Commonwealth v. Wade

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SJC-11913

COMMONWEALTH vs. ROBERT D. WADE.

Plymouth. January 11, 2016. - July 29, 2016.

Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.1

Deoxyribonucleic Acid. Evidence, Scientific test. Practice,
Criminal, Postconviction relief, Waiver, Capital case.
Statute, Construction. Witness, Privilege. Attorney at
Law, Attorney-client relationship. 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), and
467 Mass. 496 (2014), a motion for deoxyribonucleic acid
testing, which had been filed on March 26, 2012, and which was
supplemented on April 30, 2014, was heard by Charles J. Hely, J.

A request for leave to appeal was allowed by Spina, J., in
the Supreme Judicial Court for the county of Suffolk.

Janet H. Pumphrey for the defendant.
Mary Lee, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:

1
Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
 2

Ira L. Gant, Stephanie Roberts Hartung, & David Lewis for
Committee for Public Counsel Services Innocence Program &
others.
Michael D. Ricciuti, Kathleen D. Parker, & Patrick C.
McCooe for Boston Bar Association.
Martin W. Healy for Massachusetts Bar Association.
Stanley L. Donald, pro se.
Matthew M. Burke, Dara A. Reppucci, Hillel Nadler, Shivan
Sarin, & David Lewis for Massachusetts Association of Criminal
Defense Lawyers.

DUFFLY, J. This case requires us to decide whether the

petitioner, Robert Wade, who filed a motion in the Superior

Court seeking postconviction testing of biological material

pursuant to G. L. c. 278A ("An Act providing access to forensic

and scientific analysis") (act), see St. 2012, c. 38, has

satisfied the requirements of the act and therefore is entitled

to the testing he seeks.

The Legislature enacted G. L. c. 278A to create 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). The

Legislature's stated purpose in enacting G. L. c. 278A 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 . . . [to] provide a more reliable basis for
 3

establishing a factually correct verdict than the evidence

available at the time of the original conviction." Commonwealth

v. Wade, 467 Mass. 496, 504 (2014) (Wade II), quoting 2011

Senate Doc. No. 753 and 2011 House Doc. No. 2165.

We conclude that because Wade has demonstrated that "the

requested analysis had not yet been developed at the time of

conviction," G. L. c. 278A, § 3 (b) (5) (i), he has met the

requirement of the act to establish one of the five enumerated

reasons explaining why the requested testing was not previously

conducted. See G. L. c. 278A, § 3 (b) (5) (i)-(v). It was

therefore an abuse of discretion for the Superior Court judge to

deny Wade's motion for scientific testing on the ground that

Wade also was required to establish that the enumerated reason

was the "primary reason" that his trial attorney did not seek

the requested analysis, and that a reasonably effective attorney

would have done so. Accordingly, the order denying Wade's

motion for scientific testing must be reversed.

1. Statutory framework. The act establishes a two-step

procedure for obtaining postconviction forensic or scientific

analysis. See Wade II, supra at 501. The first step involves a

threshold determination whether a motion filed pursuant to G. L.

c. 278A, § 3 (§ 3 motion), satisfies the criteria set forth in

that section. See id. at 503-504. This step is essentially

"nonadversarial," and the determination is to be made based
 4

primarily on the moving party's filings. Id. At this threshold

stage, "a moving party is required only to point to the

existence of specific information that satisfies the statutory

requirements." Commonwealth v. Donald, 468 Mass. 37, 41 (2014).

If the requirements of the first step are satisfied, the

moving party advances to the second step of the procedure, an

evidentiary hearing pursuant to G. L. c. 278A, § 7. Wade II,

supra at 501. See G. L. c. 278A, §§ 6, 7. At that hearing, the

moving party must establish by a preponderance of the evidence

each of the six factors set forth in § 7 (b) (1)-(6).2 See Wade

2
General Laws c. 278A, § 7 (b), provides in full:

"The court shall allow the requested forensic or
scientific analysis if each of the following has been
demonstrated 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 [G. L. c. 278A, § 7 (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
 5

II, supra at 503. The third factor, § 7 (b) (3), requires a

moving party to demonstrate that "the evidence or biological

material has not been subjected to the requested analysis for

any of the reasons" enumerated in § 3 (b) (5). Those reasons

are

"(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" (emphasis
added).

