Supreme Judicial Court of Massachusetts, Middlesex
Heard: November 8, 2016.
found and returned in the Superior Court Department on June
motion for a new trial, filed on October 19, 2012, was heard
by Kathe M. Tuttman, J. The Supreme Judicial Court granted an
application for direct appellate review.
Jessica Langsam, Assistant District Attorney (Thomas F.
0'Reilly, Assistant District Attorney, also present) for
M. Kavanaugh, Committee for Public Counsel Services (Andrea
Petersen also present) for the defendant.
Chris Fabricant, Karen Newirth, James C. Dugan, Vincent P.
Iannece, Lara S. Kasten, & Kathryn J. Ranieri, of New
York, Stephanie Roberts Hartung, & Sharon L. Beckman, for
New England Innocence Project and others, amici curiae,
submitted a brief.
Present: Gants, C.J., Botsford, Hines, Gaziano, Lowy, &
Budd, JJ. 
defendant, Victor Rosario, was convicted in 1983 of one count
of arson in a dwelling house and eight counts of murder in
the second degree; all the charges stem from a fire that
occurred in 1982. In 2012, the defendant filed the motion for
a new trial at issue here, arguing principally that newly
discovered evidence regarding fire science and the conditions
under which he confessed to the crime warranted a new trial.
Following an evidentiary hearing, a Superior Court judge who
was not the trial judge allowed the motion, ruling that the
defendant had presented newly discovered evidence, which cast
real doubt on the justice of his convictions. The
Commonwealth appealed. We allowed the defendant's
application for direct appellate review, and we affirm the
order allowing the defendant's motion for a new trial,
but on different grounds.
Evidence presented at trial.
summarize relevant evidence introduced at trial. The fire
started on the first floor of a multi-unit apartment building
in Lowell, and was accompanied by the sound of breaking
glass. The first telephone call to 911 was placed shortly
after 1 A.M. on March 5, 1982. Police officers arrived,
minutes later, to find the building "fully engulfed in
flames." It took firefighters approximately one hour to
get the fire under control. They recovered eight bodies from
the building, all victims of the fire.
of the rapid escalation of the fire and the associated
deaths, the arson unit was called to the scene. Investigators
found that the heaviest burning and charring was concentrated
in the front, right, and left sides of the exterior and
first-floor interior of the building. Based on the burn
patterns in the front hallway, living room, and kitchen,
investigators believed that the fire had been concentrated
along the floor and baseboards. Although no wicks or
flammable liquids were detected in the apartment, the
investigators believed that the burn marks were consistent
with flammable liquids with points of origin being the front
hall and kitchen. Thus, they concluded that the fire was not
accidental and could have been started by multiple incendiary
devices, such as "Molotov cocktails."
were several witnesses to the fire. One witness had seen
three men standing in front of the building minutes before
the fire; he said that he heard the sound of breaking glass
and then saw a man with his arm raised. A woman who lived
across the street stated that the defendant used drugs at her
apartment that night and that she saw him breaking windows
after she learned of the fire. Red Cross workers treated the
defendant for a cut on his hand at the scene and sent him to
evidence led investigators to the defendant, who was
interrogated by Lowell police officers at the fire department
headquarters during the night of March 6 and into March 7.
The defendant, whose first language was Spanish, was provided
with a civilian interpreter. Although the defendant appeared
calm and responsive when he arrived at approximately 11
£.M., soon after that he indicated that he was
beginning to hear voices, and his mental state deteriorated
over the course of the night. A few hours into the
interrogation, after the defendant had made two statements
about the fire, one of the officers told the defendant that
they had "certain information" and wanted "to
know if he was part of it." The defendant broke down,
sobbing and praying on the floor. The breakdown lasted ten to
twenty minutes, but the defendant later appeared to recover.
questioning resulted in three statements prepared by the
police interrogators and signed by the defendant. In the
first, signed at approximately 12:15 A.M., the defendant
admitted to being at the scene of the fire and stated he
broke a window to help rescue children from the building.
Hours later, he signed a second statement, admitting to being
at the scene as a "look out" for two other men, one
of whom threw a Molotov cocktail through a window in the
building. Finally, toward the end of the questioning, the
defendant signed a final statement indicating that he and the
other two men threw Molotov cocktails into the building,
starting the fire. The statement also said that before they
had left for a bar that evening, he watched the two other men
make three Molotov cocktails in the basement of his
house; they planned to start the fire because one
of the men "wanted to get [one of the victims] over
drugs." At approximately 6:30 A.M., the defendant was
arrested after signing the final statement.
his booking, the defendant descended into total incoherence.
He repeatedly said that he was "the son of God, "
believed that the back of his head had been cut off, and did
not recognize his girl friend when she came to visit him. He
eventually was transferred to the house of correction in
Billerica for a psychiatric examination. State psychiatrists
there and at Bridgewater State Hospital (hospital) diagnosed
the defendant as psychotic. He was treated at the hospital
and eventually recovered. His symptoms never recurred, and
the defendant was deemed competent to stand trial.
defense theory of the case at trial was that the defendant
was at the scene of the fire because he and his friends were
walking home from a bar and stopped by a house close to the
fire to purchase drugs. The defendant, who testified, told
the jury that he hurt his hand when he broke a window in his
attempt to rescue children from the flames. Both in a motion
to suppress and at trial, the defense relied on the diagnosis
of psychosis to argue that the defendant's statements
during the interrogation were involuntary. The defendant
testified that he did not remember making any of the
statements attributed to him and that he had never heard of a
Molotov cocktail before the interrogation. As the
voluntariness of his confession was at issue throughout the
trial, the trial judge instructed the jury on the humane
practice rule. During their deliberations, the jury
requested, but were not provided, transcripts of the
doctors' testimony, and the doctors' reports were not
admitted into evidence. The jury convicted the defendant of
arson and eight counts of murder in the second degree.
The motion for new trial.
2012, the defendant filed his motion for a new trial, citing
newly discovered evidence. The motion judge conducted an
evidentiary hearing over the course of six days in 2014. She