Commonwealth v. Duguay

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revision and are superseded by the advance sheets and bound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-13312

COMMONWEALTH vs. TIMOTHY DUGUAY.

Plymouth. April 3, 2023. - July 28, 2023.

Present: Budd, C.J., Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.

Homicide. Deoxyribonucleic Acid. Evidence, Scientific test.
Practice, Criminal, Postconviction relief, New trial,
Discovery.

Indictment found and returned in the Superior Court
Department on November 7, 1995.

Following review by this court, 430 Mass. 397 (1999), a
motion for a new trial, filed on September 22, 2020, was heard
by William F. Sullivan, J., and a motion for postconviction
discovery, filed on February 25, 2021, was considered by him.

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

Michael A. Nam-Krane for the defendant.
Arne Hantson, Assistant District Attorney, for the
Commonwealth.
Lisa M. Kavanaugh, Committee for Public Counsel Services,
Michael A. Albert, Emma L. Frank, Anne Weeks, Stephanie Roberts
Hartung, & Claudia Leis Bolgen, for New England Innocence
Project & others, amici curiae, submitted a brief.
 2

CYPHER, J. Following a jury trial, the defendant, Timothy

Duguay, was convicted of murder in the first degree on the

theory of extreme atrocity or cruelty. This court affirmed the

defendant's conviction on direct appeal. Commonwealth v.

Duguay, 430 Mass. 397 (1999). Years later, the defendant filed

a motion for postconviction forensic and deoxyribonucleic acid

(DNA) analysis pursuant to G. L. c. 278A, § 2, which was

allowed. Following the postconviction forensic analysis, the

defendant filed a motion for a new trial. The motion was denied

after a nonevidentiary hearing.1

The defendant filed with this court a timely notice of

appeal and a petition, pursuant to G. L. c. 278, § 33E, for

leave to appeal from the denial of the motion for a new trial.

A single justice granted the defendant's petition.2 On appeal,

the defendant argues that the new forensic analysis demonstrates

that the Commonwealth's blood and DNA trial evidence was

unreliable and that a confluence of factors demonstrates that

justice was not done in this case, thus requiring a new trial.

1 The defendant also filed a motion for postconviction
discovery. The motion judge did not rule on the motion; thus,
it implicitly was denied. See Commonwealth v. Dubois, 451 Mass.
20, 29 (2008), citing Commonwealth v. Rosado, 450 Mass. 657, 659
(2008) ("The failure of a judge to rule on a motion is treated
as an implicit denial").

2 The single justice also allowed the defendant leave to
appeal from the denial of his motion for postconviction
discovery.
 3

For the reasons set forth infra, we affirm the denial of the

defendant's motion for a new trial.3

Background. The facts surrounding the murder are set forth

in detail in Duguay, 430 Mass. at 398-400. "We summarize those

facts here and supplement them with other relevant facts from

the trial record and the facts found by the motion judge to be

significant with respect to the defendant's motion for a new

trial, all of which are supported by the record." Commonwealth

v. Sullivan, 469 Mass. 340, 341 (2014).

The victim, Robert Madera, lived with his mother in

Wareham. The defendant lived a short walking distance away.

When the defendant was seventeen years old and the victim was

twelve years old, they became involved in an on-and-off intimate

relationship, which would continue for the next five years until

the victim's death at the age of seventeen.4 Duguay, 430 Mass.

at 398.

The defendant and victim's relationship included many

disagreements and growing animosity prior to the victim's death.

When the victim was twelve, the defendant "constantly came

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

4 The defendant was twenty-three years old at the time of
the murder. Commonwealth v. Duguay, 430 Mass. 397, 398 (1999).
 4

around looking for [him], asking where he was and what he was

doing." The victim would sneak out of his own home to go to the

defendant's home, and during this time, the defendant told the

victim's stepfather that he and the victim were in a sexual

relationship and that he loved the victim.

When the victim was about fourteen, the victim's mother

asked the defendant to stay away from her son. The defendant

became angry, telephoned the victim's mother's house, called her

uncomplimentary names, and told her to mind her own business.

These harassing telephone calls, in which the defendant used

vulgar language toward the victim's mother, continued for some

time. The victim's mother would change her telephone number,

but the defendant always found a way to obtain her new telephone

number.

The defendant's harassment of those close to the victim

went beyond the victim's immediate family. When the victim was

in tenth grade, the defendant told the victim's then girlfriend

that he loved the victim. The defendant repeatedly would ask

the victim's girlfriend to persuade the victim to perform oral

sex on him. After the victim revealed to his girlfriend that

the defendant had performed oral sex on him, the defendant began

to telephone her house and harass her, bragging that he had had

sex with the victim.
 5

During the summer of 1995, the defendant talked often to

his girlfriend about the victim. He told her that the victim

played games, lied, and "fucked with his mind." The defendant

told his girlfriend that he was going to blackmail the victim by

threatening to tell those close to the victim about their

intimate relationship. The defendant also said that if the

victim threatened to tell anyone that the defendant had molested

him, the defendant would just say "that [the victim] had enjoyed

it." The defendant also telephoned his girlfriend's cousin

during this time and told her that he was arguing with the

victim and that he would like to kill him. That summer, when

the victim and his girlfriend drove by the defendant, the

defendant called her a "bitch" and yelled at her that he was

"going to fuck her up."

In the weeks before the victim's death, he acted fearful

and nervous, slept in his clothes, and kept the lights on at

night. The victim believed that police were watching him before

his upcoming Juvenile Court date.5 During this time, the

victim's uncle, Robert Gomes, had moved from Rhode Island to the

victim's family home. The victim believed that his uncle was

staying with them because "people" were after his uncle, who had

been forced to leave Rhode Island. The victim told his then

The victim told a prior girlfriend that he had "committed
5

a breaking and entering a long time ago."
 6

girlfriend that someone was going to kill him and that he was

afraid of "getting caught in the middle" of the uncle's alleged

dispute. The victim's uncle did not leave Rhode Island,

however, because someone was after him, and he had not told the

victim so. Instead, the victim's uncle had left Rhode Island to

seek help for his substance disorder. Nonetheless, the victim

continued to be fidgety and nervous.

