Commonwealth v. Drayton , 479 Mass. 479 ( 2018 )

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revision and are superseded by the advance sheets and bound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-10667
COMMONWEALTH vs. KENJI DRAYTON.
Suffolk. February 8, 2018. - May 9, 2018.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.
Homicide. Firearms. Evidence, Hearsay, Declaration of deceased
person. Practice, Criminal, Capital case, New trial,
Affidavit.
Indictments found and returned in the Superior Court
Department on December 11, 2001.
Following review by this court, 473 Mass. 23 (2015), a
motion for a new trial was heard by Mitchell H. Kaplan, J.
Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.
Cathryn A. Neaves for the defendant.
KAFKER, J. A Superior Court jury convicted the defendant
of murder in the first degree for the killing of Michael Greene
and of unlawful possession of a firearm. The Commonwealth's
case against the defendant at trial largely depended on the
testimony of a single percipient witness, James Jackson.
2
Approximately eighteen months after the convictions, another
individual, Debra Bell, came forward and stated in an affidavit
that Jackson could not have witnessed the shooting because she
was in the bathroom with Jackson at the time that it occurred.1
The affiant died shortly after providing the affidavit. The
defendant moved for a new trial on the basis that this affidavit
was newly discovered evidence, but the trial judge denied the
motion.
In Commonwealth v. Drayton, 473 Mass. 23 (2015)
(Drayton I), we rejected the defendant's claims of error at
trial and declined to grant the defendant relief under G. L.
c. 278, § 33E. We did, however, remand the case for an
evidentiary hearing on the defendant's motion for a new trial to
determine whether "Debra's affidavit falls within a narrow,
constitutionally based exception to the hearsay rule, which
applies where otherwise inadmissible hearsay is critical to the
defense and bears persuasive guarantees of trustworthiness."
Drayton I, supra at 25. On remand, a different judge determined
that Debra's affidavit fell within the exception and granted the
defendant's motion for a new trial. The Commonwealth appealed.
1 Because Debra Bell shares a last name with her sister who
is also discussed, Betty Jo Bell, we refer to both by their
first names.
3
We discern no error or abuse of discretion by the motion
judge in allowing the defendant's motion for a new trial. In so
concluding, we give deference to the motion judge's credibility
findings and conduct our own independent review of the
documentary evidence and constitutional issues. The affidavit
is admissible because it would have been critical to the defense
and it bears "persuasive assurances of trustworthiness."
Drayton I, 473 Mass. at 36, quoting Chambers v. Mississippi, 410
U.S. 284, 302 (1973). Furthermore, the affidavit is newly
discovered evidence and casts real doubt on the justice of the
defendant's convictions. We therefore affirm the decision of
the motion judge granting the defendant's motion for a new
trial.
1. Background. Drayton I presented the facts underlying
the defendant's convictions. See Drayton I, 473 Mass. at 25-29.
We focus here on the specific facts relevant to the issues in
this appeal.
a. The shooting. The Commonwealth's evidence against the
defendant centered on the testimony of Jackson, the man who
lived in the apartment where Greene was killed. Drayton I, 473
Mass. at 26. Jackson testified that he let Greene use his
apartment to sell drugs in exchange for money and free drugs.
Id. at 25. Jackson had a similar arrangement in the same
apartment with the defendant and his codefendant, Levino
4
Williams.2 Id. One week before the shooting, Jackson told
Greene that he could no longer use the apartment to sell drugs.
Id.
On the day of the shooting, the defendant and Williams were
in the apartment with Jackson, drinking and rolling "oolies,"
which are "cigarettes laced with cocaine and 'reefer.'" Id.
