Commonwealth v. Sullivan

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SJC-11504
COMMONWEALTH vs. MICHAEL J. SULLIVAN.
Middlesex. April 10, 2014. - August 15, 2014.
Present: Ireland, C.J., Spina, Cordy, Gants, & Duffly, JJ.1
Homicide. Practice, Criminal, Capital case, New trial.
Evidence, Scientific test, Exculpatory.
Indictments found and returned in the Superior Court
Department on April 24, 1986, and May 14, 1986, respectively.
A motion for a new trial, filed on March 9, 2012, was heard
by Kathe M. Tuttman, J.
A request for leave to appeal was allowed by Spina, J., in
the Supreme Judicial Court for the county of Suffolk.
Robert J. Bender, Assistant District Attorney (Steven C.
Hoctor, Assistant District Attorney, with him) for the
Commonwealth.
Dana Alan Curhan for the defendant.
SPINA, J. The defendant, Michael J. Sullivan, was
convicted by a jury in Superior Court of murder in the first
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
degree and armed robbery arising out of the brutal stomping
death of Wilfred McGrath. We affirmed the defendant's
convictions on direct appeal. Commonwealth v. Sullivan, 410
Mass. 521, 533 (1991). Since then, the defendant has sought
postconviction relief both in State and Federal courts.2 At
issue in this case is the defendant's most recent motion for a
new trial. As a result of the reexamination by a private
forensic laboratory of certain physical evidence from the
defendant's trial, which revealed that the victim's blood was
not present on a jacket purportedly worn by the defendant during
the killing, the defendant filed a motion for a new trial based
2
The defendant filed his first motion for a new trial in
1993 alleging ineffective assistance of counsel. The motion was
denied by the trial judge, and the defendant's subsequent
application for leave to appeal the ruling was denied by a
single justice of this court. In 1996, the defendant filed a
petition for a writ of habeas corpus in the United States
District Court for the District of Massachusetts, which also was
denied. The defendant pursued further litigation of the
petition in the United States Court of Appeals for the First
Circuit, which ordered in 2002 that any further Federal
proceedings be stayed to allow the defendant to exhaust certain
claims in State court. The defendant thereafter filed a second
motion for a new trial in Superior Court in 2008 and, along with
that motion, requested funds to permit further scientific
testing of a jacket belonging to the defendant and a hair found
in the pocket of that jacket. The defendant's motion for a new
trial was denied on the merits by a judge in the Superior Court,
and the defendant's subsequent application for leave to appeal
was denied by a single justice of this court. In 2010, the
defendant renewed his request for funds for testing of the
jacket. The judge denied the motion for funds but allowed the
motion for retesting once informed that the Committee for Public
Counsel Services Innocence Program was willing to provide funds
for scientific analysis in a private laboratory.
3
on newly available evidence. The motion judge3 granted the
defendant's motion, and the Commonwealth sought leave to appeal
from a single justice of this court. The Commonwealth's
application was granted, and the Commonwealth argues on appeal
that the motion judge erred in concluding that the jacket was a
key piece of corroborative evidence in the case against the
defendant and that the newly available evidence arising from the
retesting of the jacket casts real doubt on the justice of the
defendant's conviction. We agree with the motion judge, and we
affirm the order granting the defendant's motion for a new
trial.
1. Facts. The facts surrounding the killing of the victim
are set forth in detail in Sullivan, 410 Mass. at 522-523. We
summarize those facts here and supplement them with other
relevant facts from the trial record and the facts found by the
motion judge to be significant with respect to the defendant's
motion for a new trial, all of which are supported by the
record.
In the early morning hours of March 7, 1986, the victim,
Wilfred McGrath, was murdered by kicking and stomping in the
apartment of an individual named Gary Grace. Id. The victim's
body was looted for drugs, money, and jewelry, including a watch
3
As the trial judge had retired, the motion judge was not
the trial judge.
4
and gold chains. Id. at 523. The victim's body was then
transported in the trunk of the defendant's car and left in an
alley behind an abandoned grocery store, where it was discovered
close to eighteen hours later, after midnight on March 8. At
trial, none of these facts was disputed. The defendant granted
in his closing argument that the key issue in dispute was
whether the defendant was present and participated in the
beating and robbery of the victim.