The growing animosity between the defendant and the victim

continued in the days leading up to the victim's death. See

Duguay, 430 Mass. at 398. "Four days before the victim's death,

the defendant received a judgment against the victim." Id. The

judgment stemmed from money the victim had borrowed from the

defendant. See id. The victim offered to repay the defendant.

However, the defendant stated that he would rather have the

victim spend the night with him than be repaid the money owed

under the judgment. Id. "That evening, . . . a Thursday, the

defendant and the victim spent the night together and were

intimate." Id. The defendant and victim had planned to spend

Sunday night together, the night before the murder, but the

victim had gone out with a female friend and spent the night at

his own home. See id.

On the day of the murder, the victim was agitated and

wanted to visit his mother at her place of work, telling her

that he needed to talk to her. The victim had spent some time
 7

that day with his girlfriend and told her "that if he told her

what was going on, she would not love him and would leave him."

The victim indicated that something happened when he was twelve

years old and that he had been warned never to tell anyone.

That same day, after the victim did not spend Sunday night

at the defendant's home, the defendant telephoned the victim and

demanded to know where the victim had been the night before.

Duguay, 430 Mass. at 398. The victim's mother's cousin, who

lived next door, was listening to a police scanner on the

evening of the murder and heard the defendant loudly and angrily

accuse the victim of standing him up. The cousin also heard the

defendant tell the victim that he was coming over to tell the

victim's mother "everything" and was going to "fuck up" the

victim. The defendant drove to the victim's house twice on the

day of the murder, but each time, the victim refused to talk to

the defendant and told him to leave.6 Id. at 398-399.

Approximately one to two hours before the murder, the

defendant told a friend that the victim was supposed to spend

the night with him but did not. Duguay, 430 Mass. at 399. He

told her that he was tired of being hurt by the victim and said

6 After the defendant had driven to the victim's home to
speak with the victim, and the victim told the defendant to
"leave [him] alone," the victim told his uncle, Joseph
Vasconcelos, "Timmy Duguay is a pain in the ass. He just keeps
bugging me, he won't leave me alone."
 8

that he was going to kill the victim. Approximately twenty

minutes before the murder, the defendant telephoned the victim's

home and left a voice message for the victim's mother. Id. In

the message, the defendant told the victim's mother that he had

been having a sexual relationship with the victim, that the

victim was "going to answer for the head games he's played with

[the defendant]," and that the victim was not going to threaten

the defendant "because [the defendant was] just going to turn

[him]self in and [he has] already started that." Id. The

defendant also warned the victim's mother that she ought to "get

ready for a fun ride at the courthouse." Id.

Around 7:15 P.M. on the night of the murder, a friend of

the victim telephoned him, but the victim said he could not talk

because "someone was coming," and the victim hung up. When the

friend telephoned again, the victim sounded scared, said that

someone was coming, and then said that someone was there with

him at the house. The victim told her "to never call back and

hung up." When the friend drove to the victim's home at

approximately 7:40 P.M., she knocked on the front door and

honked her car horn but received no response.

At approximately 7:50 P.M., the victim's aunt, who lived in

a neighboring house, was walking her dog and saw the victim walk

out the front door of the home and fall to the ground face down.

The victim's face was smeared with blood, and the aunt rushed
 9

into the home to call for an ambulance. As the ambulance was

driven onto the victim's street, the driver saw someone in dark

clothes walking in the opposite direction from the victim's

home. Duguay, 430 Mass. at 399. Although there were loud

screams coming from the direction of the victim's home, the

dark-clothed person did not turn around or react in any way and

continued to walk away. See id.

The victim could not speak, was struggling to breathe, and

had multiple stab wounds to his neck, face, and chest. Duguay,

430 Mass. at 399. He died in the ambulance en route to a

hospital. Police were dispatched to the crime scene and learned

that the defendant's vehicle was seen being driven from the

victim's house earlier that evening.7 Id. This prompted police

to go to the defendant's house.8 Id.

When police arrived at the defendant's house, he told them,

"I knew you were coming." The defendant was then read his

Miranda warnings and agreed to go to a police station to talk.

While in the back seat of the police cruiser, the defendant

asked what police wanted to know. When an officer responded

that the defendant should just tell them what happened, the

7 An officer collected as evidence a steak knife on the
staircase by the sliding door. The knife did not appear to have
blood on it.

8 Police ultimately looked at other suspects after speaking
to the victim's uncle, Robert Gomes.
 10

defendant replied, "If I tell you what happened you'll put me

away for the rest of my life."

On arriving at the police station, the defendant was read

the Miranda warnings again and was interviewed. Duguay, 430

Mass. at 400. The defendant was sweating and appeared nervous.

He initially denied his sexual relationship with the victim, but

after police told the defendant that they knew of the voice

message that he left for the victim's mother, he admitted to his

relationship with the victim. Id. The defendant told police

that he was tired of the victim playing "head games," as the

victim had threatened to send the defendant to jail for life for

raping him when the victim was twelve.

The defendant also admitted that he had lent money to the

victim and obtained a judgment against him. He also told police

that the victim recently had "started hanging around with a bad

crowd," and that he had telephoned police to report the victim

and his friends for illegal activities. The defendant admitted

that he had argued with the victim in the days before the murder

and thought that the victim's family might have telephoned

police because of their argument.

During the interview, the defendant was wearing the same

dark clothes as he had been wearing since the middle of the day.

Duguay, 430 Mass. at 400. An officer observed the defendant's

hands and arms and did not observe any blood or recent wounds.
 11

With the defendant's consent, the defendant was fingerprinted

and had his clothes tested for blood by a State police chemist,

Lori Bunnell.