Debra and her sister, Betty Jo Bell, were also at the apartment
during the day, although Jackson testified that both Debra and
Betty Jo left at some point prior to the shooting.3
Jackson testified that, at some point, he let Greene into
the apartment. According to Jackson's testimony, when he let
Greene into the apartment, it was just Greene, the defendant,
Williams, and Jackson still in the apartment, with the defendant
in the living room with Jackson and Williams seated nearby at
the kitchen table. Jackson then told Greene that he did not
want Greene to sell drugs in the apartment anymore, which upset
Greene. Id. According to Jackson, Greene then made a cellular
telephone call during which he threatened to "kill 'em all" and
burn down the apartment. Id. After Greene made this
2 Levino Williams, the codefendant at trial, was acquitted.
3According to James Jackson's testimony, there may have
been several other people in the apartment throughout the day.
Jackson testified that two tall white males, one named Mark and
another whose name is unknown, were in the apartment during the
day. Statements made to the police also place a woman named
Sandra in the apartment at various times.
5
threatening telephone call, Jackson left the living room to go
to the bathroom. Id. Jackson heard a gunshot as he was
preparing to leave the bathroom. Id. He walked out and saw the
defendant shoot Greene five additional times. Id. at 25-26.
The Commonwealth offered very little physical evidence
beyond Jackson's testimony that linked the defendant to the
shooting: the Commonwealth never located the firearm used to
shoot Greene, and the only physical evidence that linked the
defendant to the apartment were a beer bottle that contained a
latent finger print matching the defendant's right middle finger
joint and a cellular telephone linked to a person known to both
the defendant and Williams.4 Id. at 27.
Furthermore, as we noted in Drayton I, "[t]he problems with
Jackson's credibility were legion." Id. at 26. Jackson was a
heavy drinker and used drugs, including "crack" cocaine,
extensively throughout his life and in the days leading up to
the shooting. Id. His testimony at trial contradicted some of
his earlier statements, including his 911 call and his grand
jury testimony. Id. For example, in his 911 call, Jackson
stated that an unknown assailant pushed through the door and
shot Greene. Id. Jackson also testified during his grand jury
4 The police traced the cellular telephone to an address in
the Dorchester section of Boston and a woman named Tamika Ivy.
The parties stipulated at trial that both the defendant and
Williams knew Ivy.
6
testimony that Williams was standing behind the defendant as the
defendant shot Greene but testified at trial that he did not see
Williams when he saw the defendant shoot Greene. Id. Defense
counsel attempted to impeach him with many of these
inconsistencies. Id. Jackson even stated during his testimony
that parts of his previous statements were either untrue or
mistaken. Id. Despite these limitations and the "other
inconsistencies and seeming obfuscations" in Jackson's
testimony, the defendant was convicted of murder in the first
degree for the shooting of Greene based largely on Jackson's
testimony. Id.
b. Postconviction affidavits. In October, 2006, eighteen
months after the convictions, Debra contacted attorney Bernard
Grossberg, the defendant's trial counsel. Drayton I, 473 Mass.
at 24. In a signed affidavit dated October 17, 2006, Debra
stated that she was diagnosed with metastatic cancer and was
undergoing chemotherapy. She stated that "[b]ecause of the
uncertainty of [her] medical condition," she did not want the
fact that she did not disclose what she knew about the shooting
of Greene on her conscience and decided to come forward. She
also stated that her initial statement to police on September
27, 2001, was "not completely truthful," that she only said
those things "in order to get out of there as quickly as
7
possible," and that "[t]he officers asked [her] questions, to
which [she] agreed in order to be able to leave."5
In the affidavit, Debra described the afternoon of the
shooting very differently from what was presented by Jackson's
testimony. She stated that she arrived at the apartment that
morning at approximately 11 A.M. but left after an argument with
Jackson. She stated that she then returned to the apartment "a
little after 3:00 P.M." and that "there were a number of people
in the apartment," including Jackson, Greene, a black woman
named Sandra, an unknown white male, and a black male named Joe.