G. L. c. 278A, § 3 (b) (5).

Where a moving party has established "any of the reasons"

enumerated in § 3 (b) (5), thereby satisfying § 7 (b) (3), and

has also satisfied the other five requirements of § 7 (b),

"(6) that the results of the particular type of
analysis being requested have been found to be admissible
in courts of the commonwealth."
 6

"[t]he court shall allow the requested forensic or scientific

analysis." Id.

2. Factual and procedural background. In 1997, a Superior

Court jury convicted Wade of murder in the first degree on a

theory of felony-murder, predicated on his conviction of

aggravated rape. See Commonwealth v. Wade, 428 Mass. 147, 155

(1988). Since 2002, Wade has been seeking postconviction

testing of physical evidence introduced at his trial. Wade II,

467 Mass. at 497. We previously concluded, in Wade II, supra,

that Wade had satisfied the requirements of the act's first

step, § 3. As a necessary prerequisite of § 3, Wade denied

having raped the victim, asserted that he was innocent of rape

and murder, and submitted an affidavit from a forensic expert

stating that the requested testing would, in his opinion,

"determine conclusively" whether Wade was a contributor or the

sole contributor to the deoxyribonucleic acid (DNA) found on

samples taken from the victim's vagina and clothing. Id. at

507. We determined that Wade was thus entitled to proceed to

the second step of the procedure on the question whether his

motion for DNA testing should be granted, and ordered the matter

remanded to the Superior Court for an evidentiary hearing

pursuant to § 7.

Wade initially filed his § 3 motion seeking DNA testing

under § 3 (b) (5) (iv), what we will refer to as the "reasonably
 7

effective attorney" prong. Prior to the hearing, Wade moved to

supplement his motion by asserting an additional or alternative

basis for relief under § 3 (b) (5) (i), the "undeveloped

analysis" prong, which provides that the evidence was not

subjected to the requested analysis because "the requested

analysis had not yet been developed at the time of the

conviction." G. L. c. 278A, § 3 (b) (5) (i). The motion judge,

a different judge from the one who had denied Wade's § 3 motion,

and who also was not the trial judge, allowed the motion to

supplement.3

Also prior to the hearing, but after Wade's motion to

supplement had been allowed, the Commonwealth filed a motion

seeking leave to summons and examine Wade's trial counsel on the

question whether a "reasonably effective attorney" would have

sought the requested testing before trial. Wade filed a motion

seeking to preclude such testimony. The judge allowed the

Commonwealth's motion, and Wade filed a petition for relief

pursuant to G. L. c. 211, § 3, in the county court. The single

justice determined that examination of Wade's trial counsel

could proceed where, "without revealing attorney-client

communications," the testimony could offer evidence on the

question whether a "reasonably effective attorney" would have

3
As discussed infra, Wade waived his reliance on the
reasonably effective attorney prong during the evidentiary
hearing.
 8

sought the requested DNA analysis before trial.

During the evidentiary hearing, postconviction counsel

asserted that Wade was required to establish only one of the

five reasons under § 3 (b) (5). When the Commonwealth sought to

elicit responses from Wade's trial counsel, postconviction

counsel objected on the ground that the answers were privileged.

His objections were overruled. Postconviction counsel then

orally waived the claim under the reasonably effective attorney

prong, in order to proceed solely on the undeveloped analysis

prong.4 The Commonwealth asserted, as it does on appeal, that

even where a moving party seeks relief solely under the

undeveloped analysis prong, the act necessarily contemplates

that trial counsel's testimony may be used to demonstrate both

the state of counsel's knowledge at the time of trial and

counsel's trial strategy, in order to determine the actual

reason that the evidence was not tested. The Commonwealth then

4
We reject the Commonwealth's argument that G. L. c. 278A,
§ 15, prohibits a moving party from waiving or withdrawing a
claim that has been asserted under G. L. c. 278A, § 3 (b) (5).
General Laws c. 278A, § 15, states explicitly that "[t]he right
to file a motion under this chapter shall not be waived." By
its plain language, this provision was intended to protect a
moving party's right to file a motion seeking scientific
testing. Nothing in the statutory language, however, prohibits
a moving party from withdrawing a claim under one prong of G. L.
c. 278A, § 3 (b) (5), and choosing to proceed only under one of
the remaining theories presented in the party's motion, nor does
any portion of G. L. c. 278A (act) suggest a legislative intent
to preclude a party from withdrawing or dismissing a claim once
filed, as generally permitted with any motion for postconviction
relief.
 9