Bunnell performed an ortho-tolidine screening test for the

presence of blood on the defendant's hands. Bunnell testified

that any type of blood, including human, animal, and insect

blood, and blood from meat, would cause a positive reaction.

Human blood causes an immediate bright blue reaction, while

slower reactions can be caused by vegetation, rust, and

detergents.9 Other bodily fluids like saliva and feces also

would cause a reaction. A positive ortho-tolidine test result

is indicative of the presence of blood, but it does not prove

that the substance is blood. Thus, the ortho-tolidine testing

is presumptive testing only for blood.

There was no visible blood on his hands, fingernails, or

clothes. Bunnell's testing revealed that the defendant's left

hand was positive between his fingers and on the palm, but not

on the back of his hand. The defendant's right hand tested

positive between his fingers, on his palm, and on the back of

his hand. Further testing was done on the defendant's sneakers

and socks and the soles of his feet. The bottoms of the

9 Bunnell did not photograph or videotape the chemical
reaction.
 12

defendant's sneakers and the soles of his feet tested positive,

but his socks tested negative.

Bunnell then conducted further ortho-tolidine testing in

the victim's house. The bottom of the bathroom sink and its

handles tested positive. Swabs of the visible blood were taken

and were determined to be human blood. Hair also was collected

from a knife on the kitchen floor; however, the hair sample was

too small for identification.

Bunnell then conducted the same testing at the defendant's

house. The light switch near the entrance door tested positive.

Red drops on the wall behind the sink tested negative. However,

the base of the sink, the tub faucet, the shower head, and the

bathtub tested positive.10 The same testing was done to the

defendant's car. The outside and inside of the driver's side

door, the trunk, the passenger's seat, and the car keys tested

negative, but the steering wheel, the gear shift, the brake and

gasoline pedals, and the driver's seat tested positive.

After conducting testing at the defendant's and victim's

respective homes, Bunnell returned to the police station to

perform more testing on the defendant. Bunnell tested the

defendant's sneakers, turtleneck shirt, jeans, and jacket.

10Bunnell conceded at trial that blood can fall into a sink
when someone is shaving. The defendant's mother also recently
had had surgery and had a leg and some toes amputated,
unbeknownst to Bunnell.
 13

Parts of the turtleneck shirt tested positive, as well as each

leg of the defendant's jeans. The interior of the pockets of

the defendant's jeans tested negative. The front and back of

the defendant's jacket tested positive, but not the collar or

the interior pockets. The jacket had an approximately three-

eighths inch cut on the right sleeve.

Rectal swabs taken from the victim also were examined by

Bunnell. The swabs contained a relatively small amount of sperm

cells. The semen was type B blood, even though the defendant

has type A blood. Bunnell also examined hair evidence found on

the defendant's sneakers. The human hair was not similar to

samples of hair of either the defendant or victim.

A State police crime laboratory (crime lab) serologist also

was called on to examine blood and saliva samples from the

defendant, blood samples from the crime scene, and blood samples

and rectal swabs from the victim. The serologist determined

that the blood from the crime scene was consistent with the

victim's blood, and that none of the blood at the crime scene

was consistent with that of the defendant. The serologist also

examined the rectal swabs taken from the victim and detected

type B blood from the sample but could not opine on whether the

type B blood came from sperm cells or mucus.11

11The defendant has type A blood, and is a secretor, such
that he secretes his blood type into any bodily fluids. The
 14

After analysis of photographs and video recordings of the

crime scene by a State police trooper trained in bloodstain

analysis, the trooper testified that it was his opinion that the

victim was attacked from behind on the couch, stumbled across

the room, grabbed onto various items of furniture for support,

stumbled toward and out of the front door, and fell onto the

front lawn. In closing, the Commonwealth emphasized the soured

relationship between the defendant and the victim, and the

incriminating statements made by the defendant to his girlfriend

shortly before the murder, as well as to the victim's mother and

police. The Commonwealth also emphasized that the ortho-

tolidine tests that came back positive were indicative of the

presence of blood. The Commonwealth, however, did not mention

the unidentified hairs found on the kitchen floor or on the

knife.

Defense counsel emphasized the lack of physical evidence,

i.e., fingerprints, blood, or hair, conclusively tying the

defendant to the victim's murder. Defense counsel emphasized

that, although the murder scene was a "blood bath," there was no

conclusive proof of blood on the defendant's hands, clothes, or

car. Defense counsel attacked the presumptive ortho-tolidine

testing as too sensitive to too many different substances.

victim had type B blood, but the serologist could not determine
whether he also was a secretor.
 15

Defense counsel also emphasized that the hair found on the knife

at the crime scene did not match that of either the defendant or

the victim. Defense counsel then emphasized the victim's

alleged fear of anonymous drug dealers who, the victim claimed,

were after his uncle.

The jury convicted the defendant of murder in the first

degree on a theory of extreme cruelty or atrocity. This court

affirmed the conviction on direct appeal. See Duguay, 430 Mass.

at 398. In his direct appeal, we concluded that the ortho-

tolidine screening tests were not unfairly prejudicial without

confirmatory testing, particularly where the defendant "freely

and repeatedly pointed out the limitations of the test." Id. at

402.

In 2016, following multiple pro se motions by the

defendant, as well as a petition for Federal habeas corpus

review, the defendant filed a motion for postconviction DNA

analysis pursuant to G. L. c. 278A. The motion was allowed.

The defendant then filed a motion for a new trial and, in

support, presented forensic retesting of the evidence examined

by Bunnell.

The forensic retesting of the evidence included serology

and short tandem repeat (STR) analysis DNA testing on the knife,

and the defendant's jeans, jacket, turtleneck shirt, and

sneakers. STR testing also was conducted on the broken knife
 16

handle, the hair from the knife, and a hair sample from the

victim's uncle.12

STR analysis on the left exterior pocket of the defendant's

jeans, although inconclusive, contained a mixed profile with one

male contributor. The front knee areas of the jeans had on them

DNA consistent with that of the defendant, and the victim was

excluded as the source of that DNA profile. The same was true

about the back of the right knee of the defendant's jeans. The

testing on the exterior front right pocket, back right pocket,

back of the left knee, and back left pocket also was

inconclusive.