According to the affidavit, Debra then brought Jackson into the
bathroom, where they "were smoking crack cocaine and engaged in
sexual acts."6 At some point, Debra heard "a series of noises"
and asked Jackson "if he heard the noises and he said he was not
sure of what or if he heard anything." After she waited a few
5 In her initial statement, Debra told the police that she
left the apartment before the shooting and did not mention
anything about being in the bathroom with Jackson. In her
affidavit, Debra stated that at the time of her original
statement to police she was "afraid of the officers," she "did
not want to get involved in the case," and "the officers told
[her] that they would take care of arrest warrants that were
pending against [her] in different courts."
6 In the affidavit, Debra stated that she had known Jackson
"for about three years" and that she "had an off and on intimate
relationship" with him. In her statement to police on September
27, 2001, Debra described her relationship with Jackson as "like
a brother/sister friendship, concerned about no other guy." At
trial, Jackson testified on cross-examination that he had not
been involved in a relationship with Debra.
8
minutes, Debra "opened the bathroom door and briefly peeked out
the door." She saw a person's legs on the floor and "screamed
to Jackson to look out the door." Jackson replied, "'[h]ell
with it' or words to that effect," and slammed the door, saying
that "he did not care about what was going on." After a short
time, Debra opened the door and fled the apartment. Her
affidavit concluded with the statement that "there was
absolutely no way that either [Jackson] or I . . . could have
seen who shot Michael Greene or who was in the apartment at that
time."
Grossberg obtained several additional affidavits, including
one from Betty Jo. In her affidavit, Betty Jo stated that she
arrived at the apartment on the day of the shooting at
approximately 11 A.M. and left approximately one hour later,
returning at some point in the afternoon to find the building
sealed off by the police.7 She stated that while she was there,
the only other people in the apartment were "Jackson, Sandra,
Mike, Joe, and Debra." Betty Jo then stated that, "[e]very now
and then after the shooting on September 20, 2001, [her] sister,
Debra Bell[,] would tell [her] about what had occurred in the
apartment" and "would say that she and . . . Jackson were in the
7 Betty Jo died in February, 2016, which was after the
release of our decision in Drayton I but prior to the
evidentiary hearing. See Commonwealth v. Drayton, 473 Mass. 23(2015) (Drayton I) (decided October 1, 2015).
9
bathroom getting high on crack cocaine and engaging in sexual
activity when the shooting occurred." Betty Jo also stated that
Debra "would tell [Betty Jo] this more often as she became more
ill" and that "she wanted the truth to be known" and to "clear
her conscience." According to the affidavit, just before she
died, Debra made Betty Jo promise that Betty Jo would "take care
of her children and that [Betty Jo] would make the truth known
about the shooting in . . . Jackson's apartment."
The other two affidavits were from a man identified as
Joseph Anderson. In his first affidavit, dated May 15, 2007,
Anderson stated that he went to the apartment on the day of the
shooting to purchase crack cocaine from Jackson for a friend.
Anderson stated that Jackson handed him a small packet of crack
cocaine and that as Anderson turned to leave, he "saw . . .
Jackson going into the bathroom with a black woman, who was
known to [him] as Debra Bell." In a second affidavit, dated
July 5, 2007, Anderson added that as he was leaving the
apartment, he passed two men arguing in the hallway. He then
stated that "[b]efore [he] got to the corner, [he] heard what
sounded like gun shots coming from the area of the apartment."
c. Procedural history. While his direct appeal was
pending, the defendant filed a motion for a new trial in
December, 2006, alleging that Debra's affidavit was newly
10
discovered evidence that warranted a new trial.8 Following a
nonevidentiary hearing, the trial judge denied the motion in
November, 2007. Although the judge stated that she had
considered holding an evidentiary hearing, she decided not to do
so because the evidence was inadmissible and impeachment
evidence alone is ordinarily insufficient to obtain a new trial.
She accordingly denied the motion on these grounds.
Specifically, the judge concluded that the affidavit was
inadmissible because it did not meet the requirements of the
dying declaration exception. Because the judge determined that
the affidavit was inadmissible, she did not reach the other
issues raised by the defendant's motion for a new trial. The
defendant filed a second motion for a new trial in April, 2012,
this time alleging ineffective assistance of counsel due to the
failure to engage a sleep deprivation or drug use expert and a
violation of his right to a public trial because of the
exclusion of the defendant's mother and friend. The judge
denied this motion in August, 2012.
