Commonwealth v. Drayton , 473 Mass. 23 ( 2015 )

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SJC-10667
COMMONWEALTH vs. KENJI DRAYTON.
Suffolk. April 10, 2015. - October 1, 2015.
Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ.
Homicide. Firearms. Evidence, Expert opinion, Fingerprints,
Hearsay, Declaration of deceased person. Constitutional
Law, Right to hearing. Witness, Expert. Practice,
Criminal, Capital case, New trial, Hearsay, Assistance of
counsel.
Indictments found and returned in the Superior Court
Department on December 11, 2001.
The cases were tried before Regina L. Quinlan, J., and
motions for a new trial, filed on December 12, 2006, and April
2, 2012, were heard by her.
Cathryn A. Neaves for the defendant.
Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.
LENK, J. The defendant was convicted of murder in the
first degree for a shooting that took place in an alleged
territorial conflict over the control of a "crack house," an
apartment used to sell "crack" cocaine. The bulk of the
2
evidence at trial against the defendant and his codefendant at
trial, Levino Williams, who was acquitted, derived from the
testimony of a single witness, James Jackson. Jackson was a
crack addict and alcoholic who lived in the apartment, allowed
others to sell drugs there in exchange for free drugs, and
claimed to have witnessed the defendant shoot the victim,
Michael Greene. Approximately one and one-half years after the
defendant’s conviction, another individual, Debra Bell,1 came
forward. Explaining that she had been diagnosed with metastatic
cancer and did not want her failure to disclose what she knew
about the shooting on her conscience, Debra claimed in an
affidavit that she was with Jackson using drugs and having sex
in the bathroom of the apartment at the time the shooting took
place, and that as a result Jackson could not have seen the
shooting.
Based on Debra's affidavit, the defendant moved for a new
trial on the ground of newly discovered evidence. Defense
counsel also moved to take a videotaped deposition to preserve
Debra's testimony. Debra died, however, one week after the
motion was filed, and before the judge acted on it. The motion
judge, who was also the trial judge, concluded that Debra's
affidavit was inadmissible hearsay, and denied the motion for a
1
Because Debra Bell shares a last name with her sister,
Betty Jo Bell, who is also relevant to this case, we refer to
both by their first names.
3
new trial. The defendant later submitted a second motion for a
new trial, which the judge also denied. In that motion, the
defendant argued that trial counsel acted ineffectively in
failing to call an expert witness regarding the effects of drug
and alcohol use or sleep deprivation on Jackson's testimony, and
that he was deprived of his right to a public trial due to the
unobjected-to exclusion of his mother and friend from the court
room during the jury empanelment process.
The case comes to this court on a 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
motions for a new trial. We reject the claims of error at trial
that the defendant asserts, both on direct appeal and in his
second motion for a new trial,2 and decline to grant the
defendant relief under G. L. c. 278, § 33E. However, with
regard to the defendant's first motion for a new trial, based on
newly discovered evidence, we conclude that, under the unusual
circumstances of this case, there is 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
2
The defendant does not assert before this court the
arguments that he made in his second motion for a new trial, but
we review them pursuant to our obligations under G. L. c. 278,
§ 33E.
4
persuasive guarantees of trustworthiness. We therefore remand
for an evidentiary hearing on that issue.3
1. Background. a. Evidence at trial. The Commonwealth
offered evidence at trial that supported the following theory of
the crime. Since 1993, Jackson had leased an apartment in
Boston. Several months before the shooting, Jackson became
acquainted with Greene, who was a crack dealer. In exchange for
money and free drugs, Jackson authorized Greene to sell crack
cocaine out of the apartment, and permitted other individuals to
use crack cocaine in the apartment.
In the weeks leading up to the shooting, Jackson and Greene
had entered into a dispute, due to Greene's increasingly violent
behavior and his efforts to exert control over the apartment.
At the same time, Jackson entered into an arrangement with the
defendant, and with his codefendant, Williams, similar to his
arrangement with Greene: Jackson permitted them to sell drugs
from the apartment, and in exchange received from them free
drugs and financial support. One week before the shooting,
Jackson informed Greene that he no longer wanted him selling
drugs in the apartment.
On the day of the shooting, September 20, 2001, the
defendant and Williams were in the apartment, rolling "oolies" -
3
We recognize that the trial judge is now retired and that
such a hearing must be conducted by a different judge.
5
- cigarettes laced with cocaine and "reefer" -- and drinking.
Greene appeared, and Jackson again informed him that he was no
longer permitting him to sell drugs in the apartment. Greene
became enraged. He made a call from a cellular telephone, and
threatened to "kill 'em all" and burn down the apartment. While
Greene was on the telephone, Jackson went into the bathroom. As
Jackson was preparing to leave the bathroom, he heard a gunshot.
When he emerged from the bathroom and entered the living room,
he observed the defendant fire five additional shots at Greene.
The defendant shot the victim using a gun that Jackson had
observed in the defendant's waistband several days previously.