STR analysis on the jacket resulted in a mixture of two

profiles on the exterior front left chest; both the defendant

and victim were excluded as contributors of those profiles. The

remainder of the testing on the jacket either was inconclusive

or produced no DNA profile. The same is true of the defendant's

turtleneck shirt, as no conclusions could be made about a

partial DNA profile that was discovered on the turtleneck shirt.

Analysis of the defendant's sneakers also resulted in the

12The defendant submitted an affidavit of a private
forensic DNA consultant who averred that the new short tandem
repeat (STR) analysis testing kits were more sensitive than
methods used at the time of the victim's murder. The test used
was the extremely sensitive PowerPlex Fusion 6C DNA test, which
was one of the latest generations of STR tests.
 17

detection of a partial mixed profile, but again, no conclusion

could be drawn from it.

Finally, a DNA profile on the knife blade and handle

matched the victim and excluded the defendant. The same applies

to a DNA profile from blood spatter on the wall behind the

couch. DNA on a cigarette from the crime scene matched that of

the victim and excluded the defendant, which also was the result

of sperm fractions taken from the victim's rectum with a rectal

swab.

The defendant also obtained mitochondrial DNA (mtDNA)

testing on hair samples taken from the knife at the crime scene,

as well as from the victim's maternal uncle. The testing

excluded Gomes and his maternal relatives as contributors to the

hairs on the knife, and also excluded the defendant.

In addition to DNA analysis, phenolphthalein presumptive

blood testing was performed on many of the areas that tested

positive during Bunnell's ortho-tolidine testing, including the

defendant's sneakers, turtleneck shirt, jeans, and jacket. The

defendant's jeans tested negative. His jacket tested

inconclusive yet contained a component that reacted with

phenolphthalein. The turtleneck shirt and sneakers tested

negative; however, the knife and knife handle tested positive.

The defendant also presented an affidavit from William

Best, a certified forensic examiner who reviewed the defendant's
 18

case file, including police and forensic reports, as well as

trial testimony of Bunnell and the State serologist. Best

averred that presumptive tests like ortho-tolidine tests do not

prove the presence of blood with certainty and may give false

positive and negative results.13 Best raised doubts as to the

validity of the ortho-tolidine results. For example, based on

Bunnell's laboratory notes, Best averred that several test

results she reported as positive were only "weak positive"

results and therefore should have been reported as negative

results.14

In response to the forensic and DNA evidence submitted by

the defendant, the Commonwealth submitted an affidavit of its

own expert, Diane Biagiotti, a forensic scientist in the DNA

unit of the State police crime lab. She averred that

environmental factors, such as heat, humidity, and sunlight, as

well as the passage of time, can degrade DNA samples, thus

affecting any DNA profile obtained. Biagiotti averred that DNA

13The defendant submitted a 1991 article from the Journal
of Forensic Sciences that phenolphthalein is the best
presumptive test for blood because it is the most specific and
does not react to plant peroxidases like the ortho-tolidine
testing. Cox, A Study of the Sensitivity and Specificity of
Four Presumptive Tests for Blood, 36 J. Forensic Sci. 1503,
1503-1511 (Sept. 1991).

14The defendant also introduced an affidavit from Tracey
Ray, a forensic chemist and consultant, who echoed the opinion
of Best that Bunnell should not have reported certain tests as
positive. Ray viewed Bunnell's trial testimony as misleading.
 19

profiles taken so many years later may not be suitable for

comparison. Furthermore, she also declared that STR DNA

testing, while human specific, cannot determine from which types

of cells or biological fluid the DNA profile originated.

Despite the recent DNA and forensic analysis discussed

supra, the motion judge denied the defendant's latest motion for

a new trial. The judge found that neither the phenolphthalein

presumptive blood testing nor the mtDNA testing was newly

discovered.15 While STR DNA testing was available at the time of

trial, the specific PowerPlex Fusion 6C DNA test was not. Thus,

the motion judge concluded that the evidence was newly

discovered. Where the evidence provided only impeachment value,

and merely was cumulative of much of the other evidence at

trial, the motion judge concluded that the new evidence did not

cast real doubt on the justice of the defendant's conviction.

The defendant filed a timely notice of appeal in the

Superior Court. In the county court, he then filed a petition

for leave to appeal from the denial of his motion for a new

trial pursuant to G. L. c. 278, § 33E, which was granted by a

single justice.

15Although the judge found that this testing did not
constitute newly discovered evidence, he determined that the
evidence did not create a substantial risk of a miscarriage of
justice. The same is true for the defendant's argument in his
motion that there was a confluence of factors that warranted the
order of a new trial.
 20

Discussion. "Rule 30 (b) of the Massachusetts Rules of

Criminal Procedure, as appearing in 435 Mass. 1501 (2001),

authorizes a judge to 'grant a new trial at any time if it

appears that justice may not have been done.'" Commonwealth v.

Watkins (No. 1), 486 Mass. 801, 803-804 (2021). See

Commonwealth v. Mazza, 484 Mass. 539, 551 (2020). "A motion for

a new trial is addressed to the sound discretion of the judge."

Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020). Generally,

"[a]n appellate court will examine the motion judge's conclusion

only to determine whether there has been a significant error of

law or other abuse of discretion." Id., quoting Commonwealth v.

DiBenedetto, 458 Mass. 657, 664 (2011). However, where the

motion judge neither presided over the trial nor conducted an

evidentiary hearing, we are in as good a position as the motion

judge to assess the documentary evidence found within the

record, thus allowing this court to review the judge's decision

de novo. See Mazza, supra at 547.