asked trial counsel what he had been told by Wade about his

encounter with the victim. When counsel again declined to

answer, the judge said, "I order you to answer that question."

Trial counsel then did so. Postconviction counsel moved to

strike the testimony disclosing privileged information. The

motion was denied.

Following the evidentiary hearing, the judge found that the

requested analysis had not been developed at the time of Wade's

conviction, thereby finding that Wade had satisfied the

undeveloped analysis prong, which in turn satisfies § 7 (b) (3).5

But the judge rejected Wade's assertion that he need only

satisfy one of the reasons set forth in § 3 (b) (5) in order to

satisfy § 7 (b) (3). According to the judge, "the proper

inquiry under [§] 7 (b) (3) is what [is] the primary 'reason,'

5
The judge also found that Wade had satisfied four of the
other five requirements of § 7 (b). The judge did not reach one
of the requirements, § 7 (b) (5), which requires that a moving
party establish that "the purpose of the motion is not the
obstruction of justice or delay." The sole evidence before the
judge on this issue was an affidavit by postconviction counsel
attesting to her efforts, spanning thirteen years, to obtain
deoxyribonucleic acid (DNA) testing on Wade's behalf through the
Massachusetts and Federal courts. The Commonwealth did not
dispute that Wade had satisfied this requirement. Where there
was no live testimony and a factual finding must be made on the
basis of a documentary record alone, we are "in the same
position as the motion judge" to resolve the issue. See
Commonwealth v. Clark, 472 Mass. 120, 130, 135 (2015). Having
carefully reviewed counsel's affidavit, we conclude that the
purpose of Wade's motion was not to delay or to obstruct justice
and Wade therefore has satisfied all five of the other
requirements of § 7 (b).
 10

i.e.[,] the primary cause, why the material was not previously

subjected to the requested analysis." In connection with this

inquiry, the judge relied on the privileged communications

disclosed by Wade's trial counsel. Ultimately, the judge denied

Wade's § 3 motion on the ground that he had not met the

requirements of the reasonably effective attorney prong because

a "reasonably effective attorney" would not have sought the

requested analysis. Wade then filed a second petition pursuant

to G. L. c. 278, § 33E, seeking leave to appeal from the denial

of his § 3 motion for forensic and scientific testing under

G. L. c. 278A, § 7, and the single justice allowed the appeal to

proceed before the full court.

3. Discussion. a. Standard of review. We review a

question of statutory interpretation de novo. Commonwealth v.

Ventura, 465 Mass. 202, 208 (2013). "The general and familiar

rule is 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." Commonwealth v. Millican, 449 Mass. 298, 300

(2007), citing Hanlon v. Rollins, 286 Mass. 444, 447 (1934). A

guiding principle of statutory interpretation is "that the

statutory language should be given effect consistent with its
 11

plain meaning and in light of the aim of the Legislature unless

to do so would achieve an illogical result." Sullivan v.

Brookline, 435 Mass. 353, 360 (2001), and cases cited.

b. Statutory reason testing previously not performed. We

address first whether the act permits a judge to consider any of

the other reasons enumerated in § 3 (b) (5) (i)-(v), once a

moving party has established one of those reasons, to explain

why the evidence has not been subjected to the requested

analysis. See G. L. c. 278A, § 7 (b) (3). General Laws

c. 278A, § 7 (b) (3), mandates that the court "shall allow" the

requested testing if the moving party establishes, in addition

to the other required factors under G. L. c. 278A, § 7 (b), that

the testing was not conducted previously "for any of the

reasons" enumerated in § 3 (b) (5) (i)-(v). The plain meaning

of the phrase "for any of the reasons" is that the requirement

is satisfied when any one of the several enumerated alternatives

is met. See, e.g., G. L. c. 90, § 32G ("registrar may suspend

or revoke a license . . . for any of the following causes");