At trial, Jackson was the sole percipient witness to the
shooting; he was also the sole source of evidence regarding the
conflict among the defendant, Williams, and Greene that
allegedly motivated the shooting. The problems with Jackson's
credibility were legion. He indicated that he had begun
drinking alcohol at age seven, began using cocaine at age
twenty-eight, and had been using crack cocaine for nearly a
decade prior to the shooting. He acknowledged that he had been
smoking crack and drinking alcohol on the day of the shooting,
and had been awake nearly continuously in the days leading up to
the shooting. He explained his belief that that his drug and
alcohol use would not have affected his ability to perceive the
shooting by noting that, because he had been using drugs and
6
alcohol "24-7 . . . over a period of years," he was "immune" to
the effects of them.
Jackson's testimony at trial contradicted his initial
statement to police during an emergency 911 call, in which he
indicated that an unknown assailant had pushed through the
apartment door and shot Greene. His testimony at trial also
partly contradicted prior testimony before the grand jury.
Jackson told the grand jury that he saw Williams standing close
behind the defendant as the defendant fired at Greene. At
trial, however, Jackson asserted that this testimony was untrue,
and that he had not seen Williams when the defendant shot
Greene.
Jackson's testimony was replete with other inconsistencies
and seeming obfuscations. For instance, Jackson insisted that
his earlier statement to police officers that he "had a pint of
Hennessy" on the day of the shooting did not mean that he drank
a pint of Hennessy cognac on that day, but merely that he
possessed a pint of Hennessy, of which he drank some.
Confronted with the apparent conflict between his grand jury
testimony that he "never slept" on the day before the shooting
and his trial testimony that he "took a nap" the night before
the shooting, Jackson insisted that he did not "call taking a
nap sleeping," but merely "resting [his] eyes." Similarly,
while Jackson provided the times for various events to police
7
officers in an initial interview on the day of the shooting, he
asserted at trial that "all those times were just a guess time,"
explaining that he "didn't keep up with no time" because he "had
no place to go" and "didn't have to worry about the time."
Jackson acknowledged near the end of his testimony that he "made
a whole lot of mistakes in [his] testimony."
Despite the severe challenges to Jackson's credibility, the
Commonwealth offered little additional evidence to corroborate
his account. The Commonwealth never located the firearm used in
the shooting. The physical evidence offered at trial linking
the defendant to the apartment was limited to a beer bottle,
which a prosecution expert testified contained a latent
fingerprint that matched the defendant's right middle finger
joint, and a cellular telephone, which was traced to a person
known to both the defendant and Williams. Several items of
physical evidence, including the telephone and crack cocaine
seized from the apartment, were lost while in police custody
before the trial.
b. Postconviction proceedings. A Superior Court jury
convicted the defendant of murder in the first degree, on
theories of both deliberate premeditation and extreme atrocity
or cruelty, in April, 2005. The defendant also was convicted of
unlawful possession of a firearm. Williams, who was tried with
the defendant as a joint venturer, was acquitted of the same
8
offenses.
On December 12, 2006, while the defendant's appeal of his
convictions was still pending, the defendant filed his first
motion for a new trial based on newly discovered evidence, in
the form of Debra's affidavit. Debra had given a statement to
police shortly after the shooting, but she had otherwise avoided
speaking to attorneys and others investigating the crime. In
her affidavit, she claimed that her statement to police was "not
completely truthful" because she "was afraid of the officers,
. . . did not want to get involved in the case," and had been
told that "the officers . . . would take care of arrest warrants
that were pending against [her] in different courts." She
apparently made herself unavailable to testify at a motion to
suppress hearing that occurred shortly before trial, and at
trial itself.
Whereas Jackson testified at trial that he was in the
bathroom by himself when the first shot was fired, and emerged
from the bathroom to witness the defendant fire several
additional shots at the victim, Debra asserted in her affidavit
that she was in the bathroom with Jackson at the time of the
shooting, and that Jackson remained in the bathroom for the
entirety of the shooting. Debra said that, after hearing noises
from outside the bathroom, she waited a few minutes before
opening the door and "briefly peek[ing] out," at which point she
9
saw "a person's legs on the floor." She "screamed to . . .
Jackson to look out the door," to which he "replied the 'Hell
with it' or words to that effect and slammed the door closed,"
stating that "he did not care about what was going on." Debra
concluded that "there was absolutely no way that either he or
[she] could have seen who shot . . . Greene or who was in the
apartment at that time."
After Debra's death in December, 2006, defense counsel
submitted additional support for his first motion for a new
trial, in the form of affidavits from two additional witnesses.
One affidavit came from Betty Jo, Debra's sister. Like Debra,
Betty Jo also gave a statement to police shortly after the
shooting, although she too claimed that she was "not truthful"
because she "was afraid of the officers" and they had offered to
"'clear' about three warrants that were pending for [her]
arrest" if she cooperated with them. Betty Jo also testified at
a hearing on the defendants' pretrial motions to suppress, her
name appeared on the Commonwealth's witness list for trial, and
she was available to testify during the trial. Shortly before
the trial, however, she indicated that she refused to speak to
defense counsel, and neither party called her at trial.
