Commonwealth v. Henry Martineau.

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-990

COMMONWEALTH

vs.

HENRY MARTINEAU.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2011, the defendant was convicted of assault with intent

to rape and assault and battery by means of a dangerous weapon.

In 2016, a panel of this court affirmed his convictions and the

denial of his motion for new trial, and for reconsideration.

Commonwealth v. Martineau, 89 Mass. App. Ct. 1109 (2016).1 In

2018, the defendant filed a second motion for new trial, and a

request for funds to retain a forensic pathologist and to

examine the evidence. That motion was denied, but the parties

1In 2015, while his appeal was pending, the defendant filed
a motion for postconviction forensic testing pursuant to G. L.
c. 278A. On March 22, 2016, then-Superior Court Justice
Kimberly Budd denied the motion. In 2017, the court affirmed
the denial of that motion. Commonwealth v. Martineau, 92 Mass.
App. Ct. 1108 (2017).
reached an agreement to conduct deoxyribonucleic acid (DNA)

testing on glass fragments. In 2023, after those tests were

conducted, the defendant filed a third motion for new trial,

which too was denied. From this denial, and from the denial of

an evidentiary hearing, the defendant appeals. We affirm.

1. Motion for new trial. a. DNA evidence. The defendant

claims the motion judge erred by denying the third motion for

new trial where the expert evidence provided substantial support

for the defendant's claim that he did not assault the victim,

and that her wounds were self-inflicted. We disagree.

Under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.

1501 (2001), a judge may grant a motion for a new trial any time

"it appears that justice may not have been done." To prevail on

a motion for a new trial based on newly discovered evidence, the

defendant must first establish that the evidence is newly

discovered. See Commonwealth v. Grace, 397 Mass. 303, 305

(1986). Second, the defendant must show that the newly

discovered evidence "casts real doubt on the justice of the

conviction" and is "material and credible . . . [and] carr[ies]

a measure of strength in support of the defendant's position."

Id. Third, the defendant must establish that the reason for a

new trial "outweighs the risk of prejudice to the Commonwealth."

Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 636 (2001).

2
On appeal, it is well recognized that the decision to grant

a motion for a new trial "rests in the sound discretion of the

[motion] judge," absent constitutional error. Commonwealth v.

Brown, 378 Mass. 165, 170-171 (1979). We review a judge's

decision on a motion for a new trial "to determine whether there

has been a significant error of law or other abuse of

discretion." Grace, 397 Mass. at 307. The defendant argues

that de novo review applies here because the motion judge did

not preside over the trial or conduct an evidentiary hearing.

We need not resolve that question. Under either standard of

review, a motion judge's decision "is not to be reversed unless

a survey of the whole case shows that [the] decision, unless

reversed, will result in manifest injustice." Brown, supra at

171, quoting Sharpe, petitioner, 322 Mass. 441, 445 (1948). See

Commonwealth v. Eagles, 491 Mass. 210, 216, 222 (2023).

Producing evidence that could have influenced the trier of fact

to reach a different result does not demonstrate manifest

injustice. Brown, supra at 171. Instead, "the evidence 'must

be weighty and of such nature as to its credibility, potency,

and pertinency to fundamental issues in the case as to be worthy

of careful consideration.'" Id., quoting Davis v. Boston

Elevated Ry., 235 Mass. 482, 495 (1920).

3
As a starting point, we must address whether the DNA

evidence is newly discovered. The motion judge determined that

because the PowerPlex Y23 test used here was not available at

the time of the defendant's 2011 trial, the evidence was "newly

available." For purposes of this appeal, the Commonwealth does

not contest that determination, but notes that other varieties

of DNA testing were available in 2011 that could inculpate or

exculpate a suspect. What neither party nor the motion judge

addressed was the question of waiver. That is, even if the

evidence was not available at the time of the 2011 trial,

whether it was available at the time of the first or second

motions for new trial in 2014 and 2018, respectively. See

Commonwealth v. Barros, 494 Mass. 100, 113 (2024); Mass. R.

Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001). As

it does not affect our decision, we will assume, but need not

decide, that the evidence was newly discovered.

As the motion judge found:

"of the samples tested, Bode [Technology] found no male DNA
on sample #03, and Bode was unable to obtain a Y-STR
profile from samples #01 and #02. Bode did recover Y-STR
alleles at two loci on sample #04, which it then compared
to the defendant's Y-STR profile. From that comparison,
Bode excluded the defendant as a possible contributor of
the two alleles from sample #04. This conclusion is
consistent with the defendant's defense that he did not
handle the glass items."

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As the motion judge held, the defendant did not meet his

burden to show that the test result excluding him as a

contributor to the small amount of DNA detected on one of the

four swabs tested would have been a "real factor" in the jury's

assessment of the evidence. See Commonwealth v. Duguay, 492

Mass. 520, 532 (2023). As the panel noted in the defendant's

2017 appeal, "[t]he issue in the case was not whether it was the

defendant or some other person who injured the victim, but

whether the assault occurred at all." Commonwealth v.