Where the defendant's motion for a new trial is based on

new evidence, the defendant must demonstrate that (1) "the

evidence is either 'newly discovered' or 'newly available,'" and

that (2) "it 'casts real doubt' on the justice of the

defendant's conviction." See Sullivan, 469 Mass. at 350. See

also Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986). "New

evidence will cast real doubt on the justice of the conviction
 21

if there is a substantial risk that the jury would have reached

a different conclusion had the evidence been admitted at trial."

Sullivan, supra, citing Grace, supra at 306.

1. STR DNA testing. First, the defendant argues that the

STR DNA testing is newly available evidence that would have

played a role in the jury's deliberations. More specifically,

the defendant alleges that the DNA results obtained from the

retesting of the defendant's clothes and sneakers and the murder

weapons casts real doubt on the justice of the defendant's

conviction.

Before analyzing whether the STR DNA testing casts such

real doubt, we must first analyze whether the evidence

constitutes "newly discovered," or "newly available," evidence.

See Grace, 397 Mass. at 306 (defendant must demonstrate that new

evidence was "unknown to the defendant or his counsel and not

reasonably discoverable by them at the time of trial"). While

the motion judge found that STR DNA testing existed at the time

of the defendant's trial, see Commonwealth v. Rosier, 425 Mass.

807, 811-813 (1997), the particular test, i.e., the PowerPlex

Fusion 6C DNA test, is an extremely sensitive, new generation of

STR DNA testing that was not available in 1997. Therefore, we

conclude that the defendant has satisfied his initial burden,

i.e., that the STR DNA testing constitutes newly available

evidence. See Sullivan, 469 Mass. at 350 n.6 (particular
 22

forensic testing methodology that had not yet been developed or

gained acceptance by courts may constitute newly available

evidence).

Because the STR DNA testing constitutes newly available

evidence, our analysis hinges on whether such evidence would

have been a real factor in the jury's deliberations, such that

it would have cast real doubt on the justice of the defendant's

conviction. See Commonwealth v. Lessieur, 472 Mass. 317, 331,

cert. denied, 577 U.S. 963 (2015), quoting Commonwealth v.

Santiago, 458 Mass. 405, 415 (2010) ("A defendant seeking a new

trial on the ground of newly discovered evidence must establish

both that the evidence is newly discovered and that it casts

real doubt on the justice of the conviction" [emphasis added]).

The defendant argues that the STR DNA testing swabbed the

exact same areas of the defendant's clothes and sneakers that

Bunnell testified were positive for the presence of blood, and

obtained partial DNA profiles from three small areas of the

defendant's jeans and one small area of the defendant's jacket,

which excluded the victim as a possible contributor. Where the

victim was excluded from the partial DNA profiles collected from

the defendant's jeans, the defendant argues that the DNA

evidence demonstrated that the victim's blood was absent from

the defendant's clothes; thus, the defendant contends, this

evidence conclusively refuted Bunnell's testimony that the
 23

ortho-tolidine testing indicated the presence of blood on his

clothes. Therefore, the defendant argues that Bunnell's

testimony and the admission of her handwritten notes were

improper.

The defendant's argument is somewhat misleading, however,

because it assumes that, because the victim conclusively was

excluded from these partial DNA profiles, it necessarily also

must follow that the victim's DNA entirely was not present on

the defendant's clothes. While the STR DNA testing excludes the

victim as a contributor to the specific partial DNA profiles

found on the defendant's jacket and jeans, most, if not all, of

the other DNA testing was inconclusive at best. Much of the

other partial DNA profiles from the defendant's clothes could

not either include or exclude the victim as a possible

contributor. The same is true from the testing of the

defendant's sneakers, because while a partial DNA profile was

found on the sneakers, no conclusion could be drawn as to

whether the victim was included as a contributor to the profile.

The defendant compares the STR DNA testing to the

additional testing done in Commonwealth v. Cowels, 470 Mass. 607

(2015). In Cowels, the Commonwealth introduced two bloodied

towels at trial to suggest that both defendants had used the

towels to clean themselves after stabbing and killing the

victim. Id. at 607-608. Testing of the towels at that time,
 24

however, neither identified nor excluded the defendants and the

victim as the sources of the blood. Id. at 608. It was not

until additional testing was done on one of the towels, years

after the defendants' convictions had been affirmed, that it was

revealed that the blood on the towel conclusively did not belong

to either the defendants or the victim, but instead belonged to

an unidentified male. Id. In ordering a new trial, this court

emphasized that there was no other forensic evidence at the

crime scene, except the towel, that was linked to the

defendants. Id. at 619. In a case with a "dearth of physical

evidence," the towels served as the most important piece of

evidence to corroborate the testimony of the prosecution's key

witness, who presented significant credibility issues. See id.

Thus, the towels likely were a real factor in the jury's

deliberations and ultimate convictions of the defendants. Id.

at 623-624.

Unlike in Cowels, where it conclusively was proved that

none of the blood found on the towel belonged to either the

defendant or the victim, the STR DNA testing of the defendant's

clothes and sneakers does not exclude both the defendant and the

victim as the contributor of the partial DNA profile. See id.

at 620 (new testing conclusively established that blood did not

come from either defendants or victim). It also does not point

conclusively to an unidentified male, as did the additional
 25

testing done in Cowels. See id. Rather, the STR DNA testing

only conclusively excludes the victim as a contributor to a

partial DNA profile on three small areas of the defendant's

jeans and one small area on his jacket.

Furthermore, in Cowels, the bloodied towel was the only

piece of physical evidence that linked the defendants to the

bloody stabbing. See id. at 621. See also Sullivan, 469 Mass.

at 352 (purported blood on defendant's cuffs and hair in

defendant's pocket were "sole pieces of evidence indicating the

defendant had been in the presence of the victim during the

killing"). Here, there were numerous other pieces of physical

evidence, beyond the defendant's jacket and jeans, that tested

positive for the presence of blood following ortho-tolidine

testing that would still link the defendant to the murder.16

At best, where the vast majority of the additional STR DNA

testing rendered inconclusive results, and where only the victim

was excluded from partial DNA profiles recovered from only four

of the many small areas of the victim's clothes that were

16Other pieces of evidence that tested positive for the
presence of blood following ortho-tolidine testing, excluding
the defendant's jeans and jacket, included the following: the
defendant's hands, his sneakers, the soles of his feet, the
light switch at his home, the bathroom sink, the bathtub faucet,
the movable shower head in the bathtub, the bottom tile of the
bathtub, the steering wheel of his car, the gear shift, the
brake and gasoline pedals, the driver's seat, and the victim's
bathroom sink.
 26

retested, the additional testing would serve only to impeach

Bunnell's testimony that the presumptive ortho-tolidine testing

indicated the presence of blood on the defendant's clothes. Cf.