In her affidavit, Betty Jo indicated that "[e]very now and
then after the shooting on September 20, 2001, . . . Debra . . .
would tell [her] about what had occurred in the apartment . . .
10
and she would say that she and . . . Jackson were in the
bathroom getting high on crack cocaine and engaging in sexual
activity when the shooting occurred." Betty Jo also claimed
that Jackson had admitted to her, nearly five years after the
shooting, that he and Debra were in the bathroom "doing their
thing" and that he "did not know what was going on" at the time
of the shooting. Betty Jo stated that she had accompanied Debra
to her interview with police after the shooting, and both had
been independently interviewed by officers investigating the
crime. She asserted that, during the interview, police officers
sought to prompt her to identify certain photographs even though
she did not recognize them.
Defense counsel also submitted two affidavits from an
individual named Joseph Anderson, which further support Debra's
account of the events leading up to the shooting. Anderson
indicated that he went to Jackson's apartment on September 20,
2001, to purchase crack cocaine for a friend. He stated that,
after he made the purchase from Jackson, he "saw . . . Jackson
going into the bathroom with a black woman, who was known to
[him] as Debra." Anderson observed "two black males and one
black female sitting . . . in the parlor" when he purchased the
crack cocaine; upon leaving, he also "saw a black male, who was
standing in the hallway in the apartment arguing with a light
skinned male, who appeared to be Puerto Rican." Finally,
11
Anderson indicated that, "[a]bout three or four days after the
shooting," he encountered Jackson at a liquor store. The two
conversed, and Jackson allegedly said that he did not "know
anything about" the shooting and did not "give a fuck about it."
In November, 2007, the motion judge, who was also the trial
judge, denied the defendant's first motion for a new trial in a
brief opinion. The judge explained that she initially
considered holding an evidentiary hearing, but concluded based
on her review of the affidavits that an evidentiary hearing was
not necessary. The judge explained that, were Debra alive, "her
testimony . . . would tend to impeach the testimony of Jackson
[and] would not be sufficient to warrant a new trial." The
judge further observed that Debra's alleged statements would not
be admissible as a "dying declaration" because they did not
concern the cause or the circumstances of her own death.
Although the defendant argued that his constitutional rights
under the Sixth and Fourteenth Amendments to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights required the admissibility of the affidavit regardless
whether it constituted a dying declaration under State
evidentiary law, the judge's decision did not address that
argument.
The defendant filed a second motion for a new trial in
April, 2012. There he asserted an ineffective assistance of
12
counsel claim, based on trial counsel's failure to offer expert
testimony regarding the impact of sleep deprivation on
perception and memory to impeach Jackson's testimony, and a
claim for a violation of the right to a public trial, based on
the alleged exclusion of a family member and a friend from the
jury empanelment process. After an evidentiary hearing, the
judge denied the defendant's second motion for a new trial.
2. Discussion. The defendant raises three specific issues
on appeal; in addition, he urges the court to grant him relief
pursuant to its general superintendence power under G. L.
c. 278, § 33E. The first issue relates to the conduct of the
trial itself: the defendant contends that the trial judge
improperly admitted certain testimony of the Commonwealth's
fingerprint expert. We reject that argument, as well as the two
arguments that the defendant asserted in his second motion for a
new trial, and decline to grant the defendant relief under G. L.
c. 278, § 33E. The second issue relates to the judge's denial
of the defendant's motion for a new trial based on newly
discovered evidence. We conclude that the defendant's motion
raised a substantial issue, and therefore remand for an
evidentiary hearing. The third issue relates to defense
counsel's posttrial conduct with respect to the defendant's
motion for a new trial: the defendant argues that defense
counsel did not act sufficiently quickly to move for a
13
videotaped deposition of Debra, thus depriving the defendant of
effective assistance of counsel. In light of our remand for an
evidentiary hearing on the defendant's motion for a new trial
based on newly discovered evidence, we decline to reach that
issue.
a. Issues on direct appeal. The Commonwealth's expert
testified that she "individualized or identified" a latent
fingerprint found on a beer bottle at the crime scene to
defendant's "right middle finger joint." The defendant contends
that the admission of this testimony was in error. Because
trial counsel did not object, we review to determine "whether
there was error, and if so, whether it created a substantial
likelihood of a miscarriage of justice." Commonwealth v. Perez,
460 Mass. 683, 689-690 (2011).
We have "concluded that the underlying theory and process
of latent fingerprint identification . . . are sufficiently
reliable to admit expert opinion testimony regarding the
matching of a latent impression with a full fingerprint"
(citation and quotation omitted). Commonwealth v. Wadlington,
467 Mass. 192, 204 (2014). We have "warned," however, "that
testimony to the effect that a print matches, or is
'individualized' to, a known print should be presented as an
opinion, not a fact, and opinions expressing absolute certainty
about, or the infallibility of, an 'individualization' of a
14
print should be avoided" (citation, quotation, and alterations
omitted). Id. Here, on direct examination, the expert
testified that the print was "individualized or identified" with
the defendant's print, but did not describe that
individualization as an absolute certainty. On cross-
examination the expert did indicate that she was "positive that
[she] identified" the defendant's print. Because this testimony
occurred on cross-examination, however, and because there was no
motion to strike, we identify no error in the testimony, much
less an error sufficient to create a substantial likelihood of a
miscarriage of justice. See id. at 205.
