Heard: February 8, 2018.
found and returned in the Superior Court Department on
December 11, 2001.
review by this court, 473 Mass. 23 (2015), a motion for a new
trial was heard by Mitchell H. Kaplan, J.
K. Anderson, Assistant District Attorney, for the
Cathryn A. Neaves for the defendant.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker,
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.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.
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.
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
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
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. Id. One week before the shooting,
Jackson told Greene that he could no longer use the apartment
to sell drugs. Id.
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.
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.
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. Id. at 27.
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