G. L. c. 140, § 131 (e) (State police shall notify State

firearms licensing authority "whether there is reason to believe

that the applicant is disqualified for any of the foregoing

reasons"). Thus, the phrase "for any of the reasons" means that

a moving party satisfies the requirement of § 7 (b) (3) once the

party has established any one of the enumerated reasons. See
 12

Olmstead v. Department of Telecomm. & Cable, 466 Mass. 582, 588

(2013), quoting Massachusetts Broken Stone Co. v. Weston, 430

Mass. 637, 640 (2000) ("we give effect to a statute's 'plain and

ordinary meaning' where the statute's words are clear").

Moreover, the use of the word "or" to separate each of the

enumerated reasons clearly evinces the Legislature's intent that

a moving party may satisfy this prong by establishing any one of

the enumerated reasons. "The word 'or' is given a disjunctive

meaning unless the context and the main purpose of all the words

demand otherwise." Nuclear Metals, Inc. v. Low Level

Radioactive Waste Mgt. Bd., 421 Mass. 196, 212 (1995), quoting

Eastern Mass. St. Ry. v. Massachusetts Bay Transp. Auth., 350

Mass. 340, 343 (1966), and cases cited. The language of the act

plainly indicates the Legislature's intent to provide a moving

party with a choice among several, distinct reasons advanced by

the moving party to explain why the material had not been

previously subjected to the requested testing. Nothing in the

context or the stated statutory purpose of the act suggests that

we should interpret the word "or" in § 3 (b) (5) to have

anything but its ordinary disjunctive meaning.

Indeed, it would be nonsensical to attribute a conjunctive

meaning to the word "or" as used in this section, given that at

least some of the enumerated reasons are mutually exclusive.

The reasonably effective attorney prong, for instance, presumes
 13

that the requested analysis was developed at the time of

conviction, that the results of such analysis were admissible at

trial, and that the moving party or the moving party's trial

counsel were aware that the evidence existed. See G. L.

c. 278A, § 3 (b) (5) (iv). By contrast, the first three prongs

require a moving party to establish, respectively, that the

requested analysis had not been developed, that the results of

the requested analysis were not admissible at trial, or that

neither the moving party nor the moving party's attorney was

aware that the evidence existed. See G. L. c. 278A,

§ 3 (b) (5) (i)-(iii).6

Properly understood, each of these five enumerated reasons

provides a moving party with alternate pathways to establish

that he or she is entitled to the requested analysis. See

Commonwealth v. Williamson, 462 Mass. 676, 681 (2012), quoting

Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 316

(1991) ("Statutes should be read 'as a whole to produce internal

consistency"). And the reasonably effective attorney prong

permits a moving party to obtain the requested analysis even

where the moving party is unable to satisfy any of the three

preceding prongs. See G. L. c. 278A, § 3 (b) (5) (iv). That

6
The fifth prong provides a final path by which a moving
party may obtain the requested analysis, by establishing that
the "evidence or biological material was otherwise unavailable
at the time of conviction." G. L. c. 278A, § 3 (b) (5) (v).
 14

is, even where the moving party or his or her attorney was aware

of the existence of the evidence, the requested analysis had

been developed at the time of conviction, and the results of

such analysis would have been admissible, a moving party

nonetheless may obtain the requested analysis where the party

can establish that a "reasonably effective attorney" would have

requested it, but that his trial counsel did not do so. Id.

For the foregoing reasons, we conclude that the Legislature

could not have intended that a moving party must also satisfy

the reasonably effective attorney prong if the party has already

satisfied the undeveloped analysis prong. Accordingly, because

Wade satisfied the requirement of § 3 (b) (5) (i), the

undeveloped analysis prong, he was not required to satisfy any

of the other prongs of § 3 (b) (5).

c. "Primary" or "actual" reason testing was not conducted.