b. Relief under G. L. c. 278, § 33E. Pursuant to our
obligations under G. L. c. 278, § 33E, we have reviewed the
entire record and considered the issues raised in the
defendant's second motion for a new trial. We agree with the
motion judge's determination that, because the effects of
Jackson's alcohol and drug use and sleep deprivation on his
capacity to perceive and recall events were thoroughly developed
through cross-examination, calling an expert on those issues
would not have accomplished something meaningful for the
defense. We also conclude that the motion judge properly
determined that the defendant had not borne his burden of
demonstrating that the court room was closed during any portion
of the jury selection, because the defendant offered no evidence
15
indicating that the court room was closed by any specific order
or that court officers ever told anyone to leave. We identify
no basis to exercise our authority pursuant to G. L. c. 278,
§ 33E, either to reduce the verdict of murder in the first
degree or to order a new trial.
c. Motion for a new trial on the basis of newly discovered
evidence. Under Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001), a trial judge "may grant a new trial at any
time if it appears that justice may not have been done." 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." Commonwealth v. Grace, 397 Mass. 303, 305-306
(1986). The defendant "also bears the burden of demonstrating
that any newly discovered evidence is admissible." Commonwealth
v. Weichell, 446 Mass. 785, 799 (2006).
In adjudicating a motion for a new trial, the "judge may
rule on the issue or issues presented by such motion on the
basis of the facts alleged in the affidavits without further
hearing if no substantial issue is raised by the motion or
affidavits." Mass. R. Crim. P. 30 (c), as appearing in 435
Mass. 1501 (2001). "When a substantial issue has been raised,
16
and supported by a substantial evidentiary showing," however,
"the judge should hold an evidentiary hearing" (citation and
quotation omitted). Commonwealth v. Muniur M., 467 Mass. 1010,
1011 (2014). See also Reporters' Notes to Rule 30, Mass. Ann.
Laws Court Rules, Rules of Criminal Procedure, at 1709
(LexisNexis 2014-2015) ("Where a substantial issue is
raised, . . . the better practice is to conduct an evidentiary
hearing"). We generally review a judge's decision on a motion
for a new trial under an abuse of discretion standard.
Commonwealth v. Muniur M., supra at 1012. Where the defendant's
motion for a new trial raises an issue "of constitutional
dimension," however, "we are not bound by an abuse of discretion
standard, but rather examine the issue independently."
Commonwealth v. Conkey, 443 Mass. 60, 66-67, (2004), S.C., 452
Mass. 1022 (2008). Because we conclude that the defendant's
first motion for a new trial raises a sufficiently substantial
issue whether Debra's affidavit falls within a narrow,
constitutionally based exception to the hearsay rule, we remand
for an evidentiary hearing.
The judge's decision to deny the defendant's first motion
for a new trial without holding an evidentiary hearing appears
to have rested in large part on the judge's determination that
Debra's affidavit was not admissible as a dying declaration.
That determination, as the defendant concedes, was correct.
17
Under the "dying declaration" exception to the hearsay rule, "a
statement made by a declarant-victim" is admissible in a
prosecution for homicide, provided that the statement was made
"under the belief of imminent death," that the declarant "died
shortly after making the statement," and that the statement
"concern[ed] the cause or circumstances of what the declarant
believed to be her own impending death." Commonwealth v.
Nesbitt, 452 Mass. 236, 251-252 (2008). Because Debra's
statement in her affidavit did not concern the cause or
circumstances of her impending death, her statement is not
admissible under the traditional hearsay exception for dying
declarations.
The defendant also correctly concedes that this court has
not yet recognized, as a matter of evidentiary law, any other
hearsay exception that would encompass Debra's affidavit. For
instance, the Federal rules of evidence include a "residual"
exception, which allows the admission of hearsay evidence that
is not admissible under any other exception where the court
determines that (a) "the statement has equivalent guarantees of
trustworthiness"; (b) "the statement is offered as evidence of a
material fact"; (c) the statement "is more probative on the
point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts"; and (d) "the
purposes of [the] rules [of evidence] and the interests of
18
justice" will best be served by the admission of the statement
into evidence. Fed. R. Evid. 807. Thirty-one States have
adopted some form of a "residual" or "catchall" exception to the
hearsay rule, often patterned on the Federal rule.4 On several
occasions, however, this court has declined to recognize an
"'innominate' or residual exception to the hearsay rule"
(citation and quotation omitted) akin to the Federal residual
exception. Commonwealth v. Pope, 397 Mass. 275, 281-282 (1986).
See Commonwealth v. Semedo, 422 Mass. 716, 728 (1996);
Commonwealth v. Costello, 411 Mass. 371, 377 (1991);
Commonwealth v. Meech, 380 Mass. 490, 496-497 (1980);
Commonwealth v. White, 370 Mass. 703, 713 (1976); M.S. Brodin &
M. Avery, Handbook of Massachusetts Evidence § 8.25 (8th ed.
2007).