At trial, the prosecution and the defense each presented
the testimony of a witness who admitted to being present during
the killing. However, the witnesses' respective accounts of the
killing "diverged sharply." Id. at 522-523. One witness
testified that the defendant kicked and stomped the victim to
death. Id. The other testified that the defendant was not even
present at the scene. Id. at 523.
Grace served as the key prosecution witness. See id. at
522. The jury heard evidence that Grace had entered into a plea
agreement with the Commonwealth which provided that in exchange
for truthful testimony at the defendant's trial, the
Commonwealth would withdraw the indictments charging murder and
armed robbery then pending against Grace for his involvement in
the killing of McGrath and instead seek an indictment charging
accessory after the fact, to which Grace would plead guilty and
5
for which the Commonwealth would recommend a sentence of six to
seven years. Id. at 523-524.
Over four days of testimony, including almost two days of
cross-examination, Grace testified in detail to the
circumstances of McGrath's death. He testified that on the
evening of March 6, 1986, he slept alone in his apartment and
was awakened by a knock at his door at approximately 7 or 8 A.M.
The defendant, along with Emil Petrla and Steven Angier, all
people Grace knew, had arrived at Grace's apartment.
Accompanying them was the victim, whom Grace testified he had
not met before. Grace testified that the defendant was wearing
sneakers, jeans, and a purple jacket. Petrla was wearing dress
shoes, dress pants, a white sweater, and a black jacket. Angier
was wearing sneakers, sweat pants, and a sweat shirt. Grace was
initially wearing only his underclothes when he answered the
door but subsequently put on pants, a shirt, and a pair of
sneakers.
As Grace began to wash up in the bathroom of his apartment,
the other four men sat in Grace's kitchen, drinking beer and
using cocaine as the defendant and the victim discussed a
potential arrangement for the sale of drugs. At different
points, the defendant and Petrla each informed Grace that they
were planning to rob the victim. Despite Grace's requests that
they not do so in his apartment, Petrla wrapped a belt around
6
his hand and struck the victim in the head three times. The
victim then either was pulled or fell to the floor. Grace also
testified that once the victim was on the floor, Petrla kicked
the victim three to four times. The defendant then commenced
kicking and stomping the victim's head repeatedly, even after
the victim was unconscious, and despite Grace's, and eventually
Petrla's, attempts to stop him.
Grace further testified that after the beating, the victim
lay unconscious on the floor and appeared dead. There were
puddles of blood on the floor, blood on the walls, and blood on
the stove. Grace testified that the defendant at one point
ripped gold chains off the victim's neck with such force that
the victim's body was lifted off the ground. The defendant,
Petrla, and Angier also searched the victim's pockets, splitting
the cash they found among the three of them. According to
Grace's testimony, Petrla also took a gold watch from the
victim's body.
Grace then insisted that the men remove the victim's body
from his apartment. Grace, Petrla, and Angier wrapped the body
in a quilt from Grace's bed along with towels from Grace's
bathroom while the defendant went outside to move his car. The
three men then helped the defendant empty his trunk, and with
the defendant in the driver's seat, Petrla, Angier, and Grace
placed the victim's body in the trunk.
7
According to Grace's testimony, the defendant drove the car
with Petrla riding in the passenger seat, Grace behind the
defendant, and Angier behind Petrla. The four men drove
together first to the area behind the abandoned grocery store
where Petrla, Angier, and the defendant removed the body from
the trunk, and then they drove to a car wash where the four men
attempted to clean the interior and exterior of the car. After
leaving the car wash, while still driving, the defendant removed
one of his sneakers and threw it out the window. He attempted
to throw the other one out, but Petrla stopped him from drawing
attention to the car.
The four men then stopped at a liquor store to purchase
beer, and then at an apartment to purchase cocaine. At
approximately 10:30 A.M., they arrived at the defendant's
apartment, which he shared with his sister, Kathy Sullivan.
Grace further testified that later that afternoon, he saw the
defendant, Petrla, and the defendant's sister, Kathy, go into a
bedroom in the apartment. When they emerged fifteen to twenty
minutes later, Kathy was crying. While she was washing dishes
over the sink, the defendant told her not to worry and to "stick
by your brother no matter what." Finally, Grace testified that
after the killing, he saw Petrla wearing the victim's watch and
that Petrla then told him of his plan to sell the watch for
cocaine.