Cowels, 470 Mass. at 620 (test that would exclude definitively

defendants and victim as source of DNA profile, and instead

would point to unidentified male as source of DNA, would not

merely reduce weight that jury might give evidence, but would

instead bar admission of such evidence). It does not, as the

defendant argues, serve as a bar to the admission of Bunnell's

testimony that the ortho-tolidine testing returned positive

results for the presence of blood on much of the defendant's

clothes. See id.

Moreover, the impeachment value of the additional STR DNA

testing also likely is to be quite low because the defendant

"freely and repeatedly pointed out the limitations of the

[ortho-tolidine] test." Duguay, 430 Mass. at 402. Although the

prosecutor did allude to the importance of Bunnell's testimony

on the ortho-tolidine testing, this argument followed defense

counsel's powerful cross-examination of Bunnell in which defense

counsel had asked her, "Now, in your -- and by the way, your

testimony regarding the ortho-toluidine test, you do not mean to

leave with this jury that you found blood on this young man,

[the defendant], do you?" Bunnell replied, "No." In multiple

follow-up answers after continued cross-examination from defense
 27

counsel, Bunnell confirmed that she was not testifying that the

presence of blood was found on the defendant.

These pieces of physical evidence, i.e., the defendant's

jacket and jeans, were not the linchpin in the Commonwealth's

case. Cf. Commonwealth v. Cameron, 473 Mass. 100, 110 (2015)

(DNA evidence from complainant's underwear tipped scale against

defendant at trial, and newly discovered evidence eliminated

defendant as source of semen on complainant's underwear, thus

negating key piece of physical evidence that was real factor in

corroborating complainant's testimony). The strength of the

Commonwealth's case primarily was built on the other largely

circumstantial evidence of the defendant's guilt, which included

the defendant's hostility toward the victim following the

turmoil in their intimate relationship, the defendant's threat

to the victim to come over and "fuck him up," the defendant's

statement to a third party prior to the murder that he wanted to

kill the victim, the defendant's proximity to the victim's house

and opportunity to commit the crime, statements to police that

demonstrated a consciousness of guilt,17 and threatening

telephone calls to the victim's mother in which the defendant

17After the defendant received the Miranda warnings, an
officer asked the defendant to tell the officers what had
happened. The defendant replied, "If I tell you what happened
you'll put me away for the rest of my life."
 28

told her to "get ready for a fun ride at the courthouse."18

Duguay, 430 Mass. at 399.

Ultimately, "[t]he weight and credibility of the evidence

is the province of the jury." Commonwealth v. Dubois, 451 Mass.

20, 28 (2008). "Newly discovered evidence that tends merely to

impeach the credibility of a witness will not ordinarily be the

basis of a new trial." Commonwealth v. Sleeper, 435 Mass. 581,

607 (2002), quoting Commonwealth v. Lo, 428 Mass. 45, 53 (1998).

Where much of the STR DNA testing rendered inconclusive results,

and where the additional testing that excluded the victim as the

contributor to a small number of partial DNA profiles would have

been admissible only to impeach the already powerfully impeached

testimony from Bunnell, we conclude that the newly available

evidence likely would not have been a real factor in the jury's

18The defendant also argues that additional STR DNA testing
on the murder weapons, i.e., the knife and the broken knife
handle that were found, casts real doubt on the justice of the
defendant's conviction. STR DNA testing revealed three partial
profiles on the weapons, which statistically included the victim
as the source and statistically excluded the defendant as the
source. Contrary to the defendant's argument, this additional
evidence only would have served for impeachment value, similar
to the STR DNA testing performed on the defendant's clothes that
was discussed supra. See Commonwealth v. Upton, 484 Mass. 155,
168 (2020) (additional newly available impeachment evidence
generally does not warrant new trial). Therefore, the
additional testing does not cast real doubt on the justice of
the defendant's conviction, particularly in light of the
strength of the other evidence strongly supporting the
defendant's guilt. See id.
 29

deliberations and does not cast real doubt on the justice of the

defendant's conviction. Sullivan, 469 Mass. at 350-351.

2. Seminal fluid residue. The defendant argues that the

testing of two swabs of the victim's rectum, which revealed two

partial DNA profiles that were consistent with the victim,

demonstrates that the defendant was not the contributor of the

semen evidence. The defendant claims that the newly available

DNA evidence that excludes him as a possible donor of the

seminal fluid residue would have been a real factor in the

jury's deliberations and thus warrants a new trial. We

disagree.

Even assuming that the DNA testing on the two swabs from

the victim's rectum constitutes newly available evidence, the

evidence does not cast real doubt on the justice of the

conviction. At trial, the Commonwealth's serologist declined to

exclude conclusively the defendant as the donor of the seminal

fluid residue. She instead testified that she could form no

conclusion as to the source of the sperm. While the DNA testing

certainly would impeach this testimony from the Commonwealth's

serologist, evidence that tends only to impeach the

Commonwealth's witness generally is insufficient to warrant a

new trial. See Sleeper, 435 Mass. at 607 (newly discovered

evidence that tends only to impeach credibility of witness not

ordinarily grounds for new trial). See also Commonwealth v.
 30

Mitchell, 62 Mass. App. Ct. 769, 776 (2005) (same).