In nearly all of those States that, like Massachusetts,
have not adopted a broader residual hearsay exception akin to
4
See Alaska R. Evid. 804(b)(5); Ariz. R. Evid. 807; Ark. R.
Evid. 804(b)(5); Colo. R. Evid. 807; Conn. Code Evid. 8-9; Del.
R. Evid. 807; Ga. Code Ann. § 24-8-807 (LexisNexis 2015); Haw.
Rev. Stat. § 626-1, Rule 804; Idaho R. Evid. 804; Iowa Code Ann.
§ 5.807 (West 2014); La. Code Evid. art. 804(b)(6); Md. Rule 5-
803(b)(24); Mich. R. Evid. 804(b)(7); Minn. R. Evid. 807; Miss.
R. Evid. 804(b)(5); Mont. R. Evid. 804(b)(5); Neb. Rev. Stat.
§ 27-804(2)(e); Nev. Rev. Stat. § 51.315; N.H. R. Evid.
804(b)(6); N.M. R. Evid. 11-807(A); N.C. Gen. Stat. 8C-1,
804(b)(5); N.D. R. Evid. 807(a); Okla. Stat. tit. 12, § 2804.1;
Or. Rev. Stat. § 40.465(3)(h); R.I. R. Evid. 804(b)(5); S.D.
Codified Laws § 19-19-807; Utah R. Evid. 807(a); W. Va. R. Evid.
807(a); Wis. Stat. § 908.045(6); Wyo. R. Evid. 804(b)(6). See
also Robinson v. Commonwealth, 258 Va. 3, 10 (1999).
19
the Federal rule, courts and commentators have acknowledged the
existence of a far narrower, constitutionally based hearsay
exception, rooted in the United States Supreme Court's decision
in Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (Chambers).5
5
See Ex parte Griffin, 790 So. 2d 351, 355 (Ala. 2000)
("[W]e follow the United States Supreme Court's holding in
Chambers and hold that [the defendant's] constitutional rights
supersede the hearsay rule in the Alabama Rules of Evidence");
People v. Blair, 25 Cal. 3d 640, 665 (1979) (en banc)
(acknowledging that, under Chambers, court may "not elevate a
fastidious adherence to the technicalities of the law of
evidence over the right to a fair trial"); Marek v. State, 14
So. 3d 985, 995 (Fla. 2009) (acknowledging that, in some
circumstances, Chambers requires admission of otherwise
inadmissible hearsay, but "only where the [statement] sought to
be admitted bears indicia of reliability"); People v. Tenney,
205 Ill. 2d 411, 434 (2002) (concluding, based on Chambers,
that, "where hearsay testimony bears persuasive assurances of
trustworthiness and is critical to the accused's defense, its
exclusion deprives the defendant of a fair trial in accord with
due process"); Thomas v. State, 580 N.E.2d 224, 227 (Ind. 1991)
(altering State evidentiary law to bring it into compliance with
Chambers); State v. Hills, 264 Kan. 437, 445 (1998) ("Kansas
courts have . . . disallowed the mechanical application of
evidentiary rules where the failure to do so would result in the
State not receiving a fair trial"); Crawley v. Commonwealth, 568
S.W.2d 927, 931 (Ky. 1978) (adopting a broader exception for
statements against interest to bring State evidentiary law into
compliance with constitutional requirements articulated in
Chambers); State v. Webb, 424 So. 2d 233, 238-240 (La. 1982)
(reversing conviction of murder after determining that trial
judge's restriction on defense counsel's cross-examination of
police detective regarding alleged third party's confession
"represent[ed] error of constitutionally significant
proportions"); McLaughlin v. State, 378 S.W.3d 328, 346 (Mo.
2012) ("The United States Supreme Court case of Chambers . . .
set forth the constitutionally based exception to the rule
against the admission of hearsay during the guilt phase of
trial, which this Court applies"); State v. Bunyan, 154 N.J.
261, 265, 266 (1998) (concluding that, while "New Jersey has
declined to adopt a residual exception" akin to Federal residual
hearsay exception, "constitutional provisions, such as the
20
There the defendant sought to defend against a prosecution for
murder by introducing a third party's subsequently repudiated
confession to the crime. Id. at 289-290. The defendant's
efforts were largely thwarted by the combination of the State’s
hearsay rule and its "party witness" or "voucher" rule, which
prohibited the defense from calling the third party and then
compulsory process clause of the Sixth Amendment [to the United
States Constitution], may require admission of evidence even
though the evidence would be inadmissible according to State
rules of evidence"); People v. Stultz, 2 N.Y.3d 277, 286 (2004)
("grand jury testimony of an unavailable witness . . . must be
admitted when it is material, exculpatory and has sufficient
indicia of reliability"); People v. Robinson, 89 N.Y.2d 648, 650
(1997) (concluding that, although not authorized by statute,
defendant's "constitutional right to due process" requires
admission of grand jury testimony where declarant is unavailable
and hearsay testimony at issue "is material, exculpatory and has
sufficient indicia of reliability"); State v. Sumlin, 69 Ohio
St. 3d 105, 110 (1994) (after determining that trial court did
not abuse its discretion in declining to allow statements into
evidence under State evidentiary law, "consider[ing] whether
fundamental principles of due process required the trial court
to admit the statements"); Commonwealth v. Lewis, 472 Pa. 235,
240-241 (1977) (observing that conclusion that statements at
issue "were undoubtedly hearsay . . . does not end our
consideration of this issue," before analyzing admissibility of
statements under Chambers); Advisory Commission Comment to Tenn.