8
Testimonial evidence presented at trial tended to
corroborate Grace's version of the events surrounding the
victim's death. First, the investigation had established that
the night before his death, the victim had been out at a local
bar called Mallet where he was with the defendant's sister,
Kathy. The victim and Kathy went to some other bars with an
acquaintance before being dropped off by a friend of the
victim's at Kathy's apartment at approximately 3:30 A.M. on
March 7. At 3:30 A.M., Kathy's niece, Kimberly Sullivan, called
the apartment and spoke to Kathy. Kimberly then arrived at the
apartment sometime between 3:30 and 4 A.M. Kathy, Kimberly, and
the victim sat in the living room until the victim departed at
approximately 6 A.M.
Although Kimberly did not see the defendant during that
time, she saw that the defendant's bedroom door was closed, and
she saw Kathy's young son, whom the defendant had been
babysitting that evening. Kimberly also testified that she saw
the victim leave the apartment at approximately 6 A.M. and that
she saw the defendant leave sometime after that. She testified
that it was light out when the defendant left, although she was
not certain whether the defendant left shortly after the victim
or closer to two hours later at 8 A.M. Kimberly further
testified that hours later, around 10:30 A.M., the defendant
returned to the apartment with Grace, Petrla, and Angier.
9
According to Kimberly's testimony it appeared that the four men
arrived together, and they were carrying beer with them. She
also testified that Grace and Angier were wearing sneakers on
their feet and that Petrla was wearing dress shoes. Unlike
Grace, however, Kimberly testified that the defendant was
wearing boots while he was in the apartment, although she also
testified that the defendant usually wore boots, and she did not
have a strong memory of what he had on his feet when she saw him
arrive at the apartment.
Evidence regarding the victim's activities leading up to
his death, combined with Kimberly's testimony, provided an
explanation as to how the victim could have come to be in the
presence of the defendant in the early morning of March 7 when
he arrived at Grace's apartment. Additionally, Kimberly's
testimony was consistent with Grace's as to the time that the
men arrived at the apartment, what the men were wearing on their
feet, and the fact that they were carrying beer with them. Like
Grace, Kimberly also testified that later in the afternoon on
March 8, she saw her aunt, Kathy, washing dishes in the kitchen
with tears in her eyes and heard the defendant say to her,
"Don't worry about it."
Physical evidence presented to the jury also corroborated
certain details of Grace's testimony. The medical examiner
testified that the victim was likely killed between 6 A.M. and
10
10 A.M. on March 7 and that two distinct wound patterns appeared
on the victim's skull. On one side were wounds consistent with
the victim having been kicked with a dress shoe, and on the
other side were more severe blows consistent with a sneaker.
Additionally, Grace testified that at one point the defendant
was stomping the victim's head so intensely that he was using
two feet, almost standing on the victim's head. This testimony
was corroborated by an injury that the medical examiner
described as almost a puncture wound or a "cut out" consistent
with the heel of a sneaker on the right side of the victim's
skull.
Certain blood evidence in the apartment and the car was
also consistent with Grace's testimony. Grace testified that
the defendant kicked the victim with such force that at one
point the defendant had to steady himself against the stove.
The State chemist who processed Grace's apartment testified that
the underside of the stove handles tested positive for blood.
Additionally, trace evidence of blood was found in several
places in the defendant's car, including on the steering wheel,
on the turn signal lever, on both the brake and accelerator
pedals, on the passenger seat on the back of the headrest, and
on the passenger side window and door frame. The State chemist
also testified that he identified what appeared to be an imprint
consistent with the sole of a sneaker on the quilt in which the
11
victim's body had been wrapped. He opined that the imprint
appeared to him to be consistent with the sole of the sneakers
Angier was wearing upon his arrest. The instep of Angier's left
sneaker also tested positive for trace evidence of blood.
Finally, the chemist testified regarding a purple jacket
that was obtained from the defendant's sister-in-law on the day
of his arrest and which Grace identified as the same one the
defendant was wearing during the killing. First, the chemist
testified that blood was detected on both cuff areas of the
jacket. Second, he testified that a hair was found in a pocket
of the jacket and that the hair was, in his opinion,
"consistent" with that of the victim. This physical evidence
served to tie the defendant to the scene of the killing and
could have corroborated Grace's claim that the defendant ripped
chains from the victim's neck and went through his pockets after
the beating.