Furthermore, although the serologist declined to exclude the

defendant as a contributor, her testimony already was impeached

powerfully when she acknowledged both that the seminal fluid

residue was type B blood and that the defendant had type A

blood.

The additional DNA evidence also merely would have been

cumulative of the other evidence presented at trial, which

overwhelmingly demonstrated that the defendant and victim were

in an intimate relationship. Compare Commonwealth v. Eagles,

491 Mass. 210, 222 (2023) (hair evidence cumulatively pointed to

strong, overwhelming showing that defendant was in fact

perpetrator), with Sullivan, 469 Mass. at 352 (blood on

defendant's cuffs and hair in defendant's pockets were different

in kind and not merely cumulative of other evidence at trial).

To the extent that the defendant argues that the seminal fluid

was a key factor for the Commonwealth's theory of the

defendant's motive,19 i.e., that he was a "jilted lover," there

was extensive evidence presented at trial that the defendant and

victim were in an on-and-off intimate relationship before the

victim's death, irrespective of the evidence of the seminal

fluid residue. Such evidence included that (1) the defendant

19Contrary to the defendant's argument, the Commonwealth
did not address the semen evidence in its closing argument.
 31

told the victim's stepfather that he and the victim were in a

sexual relationship; (2) the defendant told the victim's prior

girlfriend that he loved the victim; (3) the defendant harassed

the victim's previous girlfriend to persuade the victim to

perform oral sex on him; (4) after the victim revealed to his

girlfriend that the defendant had performed oral sex on him, the

defendant began to call her house to harass her, bragging that

he had had sex with the victim; (5) after the defendant obtained

a judgment against the victim in the days leading up to the

murder, they were intimate because the defendant told the victim

that he would rather have relations with the victim than be paid

the money owed under the judgment; and (6) the defendant

himself, in perhaps the most impactful evidence of the intimate

relationship, admitted to his sexual relationship with the

victim both in a telephone call to the victim's mother

approximately twenty minutes before the murder and to the police

during questioning. Duguay, 430 Mass. at 399-400. Therefore,

we conclude that the evidence of the seminal fluid residue does

not cast real doubt on the justice of the defendant's

conviction. Sullivan, 469 Mass. at 350-351.

3. Forensic testing of hair. The defendant argues that

the additional mtDNA testing revealed that the hair found on the

murder weapon belonged to neither the defendant nor the victim.

Such testing was done on the hair found on the murder weapon,
 32

the hair taken from the victim's maternal uncle, and a saliva

sample taken from the defendant. The testing revealed that the

defendant, Gomes, and all of their maternal relatives were

excluded as the source of the hair on the knife.

The victim is a maternal relative of his uncle, Gomes, and

where Gomes's maternal relatives were excluded as the source of

the hair, the defendant argues that the new mtDNA testing

conclusively excludes the victim as a source of the hair

evidence. This new conclusive evidence would have been a real

factor in the jury's deliberations, according to the defendant,

and casts real doubt on the justice of the defendant's

conviction.20

20 The Commonwealth disagrees with the defendant's argument
that the additional mtDNA testing conclusively excludes the hair
as that of the victim. The motion judge did not have the
benefit of the results of the most recent DNA tests performed,
which the Commonwealth provided in its appendix in this appeal.
The Commonwealth claims that the results of the most recent
testing confirm that the hair on the murder weapon belonged to
the victim because the partial DNA profile matched the victim.
The defendant disagrees because Bunnell testified that the hair
was found adhered to the blood found on the murder weapon and
argues that it was the victim's blood that produced the match of
the victim to the partial DNA profile that was discovered.
Notwithstanding this factual dispute between the parties, where
we conclude infra that the additional testing would have been at
best cumulative of the evidence presented at trial, i.e., that
the hair belonged to neither the defendant nor the victim, the
evidence does not cast real doubt on the justice of the
defendant's conviction and does not entitle the defendant to a
new trial. See Commonwealth v. Moore, 489 Mass. 735, 749
(2022).
 33

The motion judge found that the defendant failed to

demonstrate that mtDNA testing was unavailable in 1997 at the

time of the defendant's trial. See Commonwealth v. Baker, 440

Mass. 519, 528 (2003) (mtDNA analysis of hair available in

1997). Nonetheless, even if we were to assume that the

additional mtDNA testing constitutes newly discovered evidence,

the evidence would not have been a real factor in the jury's

deliberations. At trial, Bunnell testified that the hair sample

found from the knife microscopically was compared to hair

samples taken from the defendant and the victim. Bunnell

testified that the hair sample was similar to neither the

defendant's nor the victim's hair. The defendant thus was able

to argue to the jury that the murder was committed by an

unidentified third-party culprit, an argument clearly rejected

by the jury. See Commonwealth v. Barry, 481 Mass. 388, 400,

cert. denied, 140 S. Ct. 51 (2019) (although exculpatory

evidence further would call into question credibility of

witness, jury clearly opted to convict defendant despite such

extensive credibility issues). Therefore, much like the semen

evidence, where the additional forensic testing merely is

cumulative of the evidence at trial, and where the hair evidence

was not an important factor in the Commonwealth's case,21 we

21Like the semen evidence, the Commonwealth did not address
the hair evidence in its closing.
 34

conclude that the additional mtDNA testing that purportedly and

conclusively would exclude the victim as the source of the hair

found on the murder weapon does not cast real doubt on the

justice of the defendant's conviction. See Commonwealth v.

Teixeira, 486 Mass. 617, 641 (2021) (where defense counsel

repeatedly cast doubt on witness's credibility and reliability,

newly discovered evidence that is cumulative of other

significant impeachment evidence not grounds for new trial).

4. Phenolphthalein testing. The defendant argues that the

phenolphthalein presumptive testing for the presence of blood

constitutes newly discovered evidence that casts real doubt on

the justice of his conviction. Many of the items that tested

positive for the presence of blood after Bunnell conducted

ortho-tolidine testing were retested using a different

presumptive test for the presence of blood, known as

phenolphthalein testing. This alternative testing is said to be

a better presumptive test for blood because it is the most

specific presumptive testing available and does not react to

plant peroxidases, as does ortho-tolidine testing.