R. Evid. 804 (observing that, while "[t]here is no residual
exception even where declarants are unavailable[,]
[o]ccasionally . . . constitutional considerations require that
a tribunal permit the accused in a criminal case to introduce
trustworthy hearsay not falling within a traditional
exception"). See also Inwinkelried, The Constitutionalization
of Hearsay: The Extent to Which the Fifth and Sixth Amendments
Permit or Require the Liberalization of the Hearsay Rules, 76
Minn. L. Rev. 521, 547 (1992) ("To successfully invoke the
constitutional right to present evidence, the accused must
persuade the judge that the testimony in question is crucial to
the defense").
21
challenging his repudiation of his confession on cross-
examination. Id. at 294. The United States Supreme Court
concluded that the application of State evidentiary rules may
produce results that conflict with the defendant's rights under
the compulsory process clause of the Sixth Amendment or the due
process clause of the Fourteenth Amendment. Id. at 302. The
Court observed that, "[a]lthough perhaps no rule of evidence has
been more respected or more frequently applied in jury trials
than that applicable to the exclusion of hearsay, exceptions
tailored to allow the introduction of evidence which in fact is
likely to be trustworthy have long existed." Id. Because the
sworn confession at issue in the case "bore persuasive
assurances of trustworthiness" and "also was critical to [the
defendant's] defense," the Court concluded that "the hearsay
rule may not be applied mechanistically to defeat the ends of
justice." Id. See Green v. Georgia, 442 U.S. 95, 97 (1979)
(constitutionally impermissible for State to apply hearsay rule
to bar third-party confession where confession was "highly
relevant to a critical issue in the punishment phase of the
trial" and "substantial reasons existed to assume its
reliability").
This court has already recognized a constitutionally based
hearsay exception in one context. Because the right to defend
against criminal charges by presenting third-party culprit
22
evidence "is of a constitutional dimension," we have held that a
defendant may offer otherwise inadmissible hearsay evidence to
support the assertion that a third party is the true culprit,
provided certain conditions are met. Commonwealth v. Silva-
Santiago, 453 Mass. 782, 801, 804 n.26 (2009). The defendant
must establish that the hearsay statement is "otherwise
relevant, will not tend to prejudice or confuse the jury,"
displays "substantial connecting links to the crime," has "a
rational tendency to prove the issue the defense raises," and is
not "too remote or speculative" (citations and quotations
omitted). Id. at 804. See Commonwealth v. Morgan, 449 Mass.
343, 355-357 (2007); Mass. G. Evid. § 1105 (2015).
To be sure, Debra's affidavit does not constitute third-
party culprit evidence. The United States Supreme Court's
decision in Chambers, however, was not expressly limited to
third-party culprit evidence. The Supreme Court and other
courts have applied the principle articulated in Chambers to
cases that did not involve the exclusion of third-party culprit
evidence. See Crane v. Kentucky, 476 U.S. 683, 690-691 (1986)
(holding that trial court violated principle articulated in
Chambers when it barred defendant from introducing evidence to
challenge voluntariness of his confession); State v. Bunyan, 154
N.J. 261, 265, 269-272 (1998) (applying Chambers principle to
affidavit from purported eyewitness asserting that defendant did
23
not commit crime of which he was convicted).
We identify no persuasive reasons for confining our
recognition of a constitutionally based hearsay exception to the
context of third-party culprit evidence. Third-party culprit
evidence challenges the prosecution's case in a way that, while
potentially powerful, is ultimately indirect: it seeks to
create reasonable doubt as to the defendant's guilt by
suggesting that another person in fact committed the crime. An
affidavit that directly contradicts the testimony of the sole
purported eyewitness to a crime likewise undermines the
prosecution's case in a way that is indirect yet potentially
powerful. Accordingly, we believe that the principle
articulated in Chambers applies to Debra's affidavit: the
affidavit will be admissible, despite its failure to fall into
any of our traditional hearsay exceptions, provided that the
defendant establishes both that it "[i]s critical to [the
defendant's] defense" and that it bears "persuasive assurances
of trustworthiness." Chambers, 410 U.S. at 302.