We turn to discussion of the judge's determination that Wade was

required also to establish the "primary reason" why the evidence

was not tested previously. The Commonwealth argues that the

judge's reasoning was correct, and that the statute indeed

requires a moving party to prove the "actual reason" that the

testing was conducted. The Commonwealth maintains further that

the Legislature intended to preclude a moving party's access to

postconviction scientific testing if the "actual reason" the

testing was not conducted was a strategic decision made by "a
 15

reasonably effective attorney."

The words "primary reason" or "actual reason" do not appear

in the referenced statutory provisions, or anywhere else in the

language of the act. Nor is there anything in the act from

which it can be gleaned that the Legislature intended to require

such a finding, or to impose additional burdens on petitioners

seeking scientific testing beyond the requirements mandated by

the statutory language. The act lists five alternative reasons

on which a party may rely to show why testing was not performed.

It contains no requirement that a moving party prove "the

primary reason" among them. Rather, as discussed, a moving

party satisfies § 7 (b) upon establishing that "any of the

reasons" set forth in § 3 (b) (5) are applicable to the facts of

the party's case. "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 an option to, but chose not to

include." Commissioner of Correction v. Superior Court Dep't of

the Trial Court for the County of Worcester, 446 Mass. 123, 126

(2006).

Moreover, our decision in Wade II, supra, forecloses the

argument that a moving party may not obtain requested testing if

a reasonably effective trial counsel did indeed make a strategic

decision not to have the material tested at the time of trial.

In that case, we expressly rejected the argument that the
 16

meaning of "a reasonably effective attorney" under

§ 3 (b) (5) (iv) imports the standard of ineffective assistance

of counsel. See Wade II, supra at 511-512. We concluded that

the act's inquiry, whether "a reasonably effective attorney"

would have sought the requested testing, is an objective one.7

Id. at 512. In part, we reasoned that, because the act uses the

language of "a" hypothetical reasonably effective attorney, a

moving party is not required to explain the tactical or

strategic reasoning of the party's trial counsel in not seeking

the requested analysis.8 See Wade II, supra at 511. See

Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 703 (2015). Thus,

regardless whether a moving party proceeds under the reasonably

effective attorney prong or any other prong of § 3 (b) (5),

whether his or her trial counsel made a strategic decision to

forgo such testing is not relevant to that inquiry.

7
We noted also that the statutory language in
§ 3 (b) (5) (iv) "contrasts with provisions in statutes in other
jurisdictions providing for postconviction DNA testing, which
explicitly incorporate the ineffective assistance of counsel
standard, or explicitly require that trial counsel not have made
a strategic or tactical decision in forgoing a request for DNA
testing." See Wade II, supra at 512 & n.21.
8
In contrast, we observe that the act refers specifically
to "the moving party's attorney" in several places. See, e.g.,
G. L. c. 278A, § 3 (b) (iii), (iv). Because the Legislature
knew how to reference the moving party's trial counsel when it
wanted to, its use of the phrase "a reasonably effective
attorney" was clearly included to distinguish a hypothetical
"reasonably effective attorney" from the moving party's trial
counsel. See Nguyen v. William Joiner Ctr. for the Study of War
& Social Consequences, 450 Mass. 291, 301 (2007).
 17

This understanding is consistent with § 3 (d), which

permits testing even where a moving party has pleaded guilty or

made incriminating statements. See Wade II, supra at 514 (plain

language of G. L. c. 278A, § 3 [d], and purpose for which act

was enacted evinces Legislature's clear intent "to ensure that a

moving party will be able to meet the requirements of G. L.

c. 278A, § 3, notwithstanding any incriminating statements the

party may have made, a guilty plea, or a plea of nolo

contendere"). As we observed in Commonwealth v. Clark, 472

Mass. 120, 136 (2015), quoting Wade II, supra at 511, "[g]iven

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.'"