This court then heard the defendant's consolidated appeal
from the convictions of murder in the first degree and unlawful
possession of a firearm, and from the denial of the defendant's
8 Debra died on December 19, 2006, a week after the
defendant filed his first motion for a new trial. The defendant
later filed the affidavits of Betty Jo and Anderson in support
of the first motion for a new trial.
11
motions for a new trial. See Drayton I, 473 Mass. at 24-25. We
rejected the claims of error at trial that the defendant
asserted, both on direct appeal and in his second motion for a
new trial, and declined to grant the defendant relief under G. L.
c. 278, § 33E. Id. With regard to the defendant's first motion
for a new trial based on newly discovered evidence, however, we
concluded that, under the unusual circumstances of this case,
there was a substantial issue whether Debra's affidavit falls
within a narrow, constitutionally based exception to the hearsay
rule, which applies where otherwise inadmissible hearsay is
critical to the defense and bears persuasive guarantees of
trustworthiness. Id. at 40. We therefore remanded the matter
for an evidentiary hearing on that issue. See id. at 25.
On remand, a different judge in the Superior Court
conducted the evidentiary hearing.9 At the hearing, the only
witness who testified was Grossberg. Grossberg testified that
he tried to locate Debra prior to trial and hired an
investigator to find her but was unsuccessful. Grossberg then
testified that Debra contacted him "out of the blue" in October,
2006. When she came to his office, she "looked very sickly and
was wearing a scarf to cover her head." She told Grossberg that
she knew she was dying. A few months later, Betty Jo contacted
9 The case was heard by a different judge on remand because
the original trial judge had retired.
12
Grossberg and informed him that Debra had died. Betty Jo spoke
with Grossberg at his office and signed her affidavit. Anderson
also met with Grossberg at his office and signed his two
affidavits.10
The motion judge concluded that Debra's affidavit was
admissible because it met the test articulated by this court in
Drayton I, 473 Mass. at 36. Specifically, the judge found that
Debra was motivated to come forward by "her certain impending
death and her desire to clear her conscience" and that "no
evidence of any other motivating circumstance was presented."
The Commonwealth did not produce "any evidence that Debra had
any prior relationship to the defendant . . . that might have
motivated her actions." The judge also found that the other
affidavits "provide[d] credible corroboration for Debra's
statements, further demonstrating the statements'
trustworthiness." The judge credited Grossberg's testimony on
the circumstances surrounding the affidavits from Betty Jo and
Anderson, finding that "the affidavits, particularly Betty Jo's,
[were] properly viewed as credible." In concluding that Debra's
affidavit was trustworthy, the judge noted that there was "no
10The motion judge noted that it was not clear how Joseph
Anderson had come to attorney Bernard Grossberg's attention but
credited Grossberg's testimony regarding the statements in the
affidavits. Grossberg testified that he did not know about
Anderson until Debra mentioned him in her affidavit.
13
evidence calling into question the authenticity of these
affidavits or the veracity of their content." The judge also
concluded that the affidavit was newly discovered evidence as
Debra was unavailable and, given Betty Jo's prior statements,
Grossberg had no reasonable expectation that she had any
exculpatory information. As the affidavits were newly
discovered and cast real doubt on the justice of the defendant's
convictions, the judge therefore granted the defendant's motion
for a new trial.
2. Discussion. Where the Commonwealth appeals from the
grant of a defendant's motion for a new trial, we consider
whether the judge committed a significant error of law or abuse
of discretion in allowing the defendant's motion. Commonwealth
v. Kolenevic, 471 Mass. 664, 672 (2015), S.C., 478 Mass. 189(2017). The issue is whether the judge's decision resulted from
"a clear error of judgment in weighing the factors relevant to
the decision . . . such that the decision falls outside the
range of reasonable alternatives" (quotation and citation
omitted). Id., quoting L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). "When, as here, the motion judge did not preside
at trial, we defer to that judge's assessment of the credibility
of witnesses at the hearing on the new trial motion, but we
regard ourselves in as good a position as the motion judge to
assess the trial record." Commonwealth v. Cousin, 478 Mass.
