicitly credited the witness's

testimony." Commonwealth v. Isaiah I., 448 Mass. 334, 337

(2007), S.C., 450 Mass. 818 (2008). However, that is not the

situation presented here. Accordingly, we remand this matter to

the Superior Court for the requisite findings of fact and

conclusions of law regarding whether Clark has demonstrated by a

preponderance of the evidence the requirements of § 7 (b) (2),

(3), (5), and (6).

4. Discovery under G. L. c. 278A. Finally, we consider

whether the judge properly denied Clark's request for discovery

regarding a pair of men's socks. Clark contends that, contrary

to the judge's conclusion, he was not required to demonstrate

either that there was a causal connection between the socks and

the assailant, or that such evidence would be exculpatory. He

further contends that the judge improperly and prematurely

analyzed his request for discovery under G. L. c. 278A, § 7,

rather than under G. L. c. 278A, § 3. In Clark's view, the

allowance of discovery pertaining to the socks is necessary
 31

before he can satisfy any burden of proof as to their

evidentiary value.

General Laws c. 278A, § 3 (c), provides that if, at this

threshold stage, a moving party is unable to file with the

motion "any of the items or information" required under § 3 (b),

or "lacks items or information necessary to establish any of the

factors" set forth in § 7 (b), then the moving party may seek

"discovery of such items or information from the prosecuting

attorney or any third party" and "shall include a description of

efforts made to obtain such items and information." See Wade,

467 Mass. at 504. Here, Clark stated in his § 3 motion that

Detective Farrell recovered from the victim's apartment a pair

of men's socks. He further stated that the current location of

the socks was unclear, and that he was entitled to discovery to

ascertain their location and then pursue DNA testing. Because

Clark failed to describe in his § 3 motion any efforts that he

made to obtain the socks, we conclude that Clark did not meet

the requirements of § 3 (c).

Had he done so, then the judge would have considered

whether to authorize discovery pursuant to § 7 (c). "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
 32

identification of a perpetrator of the crime." G. L. c. 278A,

§ 7 (c). Further, if a judge finds "good cause" for a moving

party's "inability to obtain items or information required

under" §§ 3 (b) and 7 (b), then the judge can "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." Id. Here, in his

memorandum of decision, the judge stated that the testimony of

Detective Farrell, by itself, was insufficient to show that

there was a connection between the socks and the perpetrator,

much less that the evidence had the potential to exculpate

Clark. The judge pointed out that the record did not indicate

that the socks once belonged to, or were ever touched by, the

victim's assailant. Consequently, the judge concluded that

Clark failed to satisfy his burden of demonstrating that

searching for and analyzing the socks would provide evidence

material to the identification of the perpetrator of the

underlying crimes. We do not disagree with the judge's

conclusion. Clark's request for discovery pertaining to the

socks was properly denied.19

19
In the event that Clark obtains new information about the
location and evidentiary significance of the socks, he is not
foreclosed from filing another motion for discovery pursuant to
the terms of G. L. c. 278A, § 3 (c).
 33

5. Conclusion. The judge's order denying Clark's § 3

motion is reversed, except insofar as it denied Clark's request

for discovery. We remand this case to the Superior Court for

further proceedings consistent with this opinion.

So ordered.