Commonwealth v. William Curry.

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

25-P-1136

COMMONWEALTH

vs.

WILLIAM CURRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 2, 1998, a jury found the defendant, William

Curry,1 guilty of one count of rape of a child in violation of

G. L. c. 265, § 23, and one count of indecent assault and

battery on a child under the age of fourteen in violation of

G. L. c. 265, § 13B.2 The defendant appeals from the August 29,

2025 denial of his tenth motion for postconviction relief. We

affirm.3

1 A self-represented litigant.

2A panel of this Court affirmed the defendant's convictions
on direct appeal. See Commonwealth v. Curry, 52 Mass. App. Ct.
1104 (2001).

3We do not address the defendant's contentions that (1) a
police witness falsely claimed that the defendant confessed and
attempted suicide, and (2) he is entitled to a new sentencing
Discussion. We review a judge's decision on a

postconviction motion for "a significant error of law or other

abuse of discretion." Commonwealth v. Forte, 469 Mass. 469, 488

(2014), citing Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

A motion for forensic or scientific analysis must include

"information demonstrating that the analysis has the potential

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

identification as the perpetrator of the crime in the underlying

case." G. L. c. 278A, § 3 (b) (4). Evidence that is "material"

under G. L. c. 278A "means evidence that is of significance 'to

the moving party's identification as the perpetrator of the

crime in the underlying case'" (citation omitted). Commonwealth

v. Ramos, 490 Mass. 818, 825 (2022).

hearing because during the original hearing, the prosecutor
referenced a previous charge for which the Commonwealth entered
a nolle prosequi. The apparent weaknesses of the defendant's
contentions aside, these claims are waived because the defendant
presents no explanation why he could not reasonably have raised
these claims in his first postconviction motion. See
Commonwealth v. Chase, 433 Mass. 293, 297 (2001) ("A defendant
generally may not raise any ground in a motion for a new trial
that could have been, but was not, raised at trial or on direct
appeal"); Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.
1501 (2001). See also Commonwealth v. Ford, 397 Mass. 298, 302
(1986) ("We will not substitute our view of a witness's
credibility for that of the jury"); Commonwealth v. Keon K., 70
Mass. App. Ct. 568, 571 (2007) ("Nothing in the Federal or State
Constitutions, the General Laws, or the rules of criminal
procedure prohibits a judge from considering a defendant's
entire record, including dismissals, for sentencing purposes").

2
The defendant contends that his request for a Fusion 6C STR

analysis of two toothbrushes found at the scene of the rape "has

the potential to result in evidence that is material to his

false confession as the perpetrator to the crime."4 Even if this

claim had not been waived, we disagree with the defendant's

contention.

The defendant in particular emphasizes the fact that the

police collected hair from the toothbrushes but did not test the

collected hairs nor any saliva found on the toothbrushes, and

that the police examined the toothbrush for fingerprints and

found none. The defendant, however, presents no theory by which

a test finding another person's deoxyribonucleic acid (DNA)

present on the toothbrushes would be of significance to his

identification as the perpetrator. See Ramos, 490 Mass. at 825.

The toothbrushes were found in a public location, and no party

alleges that the toothbrushes were used in either crime for

which the defendant was convicted. Even if there were no

evidence tying the defendant to the toothbrushes, and DNA

testing identified someone else as having used or handled them,

at best that evidence would only establish that another person

had come in contact with the toothbrushes -- innocuous items

4 As the motion judge noted, this claim is also waived
because it could have been raised in any of his nine previous
motions for a new trial. See Mass. R. Crim. P. 30 (b) (2).

3
that people use every day. See Ramos, supra. Accordingly, the

defendant's motion failed to include information demonstrating

that the requested analysis had the potential to result in

evidence of significance to identifying the defendant as the

perpetrator. See G. L. c. 278A, § 7 (b) (4).

The defendant also contends that the judge should have

appointed the defendant postconviction counsel. See G. L.

c. 278A, § 5 ("The court may assign or appoint counsel to

represent a moving party who meets the definition of indigency

under section 2 of chapter 211D in the preparation and

presentation of motions filed under this chapter"). However,

the appointment of postconviction counsel is at the discretion

of the judge. See Mains v. Commonwealth, 433 Mass. 30, 35

(2000). See also Monteiro v. Commonwealth, 473 Mass. 1007, 1007

(2015) ("The language of G. L. c. 278A, § 5, mirrors that of

Mass. R. Crim. P. 30 (c) (5)"). Considering the questionable

merits of the defendant's motion, it was within the judge's

4
discretion to deny the defendant's motion for appointment of

postconviction counsel. See Mains, 433 Mass. at 35.

Order entered August 29,
2025, affirmed.

By the Court (Desmond, Hand &
Hodgens, JJ.5),

Clerk

Entered: June 16, 2026.

5 The panelists are listed in order of seniority.

5