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SJC-10667

COMMONWEALTH vs. KENJI DRAYTON.

Suffolk. February 8, 2018. - May 9, 2018.

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

Homicide. Firearms. Evidence, Hearsay, Declaration of deceased 

person. Practice, Criminal, Capital case, New trial, 

Affidavit.

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.

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. 
2

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.

 

1 Because Debra Bell shares a last name with her sister who 

is also discussed, Betty Jo Bell, we refer to both by their 

first names.
3

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 
4

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 

 

2 Levino Williams, the codefendant at trial, was acquitted.

3 According to James Jackson's testimony, there may have 

been several other people in the apartment throughout the day. 

Jackson testified that two tall white males, one named Mark and 

another whose name is unknown, were in the apartment during the 

day. Statements made to the police also place a woman named 

Sandra in the apartment at various times.
5

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 

 

4 The police traced the cellular telephone to an address in 

the Dorchester section of Boston and a woman named Tamika Ivy. 

The parties stipulated at trial that both the defendant and 

Williams knew Ivy.
6

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. Postconviction affidavits. In October, 2006, eighteen 

months after the convictions, Debra contacted attorney Bernard 

Grossberg, the defendant's trial counsel. Drayton I, 473 Mass. 

at 24. In a signed affidavit dated October 17, 2006, Debra 

stated that she was diagnosed with metastatic cancer and was 

undergoing chemotherapy. She stated that "[b]ecause of the 

uncertainty of [her] medical condition," she did not want the 

fact that she did not disclose what she knew about the shooting 

of Greene on her conscience and decided to come forward. She 

also stated that her initial statement to police on September

27, 2001, was "not completely truthful," that she only said 

those things "in order to get out of there as quickly as 
7

possible," and that "[t]he officers asked [her] questions, to 

which [she] agreed in order to be able to leave."5

In the affidavit, Debra described the afternoon of the 

shooting very differently from what was presented by Jackson's 

testimony. She stated that she arrived at the apartment that 

morning at approximately 11 A.M. but left after an argument with 

Jackson. She stated that she then returned to the apartment "a 

little after 3:00 P.M." and that "there were a number of people 

in the apartment," including Jackson, Greene, a black woman 

named Sandra, an unknown white male, and a black male named Joe. 

According to the affidavit, Debra then brought Jackson into the 

bathroom, where they "were smoking crack cocaine and engaged in 

sexual acts."6 At some point, Debra heard "a series of noises"

and asked Jackson "if he heard the noises and he said he was not 

sure of what or if he heard anything." After she waited a few 

 

5 In her initial statement, Debra told the police that she 

left the apartment before the shooting and did not mention 

anything about being in the bathroom with Jackson. In her 

affidavit, Debra stated that at the time of her original 

statement to police she was "afraid of the officers," she "did 

not want to get involved in the case," and "the officers told 

[her] that they would take care of arrest warrants that were 

pending against [her] in different courts."

6 In the affidavit, Debra stated that she had known Jackson 

"for about three years" and that she "had an off and on intimate 

relationship" with him. In her statement to police on September 

27, 2001, Debra described her relationship with Jackson as "like 

a brother/sister friendship, concerned about no other guy." At 

trial, Jackson testified on cross-examination that he had not 

been involved in a relationship with Debra.
8

minutes, Debra "opened the bathroom door and briefly peeked out 

the door." She saw a person's legs on the floor and "screamed 

to Jackson to look out the door." Jackson replied, "'[h]ell 

with it' or words to that effect," and slammed the door, saying 

that "he did not care about what was going on." After a short 

time, Debra opened the door and fled the apartment. Her 

affidavit concluded with the statement that "there was 

absolutely no way that either [Jackson] or I . . . could have 

seen who shot Michael Greene or who was in the apartment at that 

time."