14608, 615 (2018), quoting Commonwealth v. Grace, 397 Mass. 303,
307 (1986). "We review de novo any findings of the motion judge
that were based entirely on the documentary evidence," which, in
this case, includes the affidavits. Commonwealth v. Thomas, 469
Mass. 531, 539 (2014). "We accept other findings that were
based on testimony at the evidentiary hearing and do not disturb
them where they are not clearly erroneous." Id. "However, we
'make an independent determination as to the correctness of the
judge's application of constitutional principles to the facts as
found.'" Id., quoting Commonwealth v. Tremblay, 460 Mass. 199,
205 (2011).
In Drayton I, this court held that Debra's affidavit may be
admissible if it meets the two-part test set forth in Chambers,
410 U.S. at 302.11 Drayton I, 473 Mass. at 36. In Drayton I, we
also held that the first part of that test, whether the
affidavit would have been critical to the defense, was clearly
satisfied in this case. Id. We left undecided three distinct
issues to be addressed at the evidentiary hearing on remand.
First, the motion judge was to determine whether the affidavit
met the second part of the test for admissibility, which
examines whether the affidavit bears "persuasive assurances of
11The Commonwealth argues that we should overturn our
decision in Drayton I insofar as it recognizes a
constitutionally based exception to the hearsay rule. For the
reasons stated in Drayton I, we decline to do so.
15
trustworthiness." See id., quoting Chambers, supra. Second, if
the affidavit were determined to be admissible, the motion judge
then had to determine whether the affidavit was properly viewed
as newly discovered evidence. Drayton I, supra at 38-39.
Third, the judge had to determine whether the affidavit casts
real doubt on the justice of the defendant's convictions. Id.
We address each of these issues in turn.
a. Whether the affidavit bears persuasive assurances of
trustworthiness. Because the affidavit "plainly would have been
critical to the defense," we held in Drayton I that the
admissibility of the affidavit depended on whether it bears
"persuasive assurances of trustworthiness." Drayton I, 473
Mass. at 36, quoting Chambers, 410 U.S. at 302. We also
highlighted several elements that seemed to support the
affidavit's trustworthiness. See Drayton I, supra at 36-38.
Following the evidentiary hearing, the motion judge found that
the affidavit does bear persuasive assurances of trustworthiness
because of Debra's impending death, the absence of any other
motive, and the corroboration that exists for the affidavit.
The motion judge found that Debra's statements were
"motivated by her certain impending death and her desire to
clear her conscience in the brief time remaining to her." In
Drayton I, we drew parallels between the reliability of Debra's
statements, in light of her impending death, and the reliability
16
of statements that fall within the dying declaration exception.
Id. at 37 ("while Debra's affidavit fails to satisfy the
technical requirements for the dying declaration hearsay
exception, it appears to fall within the rationale for that
exception"). The motion judge found that "[t]he facts revealed
by the evidentiary hearing" supported this conclusion because
Debra appeared sickly and emotional and died soon after signing
the affidavit. The motion judge also credited Grossberg's
testimony about Debra's health and demeanor at the time that she
signed the affidavit.
The motion judge also found no evidence of any motivation
for Debra coming forward other than her desire to clear her
conscience. See Drayton I, 470 Mass. at 37 (absence of motive
to lie "tend[s] to support the trustworthiness of Debra's
statement"). Betty Jo stated in her affidavit that "just
before" Debra died, Debra told Betty Jo "that she wanted the
truth to be known about the shooting in . . . Jackson's
apartment." The motion judge was further persuaded by the fact
that Debra contacted Grossberg unprompted and "out of the blue."