However, not all of the evidence presented to the jury
corroborated Grace's testimony. Emil Petrla testified on behalf
of the defendant. Petrla had no plea arrangement with the
Commonwealth and his own trial for murder in the first degree
for the killing of the victim had not yet taken place.
Nonetheless, Petrla waived his right under the Fifth Amendment
to the United States Constitution to avoid self-incrimination
and testified that although he was present during the killing of
12
the victim, neither the defendant nor Angier was present, and
Grace was in fact the person who delivered the kicks that
ultimately crushed the victim's skull.4
Petrla's testimony comported with the timeline established
by the police investigation and other testimony, yet his version
of events was quite different from that presented by Grace.
Petrla testified that on the evening of March 6 the defendant
was babysitting his nephew, so Petrla borrowed the defendant's
car.5 From the evening of March 6 until the early morning of
March 7, Petrla and Grace were together. Petrla picked up Grace
at his apartment, and the two drove first to Mallet, where Grace
purchased cocaine; then to a liquor store; and then back to
Grace's apartment, where they remained for the evening.
Sometime between 5:30 and 6 A.M. on March 7, the two men
left Grace's apartment and drove toward the defendant's
apartment in order to return the car to the defendant before he
4
Petrla also submitted an affidavit in support of the
defendant's motion for a new trial in which he stated that,
"[t]o this day," he maintains that his trial testimony was "true
and accurate." After the defendant's trial, Petrla entered a
plea of guilty to a charge of murder in the second degree based
on his own involvement in the killing, and Petrla remains in
prison. He further stated in his affidavit, "I have nothing to
gain by making something up that is not true about [the
defendant's] involvement or lack of involvement in the killing."
5
Petrla testified that at the time of the killing, Petrla
had been staying with the defendant in the Sullivan apartment
and that the defendant had given Petrla the second set of keys
to his car, permitting Petrla to use the car whenever the
defendant did not need it himself.
13
needed it for work. As they drove toward the defendant's
apartment, Grace noticed the victim waiting by a taxicab stand.
Petrla testified that he did not know the victim, but that Grace
called him by name and invited him into the car. The three men
then reversed direction and returned to Grace's apartment, where
Grace asked the victim to provide him with cocaine. The victim
did so, and Grace went into his bathroom to use the cocaine.
Petrla testified that Grace then emerged from the bathroom
screaming at the victim about the poor quality of the cocaine.
The victim and Grace then began screaming at each other, and
punches were thrown, at which point Grace was knocked to the
ground. Petrla testified that in order to help Grace, he
grabbed a nearby belt, wrapped it around his hand, and punched
the victim in the head, which knocked him to the ground near the
stove. Petrla then kicked the victim a few times, at which
point Grace became so enraged that he began kicking and stomping
the victim's head repeatedly until Petrla stopped him. Petrla
testified that after the beating, Grace was the one who searched
the victim's pockets, taking cocaine, money, and the victim's
gold chains and watch, and that Grace and Petrla alone disposed
of the body using the defendant's car.
According to Petrla, after he and Grace left the body
behind the abandoned grocery store and proceeded to the car wash
where they cleaned the defendant's car, the two men returned to
14
the neighborhood of the Sullivan apartment where they
encountered the defendant and Angier outside on the street. The
four men then proceeded together into the Sullivan apartment,
and all four used cocaine in the defendant's bedroom. After
Grace botched an attempt to use cocaine intravenously, resulting
in blood spraying on the defendant's ceiling, the defendant
asked him to leave the apartment. According to Petrla, Grace
did not return to the Sullivan apartment that day. Petrla
testified that some days later, however, he accompanied Grace to
the apartment of a woman named Rosemary Squires-Clark to whom
Grace sold the victim's watch.