Grossberg obtained several additional affidavits, including 

one from Betty Jo. In her affidavit, Betty Jo stated that she 

arrived at the apartment on the day of the shooting at 

approximately 11 A.M. and left approximately one hour later, 

returning at some point in the afternoon to find the building 

sealed off by the police.7 She stated that while she was there,

the only other people in the apartment were "Jackson, Sandra, 

Mike, Joe, and Debra." Betty Jo then stated that, "[e]very now 

and then after the shooting on September 20, 2001, [her] sister, 

Debra Bell[,] would tell [her] about what had occurred in the 

apartment" and "would say that she and . . . Jackson were in the 

 

7 Betty Jo died in February, 2016, which was after the 

release of our decision in Drayton I but prior to the 

evidentiary hearing. See Commonwealth v. Drayton, 473 Mass. 23 

(2015) (Drayton I) (decided October 1, 2015).
9

bathroom getting high on crack cocaine and engaging in sexual 

activity when the shooting occurred." Betty Jo also stated that 

Debra "would tell [Betty Jo] this more often as she became more 

ill" and that "she wanted the truth to be known" and to "clear 

her conscience." According to the affidavit, just before she 

died, Debra made Betty Jo promise that Betty Jo would "take care 

of her children and that [Betty Jo] would make the truth known 

about the shooting in . . . Jackson's apartment."

The other two affidavits were from a man identified as 

Joseph Anderson. In his first affidavit, dated May 15, 2007, 

Anderson stated that he went to the apartment on the day of the 

shooting to purchase crack cocaine from Jackson for a friend. 

Anderson stated that Jackson handed him a small packet of crack 

cocaine and that as Anderson turned to leave, he "saw . . . 

Jackson going into the bathroom with a black woman, who was 

known to [him] as Debra Bell." In a second affidavit, dated 

July 5, 2007, Anderson added that as he was leaving the 

apartment, he passed two men arguing in the hallway. He then 

stated that "[b]efore [he] got to the corner, [he] heard what 

sounded like gun shots coming from the area of the apartment."

c. Procedural history. While his direct appeal was 

pending, the defendant filed a motion for a new trial in 

December, 2006, alleging that Debra's affidavit was newly 
10

discovered evidence that warranted a new trial.8 Following a 

nonevidentiary hearing, the trial judge denied the motion in 

November, 2007. Although the judge stated that she had 

considered holding an evidentiary hearing, she decided not to do 

so because the evidence was inadmissible and impeachment 

evidence alone is ordinarily insufficient to obtain a new trial.

She accordingly denied the motion on these grounds. 

Specifically, the judge concluded that the affidavit was 

inadmissible because it did not meet the requirements of the 

dying declaration exception. Because the judge determined that 

the affidavit was inadmissible, she did not reach the other 

issues raised by the defendant's motion for a new trial. The 

defendant filed a second motion for a new trial in April, 2012,

this time alleging ineffective assistance of counsel due to the 

failure to engage a sleep deprivation or drug use expert and a 

violation of his right to a public trial because of the 

exclusion of the defendant's mother and friend. The judge 

denied this motion in August, 2012.

This court then heard the defendant's consolidated appeal 

from the convictions of murder in the first degree and unlawful 

possession of a firearm, and from the denial of the defendant's 

 

8 Debra died on December 19, 2006, a week after the 

defendant filed his first motion for a new trial. The defendant 

later filed the affidavits of Betty Jo and Anderson in support 

of the first motion for a new trial.
11

motions for a new trial. See Drayton I, 473 Mass. at 24-25. We 

rejected the claims of error at trial that the defendant 

asserted, both on direct appeal and in his second motion for a 

new trial, and declined to grant the defendant relief under G. L. 

c. 278, § 33E. Id. With regard to the defendant's first motion 

for a new trial based on newly discovered evidence, however, we 

concluded that, under the unusual circumstances of this case, 

there was a substantial issue 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. Id. at 40. We therefore remanded the matter 

for an evidentiary hearing on that issue. See id. at 25.

On remand, a different judge in the Superior Court

conducted the evidentiary hearing.9 At the hearing, the only 

witness who testified was Grossberg. Grossberg testified that 

he tried to locate Debra prior to trial and hired an 

investigator to find her but was unsuccessful. Grossberg then 

testified that Debra contacted him "out of the blue" in October, 

2006. When she came to his office, she "looked very sickly and 

was wearing a scarf to cover her head." She told Grossberg that 

she knew she was dying. A few months later, Betty Jo contacted 

 

9 The case was heard by a different judge on remand because 

the original trial judge had retired.
12

Grossberg and informed him that Debra had died. Betty Jo spoke 

with Grossberg at his office and signed her affidavit. Anderson 

also met with Grossberg at his office and signed his two 

affidavits.10

The motion judge concluded that Debra's affidavit was 

admissible because it met the test articulated by this court in 

Drayton I, 473 Mass. at 36. Specifically, the judge found that

Debra was motivated to come forward by "her certain impending 

death and her desire to clear her conscience" and that "no 

evidence of any other motivating circumstance was presented." 

