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Commonwealth v. Drayton

Supreme Judicial Court of Massachusetts, Suffolk

May 9, 2018

COMMONWEALTH
v.
KENJI DRAYTON.

          Heard: February 8, 2018.

         Indictments found and returned in the Superior Court Department on December 11, 2001.

         Following review by this court, 473 Mass. 23 (2015), a motion for a new trial was heard by Mitchell H. Kaplan, J.

          Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

          Cathryn A. Neaves for the defendant.

          Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

          KAFKER, J.

         A Superior Court jury convicted the defendant of murder in the first degree for the killing of Michael Greene and of unlawful possession of a firearm. The Commonwealth's case against the defendant at trial largely depended on the testimony of a single percipient witness, James Jackson. Approximately eighteen months after the convictions, another individual, Debra Bell, came forward and stated in an affidavit that Jackson could not have witnessed the shooting because she was in the bathroom with Jackson at the time that it occurred.[1]The affiant died shortly after providing the affidavit. The defendant moved for a new trial on the basis that this affidavit was newly discovered evidence, but the trial judge denied the motion.

         In Commonwealth v. Drayton, 473 Mass. 23 (2015) (Drayton I), we rejected the defendant's claims of error at trial and declined to grant the defendant relief under G. L. c. 278, § 33E. We did, however, remand the case for an evidentiary hearing on the defendant's motion for a new trial to determine whether "Debra's affidavit falls within a narrow, constitutionally based exception to the hearsay rule, which applies where otherwise inadmissible hearsay is critical to the defense and bears persuasive guarantees of trustworthiness." Drayton I, supra at 25. On remand, a different judge determined that Debra's affidavit fell within the exception and granted the defendant's motion for a new trial. The Commonwealth appealed.

          We discern no error or abuse of discretion by the motion judge in allowing the defendant's motion for a new trial. In so concluding, we give deference to the motion judge's credibility findings and conduct our own independent review of the documentary evidence and constitutional issues. The affidavit is admissible because it would have been critical to the defense and it bears "persuasive assurances of trustworthiness." Drayton I, 473 Mass. at 36, quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Furthermore, the affidavit is newly discovered evidence and casts real doubt on the justice of the defendant's convictions. We therefore affirm the decision of the motion judge granting the defendant's motion for a new trial.

         1. Background.

         Drayton I presented the facts underlying the defendant's convictions. See Drayton I, 473 Mass. at 25-29. We focus here on the specific facts relevant to the issues in this appeal.

         a. The shooting.

         The Commonwealth's evidence against the defendant centered on the testimony of Jackson, the man who lived in the apartment where Greene was killed. Drayton I, 473 Mass. at 26. Jackson testified that he let Greene use his apartment to sell drugs in exchange for money and free drugs. Id. at 25. Jackson had a similar arrangement in the same apartment with the defendant and his codefendant, Levino Williams.[2] Id. One week before the shooting, Jackson told Greene that he could no longer use the apartment to sell drugs. Id.

         On the day of the shooting, the defendant and Williams were in the apartment with Jackson, drinking and rolling "oolies, " which are "cigarettes laced with cocaine and 'reefer.'" Id. Debra and her sister, Betty Jo Bell, were also at the apartment during the day, although Jackson testified that both Debra and Betty Jo left at some point prior to the shooting.[3]

         Jackson testified that, at some point, he let Greene into the apartment. According to Jackson's testimony, when he let Greene into the apartment, it was just Greene, the defendant, Williams, and Jackson still in the apartment, with the defendant in the living room with Jackson and Williams seated nearby at the kitchen table. Jackson then told Greene that he did not want Greene to sell drugs in the apartment anymore, which upset Greene. Id. According to Jackson, Greene then made a cellular telephone call during which he threatened to "kill 'em all" and burn down the apartment. Id. After Greene made this threatening telephone call, Jackson left the living room to go to the bathroom. Id. Jackson heard a gunshot as he was preparing to leave the bathroom. Id. He walked out and saw the defendant shoot Greene five additional times. Id. at 25-26.

         The Commonwealth offered very little physical evidence beyond Jackson's testimony that linked the defendant to the shooting: the Commonwealth never located the firearm used to shoot Greene, and the only physical evidence that linked the defendant to the apartment were a beer bottle that contained a latent finger print matching the defendant's right middle finger joint and a cellular telephone linked to a person known to both the defendant and Williams.[4] Id. at 27.

         Furthermore, as we noted in Drayton I, "[t]he problems with Jackson's credibility were legion." Id. at 26. Jackson was a heavy drinker and used drugs, including "crack" cocaine, extensively throughout his life and in the days leading up to the shooting. Id. His testimony at trial contradicted some of his earlier statements, including his 911 call and his grand jury testimony. Id. For example, in his 911 call, Jackson stated that an unknown assailant pushed through the door and shot Greene. Id. Jackson also testified during his grand jury testimony that Williams was standing behind the defendant as the defendant shot Greene but testified at trial that he did not see Williams when he saw the defendant shoot Greene. Id. Defense counsel attempted to impeach him with many of these inconsistencies. Id. Jackson even stated during his testimony that parts of his previous statements were either untrue or mistaken. Id. Despite these limitations and the "other inconsistencies and seeming obfuscations" in Jackson's testimony, the defendant was convicted of murder in the first degree for the shooting of Greene based largely on Jackson's testimony. Id.

         b. Postconvict ...


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