Certain evidence presented at trial also corroborated
Petrla's version of events. The defense presented the testimony
of both Rosemary Squires-Clark and her seventeen year old son,
John Squires, regarding the victim's watch. John Squires
testified that he knew Grace and that Grace approached him and
offered to sell him the watch, at which point Squires told Grace
that he was interested in purchasing it, but that Grace would
have to come back when his mother was home. Additionally,
Squires-Clark testified that she purchased the watch from Grace,
not Petrla, and that at the time she purchased it, Grace came
into her bedroom alone with the watch and stated to her, "Don't
tell anybody I got it off him, I don't want to hurt anybody's
feelings." Evidence was further presented that Squires-Clark
15
identified Grace as the person who sold her the watch in a
photographic array soon after she turned the watch over to the
police. Additionally, the jury heard evidence that two of
Grace's bloody fingerprints were found on the inside of the
passenger-side window of the defendant's car. This evidence
corroborated Petrla's testimony that he was driving the
defendant's car with Grace riding in the passenger seat, and it
undermines Grace's testimony that he rode in the rear of the car
on the driver's side.
Petrla's testimony also was undermined by certain evidence
presented at trial. The prosecution elicited from Petrla on
cross-examination that in the year between the killing and the
defendant's trial, Petrla and the defendant had been housed in
the same jail, on the same floor. Petrla testified that he and
the defendant ate their meals together and spent recreation time
together, and that since the trial had commenced he and the
defendant had spoken daily about its progress. Therefore, the
prosecution raised the inference that Petrla and the defendant
had concocted a plausible alternative version of events to
exculpate the defendant. However, no evidence was presented to
explain why Petrla would testify falsely on behalf of the
defendant only to admit to his own involvement in a brutal
robbery and killing. Additionally, Petrla admitted that he was
wearing dress shoes when the victim was killed. However, he
16
testified that Grace was wearing work boots, not sneakers.
Petrla also testified that Grace did not return to the Sullivan
apartment on the afternoon of March 7. However, Grace's
testimony was consistent with Kimberly Sullivan's regarding
seeing Kathy Sullivan in tears while washing dishes that
afternoon.
Ultimately, the parties each acknowledged that the case
came down to an evaluation of the credibility of the two key
witnesses: Grace and Petrla. In closing, defense counsel began
by seeking to undermine the strength of the evidence related to
the defendant's purple jacket, asking why, if the defendant were
truly the killer, there was not more blood on the jacket in
light of the amount of blood at the scene, and why the defendant
would not have disposed of the jacket between the time of the
killing on March 7 and his arrest on March 24. Further, defense
counsel sought to undermine the chemist's testimony that the
hair in the jacket pocket was consistent with the victim's by
describing numerous weaknesses in hair comparison methodology
and reminding the jury that the hair had not been compared to
any other people with whom the defendant had contact, such as
his sister or niece or girlfriend. Counsel used the remainder
of closing to emphasize the reasons that the jury should not
credit Grace's testimony and reminded the jury that unlike
17
Grace, Petrla had no plea arrangement and testified against his
own penal interest.
The prosecution, in contrast, spoke at length about the
reasons to believe Grace over Petrla. The prosecutor emphasized
that Grace had given consistent statements regarding the major
details of the crime from his first statement the day he was
arrested, to a letter he wrote approximately one month later
detailing the killings, and throughout his lengthy trial
testimony. The prosecutor also described Petrla's testimony as
a "chain of incredible coincidences." Further, the prosecution
repeatedly emphasized the consistency between Grace's version of
events and the physical evidence, including the blood on the
rear of the headrest and the door jambs of the defendant's car,
the bloody footprint on the quilt found with the victim's body
which appeared consistent with Angier's sneakers, and the blood
on the cuffs of the purple jacket and the hair found in the
pocket which the prosecution argued tied the defendant directly
to the crime.
Ultimately, the jury appear to have credited Grace's
testimony over Petrla's as they found the defendant guilty of
armed robbery and murder in the first degree.
2. Newly available evidence. In 2011, the defendant's
motion for scientific testing of the purple jacket was granted.
The jacket was analyzed once again by the State police crime
18
laboratory, and cuttings of the jacket cuffs as well as the hair
fragment were submitted to a private laboratory for scientific
analysis, including the comparison of deoxyribonucleic acid
(DNA) profiles.
The State police crime laboratory reported that it retested
the cuffs of the jacket and that the cuffs screened negative for
the presence of blood. The private laboratory also tested the
cuffs for the presence of blood, and it compared a DNA sample
from the victim with DNA found on the jacket. Like the State
police crime laboratory, the private laboratory found that the
cuffs screened negative for the presence of blood.