Having recognized that the principle articulated in
Chambers applies to Debra's affidavit, we conclude that the
defendant's first motion for a new trial raises a substantial
issue, warranting an evidentiary hearing. Debra's affidavit
plainly would have been critical to the defense. The affidavit
directly contradicts Jackson's testimony, indicating that he
24
could not possibly have observed what he claimed at trial to
have observed. Jackson's other testimony suggested that both
the defendant and the defendant's acquitted codefendant,
Williams, had a motive to murder Greene. In the absence of
Jackson's statement that he saw the defendant shooting Greene,
however, there is no evidence that makes it more likely than not
-- much less evidence capable of proving beyond a reasonable
doubt -- that the defendant, rather than Williams, was the
perpetrator.
Because Debra's affidavit is critical to the defense, its
admissibility hinges on whether the defendant establishes that
it bears persuasive assurances of trustworthiness. Although the
record as it stands does not permit us to answer that question,
the evidence submitted by the defendant establishes that there
is a substantial issue whether the affidavit has sufficient
assurances of trustworthiness. In reaching this determination,
we draw on several instructive similarities between the
circumstances at issue here and those involved in Chambers. Cf.
Montana v. Egelhoff, 518 U.S. 37, 52-53 (1996) (plurality
opinion) (characterizing Chambers as "fact-intensive" and "an
exercise in highly case-specific error correction"); State v.
Bunyan, 154 N.J. at 270 ("Because the holding of Chambers is so
intimately related to the facts and circumstances of that
case, . . . we must consider the facts of Chambers and compare
25
them to the facts of this case" [citation and quotation
omitted]).
In Chambers, 410 U.S. at 300-301, the United States Supreme
Court observed that, while the hearsay statement at issue fell
outside of the hearsay exception for statements against
interest, the admission of the statement was consistent with the
underlying "rationale" for that exception. Here, similarly,
while Debra's affidavit fails to satisfy the technical
requirements for the dying declaration hearsay exception, it
appears to fall within the rationale for the exception. A
traditional justification for the dying declaration exception is
that, when a person is "under a sense of impending death" and
"every hope of this world is gone[,] . . . the mind is induced
by the most powerful considerations to speak the truth"
(citations and quotations omitted). Giles v. California, 554
U.S. 353, 397 (2008). See Chia v. Cambra, 360 F.3d 997, 1006
(9th Cir. 2004) (although hearsay statement at issue did "not
technically meet the definition of a dying declaration, it was
given when [the declarant] knew that he was in real danger of
imminent death -- a traditional indicium of reliability").
Consistent with that justification, in her affidavit Debra
attributed her decision to come forward to the "uncertainty of
[her] medical condition" and her desire to clear her conscience
of her prior failure to come forward with what she knew about
26
the shooting. Indeed, according to Betty Jo, Debra's plea that
she "make the truth known about the shooting in . . . Jackson's
apartment" was her "sister's dying words." These circumstances,
particularly given that the Commonwealth has as of yet offered
no alternative explanation for why Debra would have an incentive
to lie in her affidavit, tend to support the trustworthiness of
Debra's statement.
The United States Supreme Court also observed in Chambers,
410 U.S. at 300, that the hearsay statement at issue bore
persuasive assurances of trustworthiness because it "was
corroborated by some other evidence in the case." Here
similarly, Debra's affidavit is corroborated by Jackson's own
initial statements to police, in which he asserted that he did
not see the shooter. The four affidavits of Debra, Betty Jo,
and Anderson, moreover, bolster one another through their
inclusion of shared details. For instance, Jackson testified at
trial that only he, the defendant, Williams, and the victim were
present in the apartment at the time of the shooting. Both
Debra and Anderson, however, indicate that there were others
present moments before the shooting. Debra and Anderson appear
to have observed one another, with Anderson remarking that he
"saw . . . Jackson going into the bathroom with a black
woman . . . known to [him] as Debra," and Debra observing that
she saw "a black male known to [her] as Joe." Both Debra and
27
Betty Jo also observed the presence of a woman known to them as
"Sandra."
Finally, in Chambers the Supreme Court remarked that the
third party confessed on multiple occasions. The Court
concluded that "[t]he sheer number of independent confessions
provided additional corroboration for each," particularly since
each confession "was made spontaneously to a close acquaintance
shortly after the murder had occurred." Id. Here, Betty Jo's
affidavit indicates that, following the shooting and until
Debra's death, Debra on multiple occasions told her "that she
and . . . Jackson were in the bathroom at the time of the
shooting and that they could not see what had occurred or who
had been involved in the shooting."