Martineau, 92 Mass. App. Ct. 1108 (2017). In fact, the

defendant's expert, Dr. Steven Laken, concluded that the failure

to detect a person's DNA on an object does not necessarily

indicate that the person did not touch the object, and,

conversely, owing to a phenomenon known as secondary transfer,

the presence of a person's DNA does not necessarily mean that

person did touch the object. In this light, it was neither

error nor an abuse of the motion judge's discretion to conclude

that the DNA tests carried little, if any, exculpatory value,

and that it would not have been a real factor in the jury's

deliberations or cast doubt on the defendant's conviction. See

Brown, 378 Mass. at 171 (merely producing evidence that could

have influenced jury to reach different result does not

demonstrate manifest injustice).

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b. Effective assistance and other forensic evidence. The

defendant also claims that the motion judge erred or abused his

discretion in finding that his trial counsel was not ineffective

for not having procured the testimony of a forensic expert to

support his claim that the victim's injuries were self-

inflicted. We disagree.

As the motion judge found, in support of his ineffective

assistance claim, the defendant offered the opinion of

Dr. Elizabeth Laposata, a forensic pathologist. Laposata opined

first on a preliminary basis, and then after examination of the

glass fragments, that the victim's injuries were self-inflicted.

Without the support of Laposata's opinion, this was the defense

at trial. The defendant's trial counsel provided a letter that

stated to the best of his recollection he had considered

retaining an expert to support that defense but chose instead to

try to accomplish that goal through cross-examination and

argument. For purposes of ineffective assistance, we must

determine if the motion judge erred or abused his discretion by

concluding that this strategic choice was not manifestly

unreasonable. See Commonwealth v. Kolenovic, 471 Mass. 664, 674

(2015). He did not.

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In short, because the theory advanced by Laposata was

brought to the jury's attention by other means,2 defense

counsel's choice to not retain an expert did not result in

ineffective assistance of counsel. As the motion judge

cataloged, the victim's medical records indicated that her

wounds were superficial, and it was unclear to the examining

doctor how they were inflicted or by what means. Additionally,

photographs were provided to the jury that depicted the

superficial nature of the wounds. Both the treating physician

and a nurse testified to the superficial nature of the wounds

and the small amount of bleeding. Finally, defense counsel used

the fact that the victim was apparently not in the United States

legally, to support the idea that she staged the assault to

force the defendant's assistance with her immigration status.

Against the backdrop of this evidence, defense counsel was

able to contend that the victim's wounds were superficial and

2 The Commonwealth contends that it is questionable whether
Dr. Laposata's opinion would have been admissible had she been
called to testify. There is some weight to this supposition, as
Laposata, aside from reciting her training and experience, did
not identify what scientific principles, methods, or processes
formed the basis for her conclusion that a fragment of glass was
too small to be wielded by another person, but not too small to
be wielded by the victim herself. See Commonwealth v. Hoose,
467 Mass. 395, 416 (2014); Commonwealth v. Lanigan, 419 Mass.
15, 26 (1994); Mass. G. Evid. § 702(c) (2025). Like the motion
judge, we need not decide whether Laposata's opinion would have
been admissible.

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self-inflicted, and that the blood in the police cruiser might

have been menstrual blood and not the result of her injury.

Accordingly, Laposata's testimony would have been cumulative of

the evidence defense counsel did employ, and its absence did not

leave the defendant without a defense. Compare Commonwealth v.

Street, 388 Mass. 281, 287 (1983). While the strategic choice

defense counsel made was ultimately not successful, it was

nonetheless rational and fully within the parameters of what

would be expected of an ordinary fallible lawyer. See

Kolenovic, 471 Mass. at 675. In this light, the defendant has

failed to demonstrate that counsel's decision to not call an

expert witness was manifestly unreasonable. The motion judge

neither erred nor abused his discretion in so deciding.3

2. Evidentiary hearing. Finally, the defendant claims

that the motion judge abused his discretion by not holding an

evidentiary hearing on the motion for new trial. We disagree.

Here, the affidavits and reports submitted in support of

the motion for new trial provided sufficient information for the

judge to decide the motion. As he noted, there was no reason to

3 Contrary to the defendant's claim, the motion judge did
not merely evaluate the DNA and pathology evidence individually,
and not in concert. The motion judge properly weighed the
evidence and clearly noted that the combination of the Bode
testing and the absence of Laposata's proffered testimony did
not create a substantial risk of a miscarriage of justice. Cf.
Commonwealth v. Epps, 474 Mass. 743, 767 (2016).

8
think that either Doctors Laken or Laposata would have testified

in any way that would have provided any additional information

relevant to the motion. See Commonwealth v. DeVincent, 421

Mass. 64, 68-69 (1995). In the end, it was neither an error nor

an abuse of discretion for the motion judge to deny the motion

for a new trial without conducting an evidentiary hearing where

the defendant's submissions raised no substantial issues. See

Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003).

Order denying third motion
for new trial affirmed.

By the Court (Meade, Shin &
Tan, JJ.4),

Clerk

Entered: July 15, 2025.

4 The panelists are listed in order of seniority.

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