Grossberg testified that he searched for Debra both before and
after the trial but was unsuccessful. The motion judge also
observed that there is no evidence of any connection between
Debra and the defendant that would have motivated her to come
17
forward and lie on his behalf.12 We highlighted the absence of a
motive for Debra as potentially persuasive in Drayton I and
something that could be brought out at the evidentiary hearing.
See id. at 37 & 38 n.6. After both sides were given the
opportunity to develop the record at the hearing, the motion
judge ultimately found that "no evidence of any other motivating
circumstance was presented."
Another element that the motion judge found persuasive was
the corroboration that exists for Debra's statements. In
Chambers, the United States Supreme Court found it persuasive
that the statements at issue in that case were "corroborated by
some other evidence in the case." Chambers, 410 U.S. at 300-
301. Here, as the motion judge correctly observed, Debra's
affidavit is corroborated by Betty Jo's affidavit and Anderson's
We also note that the judge concluded that the statements
12
Debra gave to Grossberg, rather than those given to the police,
are more likely to be true. As Debra explained in her
affidavit, Debra had various reasons to lie in her initial
statement to the police. The affidavit stated that she was
"afraid" and that she "did not want to get involved in the
case." She also stated that the officers "kept coming to [her]
home and harassed [her] children and family until [she] agreed
to meet with [them]" and that they "told [her] that they would
take care of arrest warrants pending against [her]." Thus,
while Debra had ample motivation to lie in her original
statement to the police, there is no evidence of any motivation
to lie in her affidavit. We discern no error in the judge's
analysis.
18
affidavits. The motion judge found each of these affidavits to
be credible, particularly the affidavit of Betty Jo.13
We discern no error in the judge's analysis or
determination that Debra's affidavit bears "persuasive
assurances of trustworthiness." Our own analysis confirms his
findings. We reiterate that this exception is very narrow and
will be applicable "only in the rarest of cases." Drayton I,
473 Mass. at 40. This case, however, is one in which the
application of this constitutional exception is appropriate.
b. Whether the affidavit constitutes newly discovered
evidence. "Where the defendant moves for a new trial on the
basis of newly discovered evidence, the defendant 'must
establish both that the evidence is newly discovered and that it
casts real doubt on the justice of the conviction,' which
entails a showing that it "'probably would have been a real
factor in the jury's deliberations.'" Drayton I, 473 Mass. at
31, quoting Grace, 397 Mass. at 305–306. Although "[t]he
inquiry into whether the defendant has satisfied the new trial
standard is conceptually distinct from the threshold inquiry
13Neither Betty Jo nor Anderson testified at the hearing.
Betty Jo died prior to the hearing, and Anderson could not be
located. The motion judge, however, credited Grossberg's
testimony concerning the circumstances that prompted Betty Jo
and Anderson to provide their affidavits. Our analysis of the
documentary evidence is consistent with the judge's analysis,
and we defer to his finding on credibility regarding Grossberg.
19
into whether Debra's affidavit is admissible [evidence], . . .
many of the same considerations that inform a judge's assessment
of the affidavit's trustworthiness may well also inform the
judge's assessment whether it casts real doubt on the justice of
the conviction." Drayton I, supra at 39.
"To establish that evidence is 'newly discovered,' the
defendant must show that the evidence was 'unknown to the
defendant or his counsel and not reasonably discoverable by them
at the time of trial." Drayton I, 473 Mass. at 39, quoting
Grace, 397 Mass. at 306. The motion judge correctly concluded
that the statements in Debra's affidavit were newly discovered
evidence.