We conclude that Wade was not required to establish the

"primary reason" that the evidence was not tested.

d. Whether requested testing was available at time of

trial. The judge found that the DNA analysis requested by Wade

was not yet developed at the time of Wade's trial in 1997. We

do not agree with the Commonwealth's contention that this

finding is clearly erroneous. Wade's DNA expert testified that,

as of September, 1997, it was not possible to test all thirteen
 18

loci of the CODIS STR panel.9 The expert acknowledged that an

early form of DNA analysis was available in 1997, but stated

that the "average power of discrimination" for the earlier tests

was "on the range of one in a few thousand." By contrast, the

DNA testing now available has the "discriminating power" of

"[m]any, many, many orders of magnitude" higher than the earlier

tests, which is in the "trillions, quadrillions, and so forth."10

The Commonwealth did not challenge these assertions on cross-

examination, and did not introduce other evidence to the

contrary.

The judge's finding that the DNA analysis Wade requested

was not developed at the time of his trial is thus sufficiently

supported by evidence in the record. The record demonstrates

that the requested analysis has the discriminating power of, at

a minimum, one in trillions, while the tests available at the

9
Wade requested the DNA analysis that was available at the
time of his evidentiary hearing in 2014, which included an
analysis of thirteen short tandem repeat (STR) loci. "A DNA
profile for an individual is that combination of alleles, or
versions of genes, possessed by the individual at the loci
tested." Commonwealth v. Gaynor, 443 Mass. 245, 248 n.1 (2005).
As Wade's expert explained during the evidentiary hearing, the
Federal Bureau of Investigation has "adopted the [thirteen] loci
of the Profiler Plus and Cofiler tests as the STR loci required
for participation in the national DNA database known as CODIS,
or Combined DNA Index System."
10
The DNA expert indicated that, in practice, the ability
of a particular test to discern contributors to a sample would
depend on many factors, including, for example, whether the
sample came from a single source, was a full profile, or was
part of mixture.
 19

time of Wade's conviction had the discriminating power of one in

a few thousand. On these facts, we cannot say that the judge's

finding was clearly erroneous. Wade thus has satisfied

§ 3 (b) (5) (i), which, in turn, satisfies the requirements of

§ 7 (b) (3).

e. Attorney-client privilege and motion to strike. As

stated, Wade's postconviction counsel objected to questions

posed by the Commonwealth at the evidentiary hearing that sought

to pierce the attorney-client privilege, and his trial counsel

declined to answer the questions. The judge concluded that the

privilege had been waived, and ordered trial counsel to reveal

privileged communications; he also denied Wade's motion to

strike those answers. This was error.

The Commonwealth contends that the act of filing a motion

under the act necessarily waives a moving party's attorney-

client privilege, and that a moving party cannot assert the

privilege to prevent the Commonwealth from proving the "real

reason" testing was not conducted in a particular case.

Although a litigant implicitly may waive the attorney-client

privilege as to matters the litigant has placed at issue, see

Darius v. Boston, 433 Mass. 274, 277-278 (2001), such a waiver

is not applicable here, where Wade has not put "at issue"

privileged attorney-client communications regarding the reasons

that trial counsel did not seek DNA testing. See Mass. G. Evid.
 20

§ 523(b)(2) (2016) (privilege waived where person holding

privilege "introduces privileged communications as an element of

a claim or defense").

Wade maintains that he is entitled to the requested

analysis because it was not available at the time of his

conviction, see § 3 (b) (5) (i); this inquiry is objective and

does not require any information protected by the attorney-

client privilege. See Clair v. Clair, 464 Mass. 205, 219

(2013), quoting Darius v. Boston, supra at 284 ("there can be no

'at issue' waiver unless it is shown that the privileged

information sought to be discovered is not available from any

other source"). Moreover, even where a moving party proceeds

with a claim under § 3 (b) (5) (iv), which requires

consideration of what "a reasonably effective attorney" would

have done, that inquiry also is objective, and therefore does

not require testimony or an affidavit from trial counsel. See

Wade II, supra at 511-512.

We conclude that Wade did not effect an "at issue" waiver

by filing his petition, and his motion to strike all privileged

communications disclosed by trial counsel should have been

allowed.

4. Conclusion. The orders denying the motion for

scientific testing and denying the motion to strike are

reversed. The matter is remanded to the Superior Court, where
 21

an order shall enter that the requested scientific analysis be

conducted forthwith, and for further proceedings consistent with

this opinion.

So ordered.