Although the phenolphthalein testing is better testing than

the ortho-tolidine testing performed by Bunnell, we disagree

that the phenolphthalein testing constitutes newly available

evidence, because phenolphthalein testing was available to the

defendant at the time of trial. See Commonwealth v.
 35

DiBenedetto, 475 Mass. 429, 435 (2016) (phenolphthalein test

performed in 1993). See also Grace, 397 Mass. at 306 (newly

available evidence must be "unknown to the defendant or his

counsel and not reasonably discoverable by them at the time of

trial" [emphasis added]). Nonetheless, even if we were to

assume that the phenolphthalein testing constitutes newly

available evidence, at best, the phenolphthalein testing,

similar to the new STR DNA testing, would be useful only to

impeach Bunnell's testimony. Cf. Cowels, 470 Mass. at 620 (test

that would exclude definitively defendants and victim as source

of DNA profile, and instead would point to unidentified male as

source of DNA, would not merely reduce weight that jury might

give evidence, but instead would also bar admission of such

evidence). The phenolphthalein testing would serve only as a

competing presumptive testing, and similar to the STR DNA

testing discussed supra, it would not bar the admission of

Bunnell's testimony and handwritten notes on the ortho-tolidine

testing that she conducted prior to trial. Cf. id.

Furthermore, as we discussed supra, Bunnell's testimony on

the ortho-tolidine testing was already extensively impeached,

and any additional impeachment evidence would be cumulative

evidence and likely would not be a real factor in the jury's

deliberation. See Teixeira, 486 Mass. at 641. See also

Commonwealth v. Moore, 489 Mass. 735, 749 (2022) (new evidence
 36

at best would provide alternate ground for impeachment and,

thus, would not be real factor in jury's deliberations). We

conclude that the additional evidence of negative

phenolphthalein testing does not cast real doubt on the justice

of the defendant's conviction. Sullivan, 469 Mass. at 350-351.

5. Confluence of factors. The defendant argues that there

exists a confluence of factors that act in concert with the

newly available evidence to warrant the granting of a new trial

pursuant to Mass. R. Crim. P. 30 (b). See Commonwealth v.

Rosario, 477 Mass. 69, 77-78 (2017). According to the

defendant, those factors include that (1) the original forensic

evidence was not reliable; (2) the jury should not have heard

the telephone calls between the defendant and the victim that

were intercepted illegally by the victim's neighbor; (3) the

murder possibly was committed by two people; (4) it was

"impossible" for the defendant to be the murderer; and (5) the

jury did not hear from the defendant's alibi witness, the

defendant's girlfriend.

"If a defendant fails to raise a claim that is generally

known and available at the time of trial or direct appeal or in

the first motion for postconviction relief, the claim is

waived." Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000),

citing Commonwealth v. Ambers, 397 Mass. 705, 707 n.2 (1986).

Here, nothing in the record suggests that these arguments were
 37

unavailable to the defendant at the time of trial, his direct

appeal, and his first motion for postconviction relief; where

the defendant either failed to raise these arguments in a timely

fashion, or now attempts to relitigate issues that already have

been addressed,22 the arguments are waived. See Rodwell, supra.

See also Mains v. Commonwealth, 433 Mass. 30, 33-34 (2000).

6. Discovery motion. The defendant argues that the judge

abused his discretion in implicitly denying his motion for

postconviction discovery. The defendant sought telephone

records, search warrant records, criminal history records, and

police records that he believed supported his alibi and third-

party culprit claims. The discovery relates to the defendant's

purported alibi witness, a claim that already has been waived by

the defendant and addressed on Federal habeas corpus review.

See Duguay v. Spencer, 791 F. Supp. 2d 271, 271-272 (D. Mass.

2011).

22The defendant previously raised the argument about the
illegally intercepted telephone calls in a prior pro se motion
for a new trial, which already was denied on grounds of waiver.
The defendant also raised the argument concerning the alibi
witness on Federal habeas corpus review. Duguay v. Spencer, 791
F. Supp. 2d 271, 271 (D. Mass. 2011). The failure to call the
alibi witness manifestly was not unreasonable, however, and did
not give rise to an ineffective assistance of counsel claim,
because trial counsel made a strategic decision not to call the
witness after speaking with her on numerous occasions and
learning that her testimony would not help the defendant. Id.
at 271-272.
 38

The defendant also believes that the discovery could

confirm the defendant's belief that the victim and Gerome

Bradley were codefendants in a breaking and entering case

committed shortly before the victim's murder, thus giving

Bradley a motive to kill the victim. The defendant's third-

party culprit defense is entirely speculative, however, and

evidence of a third party's ill will or possible motive is

insufficient to support a defense under the third-party culprit

doctrine.23 Commonwealth v. Andrade, 488 Mass. 522, 533 (2021).

At bottom, the defendant must make a prima facie showing that

the materials sought reasonably are likely to lead to evidence

that materially would have benefited his defense, and would have

factored into the jury's deliberations. See Commonwealth v.

Moffat, 486 Mass. 193, 207 (2020). Where the defendant provides

nothing more than mere speculation as to what the requested

discovery likely would lead, we discern no abuse of discretion

in the motion judge's implicit denial of the defendant's

postconviction motion for discovery.

23The defendant also must prove that the alleged third-
party culprit had the motive, intent, and opportunity to commit
the crime. Commonwealth v. Silva-Santiago, 453 Mass. 782, 800
(2009). The defendant does not do so here. See Commonwealth v.
Andrade, 488 Mass. 522, 533 (2021) (third-party culprit evidence
inadmissible when it is neither "rare" nor "unique" and "lack[s]
probative value, [is] unduly prejudicial, and [is] likely to
divert the jury's attention").
 39

Accordingly, we affirm the denial of the defendant's motion

for a new trial and his motion for postconviction discovery.

So ordered.