Additionally, although the substance on the cuffs contained a
mixture of two DNA profiles, the private laboratory excluded the
victim as the source of either profile. Moreover, the
laboratory reported that attempts to match the hair found in the
pocket to a sample of the victim's hair were "inconclusive" due
to a mixture of two or more DNA profiles on the hair fragment.
By comparison, at trial, the forensic chemist from the State
police crime laboratory testified that the cuffs of the jacket
tested positive for blood and that in his opinion the hair
fragment found in the pocket "was consistent with" that of the
victim.
On the basis of the new test results, the defendant filed a
motion for a new trial arguing that the test results cast real
19
doubt on the justice of the defendant's conviction in light of
the importance of the forensic evidence in a case such as this
where the jury were asked to assess the competing credibility of
two eyewitnesses. The judge granted the defendant's motion on
the basis that had these new test results been available at the
time of trial, they would likely have eliminated the purple
jacket as evidence linking the defendant to the crime, and the
defendant would have been able to argue that there was no
physical evidence tying him directly to the killing.
Consequently, in a case that came down to two competing
eyewitness accounts of the killing, the physical evidence
stemming from the purple jacket, which was the only physical
evidence tying the defendant to the scene, likely was a "real
factor" in the jury's deliberations such that its elimination
would cast real doubt on the justice of the defendant's
conviction.
3. Discussion. In a motion for a new trial based on new
evidence, the defendant must show that the evidence is either
"newly discovered" or "newly available"6 and that it "casts real
6
Newly discovered evidence is evidence that was unknown to
the defendant or counsel and not reasonably discoverable by them
at the time of trial. Commonwealth v. Grace, 397 Mass. 303, 306
(1986). Newly available evidence is evidence that was
unavailable at the time of trial for a reason such as a
witness's assertion of a privilege against testifying or, as
here, because a particular forensic testing methodology had not
yet been developed or gained acceptance by the courts. See,
e.g., Commonwealth v. Mathews, 450 Mass. 858, 870-871 (2008);
20
doubt" on the justice of the defendant's conviction." See
Commonwealth v. Cintron, 435 Mass. 509, 516 (2001); Commonwealth
v. Grace, 397 Mass. 303, 305 (1986). New evidence will cast
real doubt on the justice of the conviction if there is a
substantial risk that the jury would have reached a different
conclusion had the evidence been admitted at trial. Grace,
supra at 306. The standard is not whether the verdict would
have been different, but whether the evidence probably would
have been a "real factor" in the jury's deliberations. Id.Such fact-specific analysis requires a thorough knowledge
of trial proceedings. Id. Therefore, we afford special
deference to the rulings of a motion judge who was also the
trial judge. Id. at 307. Where, as here, the motion judge was
not the trial judge and the motion judge did not make
credibility determinations arising from an evidentiary hearing,
we consider ourselves in as good a position as the motion judge
to review the trial record. See Commonwealth v. Raymond, 450
Mass. 729, 733 (2008). See also Commonwealth v. LeFave, 430
Mass. 169, 176 (1999). Nevertheless, we review a judge's
decision on a defendant's motion for a new trial based on the
common-law claim of newly discovered evidence for a "significant
error of law or other abuse of discretion." Grace, supra at
Commonwealth v. Cintron, 435 Mass. 509, 518 (2001). "The
standard applied to a motion for a new trial based on newly
available evidence is the same as applied to one based on newly
discovered evidence." Cintron, supra at 516.
21
307. See Cintron, 435 Mass. at 517 ("In the absence of a
constitutional error, the granting of a motion for a new trial
on the ground of newly discovered evidence rests in the sound
discretion of the judge"). We will reverse a judge's ruling on
appeal only if the decision is "manifestly unjust."
Commonwealth v. Moore, 408 Mass. 117, 125 (1990).
Here, the Commonwealth does not dispute that the results of
the scientific analysis by the private laboratory constitute
"newly available evidence" in the requisite sense. Therefore,
we consider only whether the motion judge abused her discretion
in concluding that the test results cast real doubt on the
justice of the defendant's conviction. We conclude that she did
not.