It is undisputed that Debra was unavailable at the time of
trial. Additionally, the motion judge found that, even if Betty
Jo were called as a witness at trial, Grossberg had no reason to
believe that she had any exculpatory information contradicting
Jackson's testimony until after the defendant's convictions. In
support of this, the judge pointed to her testimony at the
suppression hearing one month before the trial, in which she
merely repeated the story she told police and refused to speak
with Grossberg. At trial, her attendance had to be secured by a
capias. Given Betty Jo's uncooperativeness and her prior
testimony, there was no reason to believe that had she been
called as a witness at trial, she would have revealed any of the
20
information contained in Debra's affidavit. The motion judge
properly found that, even if she knew of Debra's statements at
the time of trial, Betty Jo's consistently uncooperative
behavior prior to trial strongly suggests that she would not
have revealed these statements if the defense called her to
testify. Again, we discern no error in the judge's analysis.
c. Whether the affidavit casts real doubt on the justice
of the convictions. A new trial is warranted "[w]here we
determine that newly discovered evidence likely would have
functioned as a real factor in the jury's deliberations."
Commonwealth v. Cowels, 470 Mass. 607, 623 (2015). In
determining whether the newly discovered evidence would have
been a real factor in the jury's deliberations, we focus on
"what effect the omission might have had on the jury" rather
than on whether the verdict would have been different. Id.,quoting Commonwealth v. Tucceri, 412 Mass. 401, 411 (1992).
"The over-all strength or weakness of the evidence presented
against a defendant is significant . . . because it provides the
context within which to assess whether the newly discovered
evidence would have been a real factor in the jury's
deliberations." Cowels, supra.
While "[n]ewly discovered evidence that tends merely to
impeach the credibility of a witness will not ordinarily be the
basis of a new trial," Commonwealth v. Toney, 385 Mass. 575, 581
21
(1982), a new trial may be warranted where, as here, the
Commonwealth's case depends on the testimony of a single witness
and the newly discovered evidence contradicts that testimony.
See Cowels, 470 Mass. at 621.14
The motion judge found that Debra's affidavit has precisely
that effect in this case. We agree. The Commonwealth's case
against the defendant depended on the testimony of Jackson, a
witness with extensive credibility issues. The motion judge
properly recognized that, beyond Jackson's testimony, there was
no evidence that pointed to the defendant as the person who
killed Greene. The statements in Debra's affidavit do more than
just impeach Jackson's testimony; they undermine the
14In Commonwealth v. Cowels, 470 Mass. 607 (2015), the
defendants were convicted of murder in the first degree in the
stabbing death of the victim. The Commonwealth's main witness
testified to a timeline that placed the defendants at the
witness's apartment at various points throughout the night,
first with the victim and then later without her. Id. at 609-
610. The witness testified that when the defendants returned
without the victim they borrowed some clothes and made various
threatening statements indicating that they had killed the
victim. Id. The only physical evidence linking the defendants
to the witness's home were two towels with bloodstains, one of
which was too small to be tested. Id. at 610-611. After the
defendants were convicted, deoxyribonucleic acid (DNA) testing
revealed that the blood on the towel did not belong to either of
the defendants or the victim. Id. at 614. The defendants
sought a new trial on the basis of this and other newly
discovered evidence, but the trial judge denied the motion. Id.
at 614-615. On appeal, we concluded that a new trial was
warranted because the DNA testing negated key pieces of evidence
that likely were a real factor in the jury's deliberations. Id.
at 623-624.
22
Commonwealth's entire case against the defendant. Therefore,
the statements are more than just mere impeachment evidence and
are a sufficient basis for a new trial.
The motion judge accordingly concluded that Debra's
affidavit likely would have been a "significant factor" in the
jury's deliberations in this case. We also agree with this
determination. The Commonwealth's over-all case against the
defendant was dependent on Jackson's testimony, which Debra
directly contradicted. There was also little evidence to
corroborate Jackson's testimony. The motion judge therefore
properly concluded that Debra's affidavit cast real doubt on the
justice of the convictions.
3. Conclusion. For these reasons, we hold that the motion
judge did not abuse his discretion in concluding that the
affidavit is admissible and newly discovered evidence that casts
real doubt on the justice of the defendant's convictions and
that, therefore, the defendant is entitled to a new trial. The
judgments of conviction are vacated and set aside, and the
matter is remanded to the Superior Court for a new trial.
So ordered.