Commonwealth v. Kaio D. Rodrigues Da Silva.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1445

COMMONWEALTH

vs.

KAIO D. RODRIGUES DA SILVA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial, the defendant was convicted of

indecent assault and battery on a person fourteen or older,

pursuant to G. L. c. 265, § 13H. The defendant filed two

postconviction discovery motions,1 pursuant to G. L. c. 278A and

Mass. R. Crim. P. 30 (c) (4), as appearing in 454 Mass. 1501

(2001) (rule 30 [c] [4]), which the motion judges denied. The

defendant appeals from the orders denying these motions and the

two appeals were consolidated in this court.2 We affirm the

1The defendant also filed a postconviction motion for
funds, that was allowed on May 20, 2024.

2The defendant's direct appeal has been stayed pending
disposition of this appeal and the conclusion of any other
posttrial motions.
orders denying the motions under G. L. c. 278A.3

1. First postconviction discovery motion. The defendant

claims that the first motion judge4 erred by denying, in part,

the defendant's first postconviction discovery motion, filed on

or about July 31, 2024. In this motion, the defendant moved for

preservation of evidence and postconviction discovery pursuant

to G. L. c. 278A, § 3. The judge issued a preservation order,

but did not order further postconviction discovery, and the

defendant appealed. The judge's order was proper.

In an appeal from the denial of a motion under G. L.

c. 278A, § 3, our review is de novo. See Commonwealth v.

Moffat, 478 Mass. 292, 298 (2017). For a motion for forensic or

scientific analysis under G. L. c. 278A to be proper, it must

comply with the requirements of G. L. c. 278A, § 3. Section 3

lists several elements that must be a part of the motion,

including the fourth element of "information demonstrating that

3 By statute, orders denying postconviction discovery under
G. L. c. 278A are final and immediately appealable. See G. L.
c. 278A, § 18. However, the portions of the orders denying both
postconviction discovery motions under rule 30 (c) (4) are
interlocutory and not appealable until a motion for a new trial
has been filed and decided in the trial court. See Commonwealth
v. Vines, 94 Mass. App. Ct. 690, 693-694 (2019) (order under
rule 30, governing postconviction relief and related discovery,
only authorizes appeal from final order allowing or denying
postconviction relief). Therefore, we dismiss the appeal from
those portions of the orders as premature.

4 The first motion judge was the trial judge.

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the analysis has the potential to result in evidence that is

material to the [defendant's] identification as the perpetrator

of the crime in the underlying case." G. L. c. 278A,

§ 3 (b) (4). To meet this element, "the moving party need only

show that the requested analysis 'could be material to the

question of . . . identity.'" Commonwealth v. Steadman, 489

Mass. 372, 389 (2022), quoting Commonwealth v. Wade, 467 Mass.

496, 508 (2014), S.C., 475 Mass. 54 (2016). While in a motion

under G. L. c. 278A, § 3, "the movant's burden is low,"

Steadman, supra at 388, it still must be satisfied. The

defendant's motion failed to meet that burden.

The defendant does not properly assert in his motion that

the discovery sought, the original video recordings (videos),

could be material to the question of identity, because the

defendant already has access to this evidence. The videos were

admitted as an exhibit at trial and the Commonwealth has

provided copies of the videos to defense counsel multiple times.

See Wade, 467 Mass. at 508 (fourth element of G. L. c. 278A,

§ 3, met where requested deoxyribonucleic acid testing could

produce new information as to identity of rapist). The motion

failed to meet this fourth element, and it was properly denied.5

5 The Commonwealth also suggests that other elements of
G. L. c. 278A, § 3, were not met. Given our resolution of the
matter, we need not address that claim.

3
While the defendant cites to Commonwealth v. Williams, 481 Mass.

799, 809 (2019), for the proposition that a defendant who

asserts no crime occurred at all, which the defendant argues,

can satisfy this fourth element, he fails to recognize that

Williams does not rid him of the requirement in element four to

assert that "the requested testing has the potential to result

in evidence that is material . . ." (emphasis added). Id.

Copies of the videos were already provided to the defense, the

videos do not depict the crime, the defendant has not shown that

other versions of the videos have the potential to yield

evidence material to the issue whether the crime occurred, and

therefore the requested discovery does not have the potential to

be material.