The results of the reexamination of the purple jacket by
both the State crime laboratory and a private forensic
laboratory demonstrated first that the cuffs tested negative for
the presence of blood, and second that DNA on the cuffs
definitively was not that of the victim. Third, the
"inconclusive" results of the attempted DNA comparison between
the hair found in the jacket pocket and the victim's hair mean
that the hair cannot be identified as that of the victim.
The results of this new testing justify the grant of the
defendant's motion for a new trial for several reasons. First,
the results relate to the central issue in this case: whether
22
the defendant was present during the killing of the victim.
This is not like cases in which evidence, although new, was
relevant to only a tangential matter. See, e.g., Commonwealth
v. Staines, 441 Mass. 521, 531-534 (2004) (new evidence tending
to prove alleged third-party culprit had driven defendant's car
on one occasion did not warrant new trial where evidence did not
shed light on central question of who had placed cocaine behind
dashboard of defendant's car). Further, the purported blood on
the defendant's cuffs and the hair in defendant's pocket were
not merely cumulative of other physical evidence presented at
trial. They were different in kind because they served as the
sole pieces of physical evidence indicating the defendant had
been in the presence of the victim during the killing. See
Cintron, 435 Mass. at 518.
Additionally, the evidence presented against the defendant
at trial was not otherwise so compelling as to render this new
evidence unlikely to have been a real factor in the jury's
deliberations. Compare Raymond, 450 Mass. at 731, 734 (new
evidence that key prosecution witness may have had plea
agreement at time of testimony did not warrant new trial where
other evidence against defendant, including defendant's own
confession, was "overwhelming"). Here, the defendant presented
testimony of an eyewitness who not only described a very
different version of events but also testified against his own
23
penal interest, waiving his rights and implicating himself in a
murder and armed robbery. Additionally, the defense presented
the testimony of two witnesses who undermined a key aspect of
Grace's story -- that he had nothing to do with taking and
selling the victim's watch. Moreover, physical evidence also
tied Grace himself to the killings, including his bloody
fingerprint on the inside passenger side of the defendant's car,
and his own admission that he was wearing sneakers, which the
medical examiner opined were the sort of shoes that could have
delivered the severe blows to the right side of the victim's
skull.
Finally, the new evidence that neither the victim's blood
nor DNA was found on the cuffs of the defendant's jacket
justifies the grant of a new trial because it does more than
merely impeach the forensic chemist who testified for the
prosecution. Rather, the new evidence negates a key piece of
physical evidence that the prosecution relied on in arguing that
the jury should credit Grace's testimony. Had the evidence from
the private laboratory been available at the time of Grace's
trial, it would not merely have served to cast doubt on the
reliability of the methods used to test other surfaces for the
presence of blood. It effectively would have eliminated a key
piece of physical evidence linking the defendant to the killing.
Therefore, this new evidence is more than mere impeachment
24
evidence, which, alone, is usually insufficient to warrant a new
trial. See Commonwealth v. Sleeper, 435 Mass. 581, 607 (2002).
We acknowledge, as did the motion judge, that much of the
evidence the Commonwealth presented against the defendant
remains, and that the Commonwealth may have been able to carry
its burden to prove beyond a reasonable doubt that the defendant
committed murder in the first degree even without the evidence
of the purple jacket. However, our inquiry is not whether the
verdict may have been different, but whether the evidence in
question probably served as a real factor in the jury's
deliberations. Grace, 397 Mass. at 306. In light of this, we
cannot ignore the fact that but for the purple jacket, the jury
would not have been presented with any physical evidence
connecting the defendant's person to the crime scene or the
victim's blood. Without the purple jacket, the defendant could
have argued at closing that not one piece of physical evidence
linked the defendant directly to the killing of the victim.
Combined with the testimony of defense witnesses, this fact may
have been sufficient to raise a reasonable doubt in the minds of
the jury. At the very least, the evidence was probably a real
factor in the jury's deliberations because it was one of the
pieces of physical evidence that the prosecution pointed to more
than once in closing as a basis on which to credit Grace's
testimony over that of Petrla.
25
Therefore, we conclude that the motion judge did not abuse
her discretion in ruling that physical evidence arising from the
purple jacket served as a "real factor" in the jury's
deliberations such that the new test results cast real doubt on
the justice of the defendant's conviction. The judgment
granting the defendant's motion for a new trial is affirmed.
So ordered.