COMMONWEALTH vs. ARTHUR DAVIS.

LYNCH. J. A jury convicted the defendant of murder in the first degree, and we affirmed the conviction. Commonwealth v. Davis, 403 Mass. 575 (1988). On March 16, 1990, the defendant filed a motion in Superior Court for scientific testing of certain physical evidence in the Commonwealth's possession. Professing his indigence, the defendant also moved

Page 681

for the award of $3,000 to cover the cost of the testing pursuant to G. L. c. 261, Section 27C (4) (1990 ed.) (regarding costs to indigents). [Note 1] The trial judge allowed the motion for testing, but denied the motion for costs. The defendant appealed from the denial of the motion for costs to the Appeals Court. [Note 2] We transferred the case to this court on our own motion, and we now reject the defendant's appeal for procedural reasons.

The facts are set out in detail in Commonwealth v. Davis, supra. Here we recite only those facts necessary to decide this appeal. The victim's body was found, naked and badly beaten, in an outdoor stairwell at Lowell City Hall on February 10, 1985. Several strands of hair were found in the victim's hands. At trial, the Commonwealth offered the expert testimony of a chemist who had examined the hair. According to the expert, the hair had not come from the head of the defendant, but may have come from the victim's own head. [Note 3] The trial ended on March 25, 1986.

In 1988, according to the defendant's motion, geneticists announced the discovery of a new technique for the analysis

Page 682

of DNA in hair. [Note 4] The motion suggested that this technique, the polymerase chain reaction method (PCR method), "can exclude with 100% certainty any particular individual as being the donor of any particular strand of hair." The defendant also submitted the affidavit of a scientist who concluded, "[T]here is a high degree of likelihood that the PCR method of testing would obtain DNA from each of the strands of hair [discovered in the victim's hands] . . . and that the donor of each strand could be identified by the DNA thus obtained."

Invoking the statute authorizing the award of certain costs to indigents, G. L. c. 261, Section 27C (4), the defendant moved for the award of $3,000 to cover the expense of PCR testing. The results, he argued, would establish that the hair in the victim's hands came from neither the defendant nor the victim, but from a third person -- the murderer, the defendant implied. Thus, the defendant asserted that the test results would constitute newly discovered evidence sufficient to support a motion for a new trial. See Commonwealth v. Moore, 408 Mass. 117, 126-127 (1990), quoting Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986) (standards governing grant of new trial based on newly discovered evidence).

The judge denied the motion, finding that the defendant's trial counsel ably exposed deficiencies in the Commonwealth's forensic evidence, and that the results of the PCR testing would merely be cumulative of evidence showing that the hair in the victim's hands was not the defendant's. In addition, the judge found that DNA testing was available at the time of trial. The judge allowed the defendant's motion for access to the evidence, however, if the defendant wished to finance the testing himself. On appeal, the defendant argues

Page 683

that the judge erred in denying his petition for "extra fees and costs" under c. 261, Section 27C (4), because the PCR testing was "reasonably necessary to prevent the [defendant] from being subjected to a disadvantage in preparing or presenting his case adequately, in comparison with one who could afford to pay for the preparation which the case reasonably requires." Commonwealth v. Lockley, 381 Mass. 156, 160-161 (1980) (standard for deciding whether indigent's request for costs should be granted).

The case is not properly before this court because the defendant failed to comply with the "gatekeeper" provision of G. L. c. 278, Section 33E (1990 ed.). [Note 5] That provision expressly prohibits an appeal from "any motion" filed in the Superior Court after Section 33E review without the leave of a single justice of this court. "Interests of judicial economy are best served by having a single justice `screen out' postconviction motions which do not present a `new or substantial question.' In this manner, a full quorum of the Supreme Judicial Court is spared the task of hearing frivolous or duplicative claims." Dickerson v. Attorney Gen., 396 Mass. 740, 744-745 (1986). See Leaster v. Commonwealth, 385 Mass. 547 (1982). See also Commonwealth v. Lanoue, 409 Mass. 1, 8 (1990) (O'Connor, J., concurring).

The defendant notes that G. L. c. 261, Section 27D, directs his appeal to the Appeals Court. Section 27D provides that, where a Superior Court judge denies a motion for the Commonwealth to pay an indigent's costs pursuant to c. 261, Section 27C, the applicant's appeal lies to the single justice of the Appeals Court. See note 2, supra. Thus, the two statutes -- c. 261, Section 27D, and c. 278, Section 33E -- appear to steer the defendant's appeal to different courts. In this situation, we hold that the gatekeeper provision of Section 33E, which specifically addresses

Page 684

postconviction motions brought by defendants in capital cases, is applicable. See Boston v. Board of Educ., 392 Mass. 788, 792 (1984) (allegedly inconsistent statutes are construed to give reasonable effect to both and to create a consistent body of law).

The defendant's appeal is therefore dismissed. Because the defendant's motion raises issues that are likely to reoccur in the future, however, we express our opinion on the defendant's substantive claim.

Chapter 261, Section 27C (4), assures an indigent defendant of those costs "reasonably necessary to assure [him] as effective a prosecution, defense or appeal as he would have if he were financially able to pay." The defendant's motion for costs, however, is not aimed at a "prosecution, defense or appeal"; it contemplates a possible motion for a new trial after the defendant's initial, unsuccessful defense and appeal. [Note 6] Thus, the defendant's motion for the costs of PCR testing is not cognizable under c. 261, Section 27C (4), because the funds sought are not related to a pending trial or appeal.

We acknowledge that Section 27C may work a hardship on convicted indigents seeking the funds to carry out a newly discovered scientific technique which could yield exculpatory evidence. In such circumstances, funds to pay for scientific testing under Section 27C are not available until a new trial is granted, yet there may be no grounds to move for a new trial without the test results. See Commonwealth v. Pope, 392 Mass. 493, 497 n.5 (1984) (grounds for seeking new trial must be raised in motion); Mass. R. Crim. P. 30 (b), (c) (2), 378 Mass. 900 (1979). Where the Legislature has chosen not to fund certain procedures not constitutionally mandated, however, this court may not rewrite the statute to do so. [Note 7]

Page 685

This appeal is dismissed because it is not properly before us, having never been allowed by the single justice of this court as Section 33E requires. Although the defendant is free to seek an appeal before the single justice, he is unlikely to succeed there since the single justice will be guided by this opinion. Of course, nothing in this opinion prevents the defendant from carrying out the PCR testing at his own expense.

So ordered.