Argued: October 9, 2014.
Indictments found and returned in the Superior Court Department on August 6, 1993.
Following review by this court, 425 Mass. 279, 680 N.E.2d 924 (1997), motions for a new trial, filed on February 4 and March 24, 2008, were considered by Thomas E. Connolly, J.
Requests for leave to appeal were allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk.
David J. Apfel ( Nicholas K. Mitrokostas & Joshua M. Daniels with him) for Michael Cowels.
Philip G. Cormier for Michael Mims.
Helle Sachse, Assistant District Attorney ( Janis DiLoreto Smith with her) for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[24 N.E.3d 1037] Lenk,
The defendants, Michael Cowels and Michael Mims,
were convicted by a Superior Court jury in December, 1994, of murder in the
first degree in the stabbing death of Belinda Miscioscia. Among the evidence
presented against them at trial were two " bloody" towels. The Commonwealth
mony suggesting that the defendants had used the towels to clean themselves after stabbing the victim. Testing performed on the towels at the time of the trial indicated the presence of human blood. The testing, however, was inconclusive. Further testing was performed on just one of the towels; the sample on the other was too small to be tested. An expert testified that the further testing neither identified nor excluded the defendants or the victim as the sources of the blood. In June, 1997, this court affirmed the defendants' convictions. See Commonwealth v. Cowels, 425 Mass. 279, 285-293, 680 N.E.2d 924 (1997).
In 2008, the defendants filed separate motions for a new trial, based in part on deoxyribonucleic acid (DNA) testing performed on the previously tested towel by an independent laboratory after their convictions. That testing revealed that the blood contained on the towel did not belong to either of the defendants or the victim, but instead to an unidentified male. The defendants also argued in their motions that they had been deprived of the effective assistance of counsel.
After a nonevidentiary hearing, the motion judge, who was also the trial judge, denied the motions. In 2011, each defendant filed a " gatekeeper" petition before a single justice of the county court, pursuant to G. L. c. 278, § 33E, seeking leave to appeal from the denial of his motion for a new trial. In January, 2014, the single justice allowed both petitions, and the matters were entered in this court the following month.
We conclude that, given the towels' role as one of the few pieces of physical evidence that corroborated the testimony of a key prosecution witness whose credibility was sharply challenged, the towels likely were a real factor in the jury's deliberations. Consequently, we believe that there is a substantial risk that, had the newly available DNA testing been available at the time of the trial and resulted in the inadmissibility of the towels in the Commonwealth's case, the outcome of the trial would have been different. The defendants, therefore, must receive a new trial.
a. Evidence at trial.
Miscioscia's body was found in a yard behind an
industrial building in Chelsea on the morning of Monday, June 28, 1993. An
autopsy revealed that she had been stabbed six times. The fatal stab wound
perforated her heart. She also had been slashed several times, and suffered
numerous bruises and defensive wounds. Her body and clothing
were " blood soaked." A pair of eyeglasses was found a few feet from the body, and a bag of marijuana was stuffed inside her bra.
The police investigation quickly turned towards the defendants, as they were among the last people to have seen the victim alive on the preceding Saturday night. The trial presented the jury with [24 N.E.3d 1038] two conflicting timelines of the defendants' activities on that night.
The Commonwealth presented -- largely through the testimony of Robert Salie, a friend of Cowels and Mims -- the following timeline. On the night of Saturday, June 26, 1993, the victim was in her brother's apartment in Chelsea with her brother, her brother's girl friend, and Peter Rowe, whom the victim was dating. The victim and Rowe had plans to go to the Wonderland Ballroom that evening. According to the witnesses present in the apartment, the victim left by herself shortly before 9 p.m. to purchase marijuana for the group from Cowels. She had come to know Cowels while attending a course that she was required to take in conjunction with a conviction of operating a motor vehicle while under the influence of alcohol.
The victim met Cowels a few blocks away from the apartment, where Cowels was attending a party along with his friend, Mims. After purchasing the marijuana, the victim did not return to the apartment. Instead, Salie testified, Cowels, Mims, and the victim arrived at Salie's home, located approximately one and one-half miles from the location of the party, at approximately 9:30 p.m. There the four smoked a marijuana cigarette, and Salie witnessed the victim and the defendants prepare to have sex in his bedroom. Salie was invited to participate, but declined. The defendants and the victim then emerged from Salie's bedroom and left his apartment shortly afterwards.
Salie testified that the defendants returned to his apartment, unaccompanied by the victim, at approximately 11:30 p.m. After he allowed them to enter, they immediately went to his bathroom. They remained in the bathroom for approximately twenty minutes, during which time he could hear the water running in the sink. When the defendants emerged from the bathroom, Cowels was in his underwear and carrying a plastic bag containing the clothes he had been wearing that evening. Heading towards Salie's bedroom, Cowels asked Salie if he could borrow some clothes. Cowels also held out a sneaker that he had been wearing, on which Salie saw a spot that he believed to be blood. " [I]f you fuck with me," Cowels told Salie, " this is what happens." Cowels
remarked that Salie would read in the newspapers the following day about " [h]ow we killed her," adding, " she was a fucking pig and she got what she deserved." He told Salie that " if [he] said anything [he]'d get hurt."
Salie gave clothes to both defendants. After dressing, Mims told Salie to " keep [his] mouth shut," and Cowels put a finger to Salie's head and reiterated that if Salie said anything, he would " get fucking hurt." The defendants left carrying bags of their clothing.
The defendants returned at approximately 1 a.m., without their bags, and again told Salie that he had " better keep [his] mouth shut." Cowels departed, while Mims spent the night on a couch in Salie's apartment. On his way out, Cowels gave Salie a ride to the store to purchase a pack of cigarettes.
Although Salie's testimony was crucial to the Commonwealth's case, his credibility was extensively impeached during cross-examination. In his first two interviews with police, Salie had not offered the account that he ultimately offered at trial. Instead, he indicated that the defendants had come to his apartment only once on the evening of the victim's death, when Mims arrived to sleep over, and that the victim was never present in his apartment. Salie offered the narrative to which he later testified at trial after he learned that he could be charged as an accessory after the fact for providing the [24 N.E.3d 1039] defendants with clothing. Salie also entered into a cooperation agreement with the Commonwealth under which he avoided a mandatory term of incarceration for several unrelated motor vehicle offenses, for which Cowels had been called to serve as a prosecution witness against Salie. Salie had a long criminal history, including numerous drug-related offenses, and admitted to being a recovering heroin addict. Finally, the defense challenged the ...