2. Second postconviction discovery motion. The defendant

also claims that his November 18, 2024, motion for

postconviction discovery was improperly denied. The defendant

moved, again, under G. L. c. 278A, and requested the same

discovery, just from a different party. Again, we find no error

in the second motion judge's ruling.

The defendant lacked standing to file this second motion

under G. L. c. 278A. For the defendant to have standing to move

for postconviction access to forensic and scientific analysis,

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he must meet the requirements of G. L. c. 278A, § 2. This

section states that

"[a] person may file a motion for forensic or scientific
analysis under this chapter if that person: (1) has been
convicted of a criminal offense in a court of the
commonwealth; (2) is incarcerated in state prison, house of
correction, is on parole or probation or whose liberty has
been otherwise restrained as the result of a conviction;
and (3) asserts factual innocence of the crime for which
the person has been convicted."

G. L. c. 278A, § 2. Here, although the defendant meets elements

one and three, he fails to meet element two.

The defendant's sentence of two years in the house of

correction was suspended and he was placed on probation for two

years. His probation sentence ended on August 19, 2024. This

motion was filed November 18, 2024 -- nearly three months after

his probation was terminated. As a result, he does not meet the

second element required to move under G. L. c. 278A, § 2, as at

the time of filing this motion, he was not in State prison, in

the house of correction, on parole, on probation, or otherwise

having his liberty restrained, e.g., being held in Federal

prison.

The defendant claims that he had standing to file this

motion under G. L. c. 278A, arguing his liberty is restrained as

he still must comply with the collateral consequences of his

conviction including the requirements of G. L. c. 6, §§ 178C to

178Q, and further, because he is deemed inadmissible under

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Federal immigration law as a result of this conviction. The

second motion judge disagreed,6 as do we.

The defendant fails to cite to any supporting authority,

nor are we familiar with any, that suggests that simply

complying with the requirements of G. L. c. 6, § 178L, or

potential immigration consequences constitutes a restraint on

liberty within the meaning of G. L. c. 278A. The defendant

relies on Commonwealth v. Johnson, 482 Mass. 830 (2019), but

this case is inapposite. See id. at 834 (where there was no

dispute that defendant's "liberty ha[d] been otherwise

restrained" due to Federal imprisonment). Furthermore, "[w]e do

not read into the statute a provision which the Legislature did

not see fit to put there . . . ." Williams, 481 Mass. at 807-

808, quoting Commissioner of Correction v. Superior Court Dep't

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

126 (2006).

Even if the defendant had standing to make this motion, the

defendant has, for the reasons already previously stated, failed

to demonstrate that any future analysis has the "potential to

result in evidence that is material to the [defendant's]

6 The second motion judge denied this motion "for the
reasons set forth by the Commonwealth in its written
opposition." Included amongst those reasons, which the
Commonwealth argued in its written opposition, is that the
defendant lacked standing to move under G. L. c. 278A.

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identification as the perpetrator of the crime in the underlying

case." G. L. c. 278A, § 3 (b) (4). The motion was properly

denied.7,8

Conclusion. So much of the orders dated August 16, 2024,

and December 10, 2024, as denied the motions for postconviction

discovery under G. L. c. 278A are affirmed. The appeals from

the remainder of those orders are dismissed as premature.

So ordered.

By the Court (Meade, Neyman &
Walsh, JJ.9),

Clerk

Entered: November 14, 2025.

7 The defendant also claims that it was error for the motion
judges to fail to state findings of fact and conclusions of law
on the record, or make written findings of fact or conclusions
of law, pursuant to G. L. c. 278A, § 7. Since we have resolved
this appeal at the G. L. c. 278A, § 3, stage, we need not
address this argument. Nor is there any legal significance to
the judge having "denied" the motion rather than using the word
"dismiss" as found in G. L. c. 278A, § 3 (e).

8 The Commonwealth filed a motion to expand the record, to
include e-mail messages between the prosecutor and the
defendant's trial counsel. As allowing this motion is not
necessary to reach our decision in this case, we deny it.

9 The panelists are listed in order of seniority.

7