In identifying these elements that arguably may support the
trustworthiness of Debra's affidavit, we do not in any way
suggest that the affidavit ultimately is admissible. We
conclude only that there is a substantial issue whether Debra's
affidavit is supported by sufficiently persuasive guarantees of
trustworthiness that it is admissible under the constitutional
principle articulated in Chambers, and that the resolution of
that issue will benefit from an evidentiary hearing.6
6
There is no indication in the record that either Betty Jo
or Anderson is unavailable to testify and expand upon the
matters addressed in their affidavits. Were they to testify at
an evidentiary hearing on the defendant's motion for a new
28
If the judge determines on remand that Debra's affidavit is
supported by sufficiently persuasive guarantees of
trustworthiness to be admissible, the result will not be an
automatic new trial. Instead, the judge must then decide
whether Debra's affidavit, together with the evidence offered by
Betty Jo and Anderson, satisfies the established standard for a
motion for a new trial. That standard requires a showing "both
that the evidence is newly discovered and that it casts real
doubt on the justice of the conviction." Commonwealth v. Grace,
397 Mass. at 305. The inquiry into whether the defendant has
satisfied the new trial standard is conceptually distinct from
the threshold inquiry into whether Debra's affidavit is
admissible at all, although 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.7
trial, the judge could assess their credibility as it bears on
the trustworthiness of Debra's affidavit. Similarly, there may
also be testimony taken from the lawyer who prepared Debra's
affidavit, who could provide information about her physical and
mental condition at the relevant time. The Commonwealth
likewise could call witnesses and probe factors relating to,
among other things, Debra's potential motives and state of mind
at the time she gave her affidavit and before her death. For
instance, it could be explored whether Debra had any sort of
relationship with the defendant that might have created a motive
for her to lie in order to support the defendant's motion for a
new trial.
7
In addition to concluding that Debra's affidavit was not
29
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." Id. at 306. The Commonwealth asserts
that, regardless of whether the affidavit is admissible, it is
not newly discovered. The Commonwealth concedes that Debra was
unavailable at the time of the trial, given the prosecution's
unsuccessful efforts to locate her. The Commonwealth, however,
contends that Betty Jo was available at the time of trial.
Because Betty Jo allegedly knew that her sister claimed to have
been in the bathroom with Jackson at the time of the shooting,
and because defense counsel chose not to call Betty Jo as a
witness, the Commonwealth contends that the defendant has not
met his burden of showing that the substance of Debra's
affidavit was not reasonably discoverable at the time of the
trial.
admissible as a dying declaration, the judge also determined
that Debra's statements "would not be sufficient to warrant a
new trial" because it only "tend[s] to impeach the testimony of
Jackson." In Commonwealth v. Cowels, 470 Mass. 607, 621 (2015),
however, which we decided after the judge denied the defendant's
first motion for a new trial, we clarified that "we have never
adopted an inflexible rule that newly discovered evidence that
merely corroborates or impeaches a witness's testimony is an
insufficient basis for a motion for a new trial." Indeed, we
noted that, "in rare cases, a new trial may be warranted where
the Commonwealth's case depends so heavily on the testimony of a
witness and where the newly discovered evidence seriously
undermines the credibility of that witness" (citations,
quotations, and alterations omitted). Id.
30
The motion judge did not address the question whether the
evidence offered by the defendant was newly discovered, likely
because of her determination that, in any event, Debra's
affidavit would not be admissible. Like the issue whether
Debra's affidavit bears persuasive assurances of
trustworthiness, we believe that the question whether the
substance of Debra's affidavit is newly discovered warrants an
evidentiary hearing. We note, for instance, that Betty Jo's
affidavit indicates that she was "not completely truthful" with
the police officers who questioned her because she "did not want
to get involved in the case," and that she stated at the
suppression hearing conducted shortly before the trial that she
refused to speak with defense counsel. We also have no
information about whether Anderson was available at the time of
the trial. In light of these circumstances, we think that the
answer to the question whether "reasonable pretrial diligence
would . . . have uncovered" (quotation omitted) the information
contained in Debra's affidavit hinges on questions of fact that
warrant an evidentiary hearing. Commonwealth v. Weichell, 446
Mass. 785, 799 (2006).
We conclude by emphasizing the narrowness of the
constitutional principle that governs this case and necessitates
our remand. Our decision does not signal a departure from our
long-standing refusal to adopt a broad residual hearsay rule
31
modeled on the Federal rule. In the vast majority of cases, the
established hearsay exceptions will continue to govern the
admissibility of hearsay evidence at most criminal trials, with
this constitutional hearsay exception operating only in the
rarest of cases, where otherwise inadmissible evidence is both
truly critical to the defense's case and bears persuasive
guarantees of trustworthiness.
d. Ineffective assistance of counsel based on defense
counsel's posttrial conduct. The defendant argues that, if this
court concludes that Debra's affidavit is not admissible, then
we should find that counsel provided ineffective assistance in
failing to act immediately to preserve Debra's testimony, and
that counsel's error caused a substantial likelihood of a
miscarriage of justice. Because of the inadequacy of the record
before us at this point and because we are remanding the case
for a determination whether Debra's affidavit is admissible
under the standard articulated in Chambers, we decline to reach
the defendant's ineffective assistance of counsel claim based on
defense counsel's posttrial conduct. If the judge on remand
concludes that the affidavit is not admissible, the defendant
may then bring a motion for a new trial based on defense
counsel's allegedly ineffective posttrial conduct in handling
the defendant's motion for a new trial.
3. Conclusion. The defendant's convictions are affirmed,
32
as is the order denying the defendant's second motion for a new
trial. The order denying the defendant's first motion for a new
trial, however, is vacated, and the case is remanded to the
Superior Court for further consideration of that motion in a
manner consistent with this opinion.
So ordered.