The Commonwealth did not produce "any evidence that Debra had 

any prior relationship to the defendant . . . that might have 

motivated her actions." The judge also found that the other 

affidavits "provide[d] credible corroboration for Debra's 

statements, further demonstrating the statements'

trustworthiness." The judge credited Grossberg's testimony on 

the circumstances surrounding the affidavits from Betty Jo and 

Anderson, finding that "the affidavits, particularly Betty Jo's, 

[were] properly viewed as credible." In concluding that Debra's

affidavit was trustworthy, the judge noted that there was "no 

 

10 The motion judge noted that it was not clear how Joseph

Anderson had come to attorney Bernard Grossberg's attention but 

credited Grossberg's testimony regarding the statements in the 

affidavits. Grossberg testified that he did not know about 

Anderson until Debra mentioned him in her affidavit.
13

evidence calling into question the authenticity of these

affidavits or the veracity of their content." The judge also 

concluded that the affidavit was newly discovered evidence as 

Debra was unavailable and, given Betty Jo's prior statements,

Grossberg had no reasonable expectation that she had any 

exculpatory information. As the affidavits were newly 

discovered and cast real doubt on the justice of the defendant's 

convictions, the judge therefore granted the defendant's motion 

for a new trial.

2. Discussion. Where the Commonwealth appeals from the 

grant of a defendant's motion for a new trial, we consider 

whether the judge committed a significant error of law or abuse 

of discretion in allowing the defendant's motion. Commonwealth

v. Kolenevic, 471 Mass. 664, 672 (2015), S.C., 478 Mass. 189 

(2017). The issue is whether the judge's decision resulted from 

"a clear error of judgment in weighing the factors relevant to 

the decision . . . such that the decision falls outside the 

range of reasonable alternatives" (quotation and citation 

omitted). Id., quoting L.L. v. Commonwealth, 470 Mass. 169, 185 

n.27 (2014). "When, as here, the motion judge did not preside 

at trial, we defer to that judge's assessment of the credibility 

of witnesses at the hearing on the new trial motion, but we 

regard ourselves in as good a position as the motion judge to 

assess the trial record." Commonwealth v. Cousin, 478 Mass. 
14

608, 615 (2018), quoting Commonwealth v. Grace, 397 Mass. 303, 

307 (1986). "We review de novo any findings of the motion judge 

that were based entirely on the documentary evidence," which, in 

this case, includes the affidavits. Commonwealth v. Thomas, 469 

Mass. 531, 539 (2014). "We accept other findings that were 

based on testimony at the evidentiary hearing and do not disturb 

them where they are not clearly erroneous." Id. "However, we 

'make an independent determination as to the correctness of the 

judge's application of constitutional principles to the facts as 

found.'" Id., quoting Commonwealth v. Tremblay, 460 Mass. 199, 

205 (2011).

In Drayton I, this court held that Debra's affidavit may be 

admissible if it meets the two-part test set forth in Chambers, 

410 U.S. at 302.11 Drayton I, 473 Mass. at 36. In Drayton I, we

also held that the first part of that test, whether the 

affidavit would have been critical to the defense, was clearly 

satisfied in this case. Id. We left undecided three distinct 

issues to be addressed at the evidentiary hearing on remand. 

First, the motion judge was to determine whether the affidavit 

met the second part of the test for admissibility, which 

examines whether the affidavit bears "persuasive assurances of 

 

11 The Commonwealth argues that we should overturn our 

decision in Drayton I insofar as it recognizes a 

constitutionally based exception to the hearsay rule. For the 

reasons stated in Drayton I, we decline to do so.
15

trustworthiness." See id., quoting Chambers, supra. Second, if 

the affidavit were determined to be admissible, the motion judge 

then had to determine whether the affidavit was properly viewed 

as newly discovered evidence. Drayton I, supra at 38-39. 

Third, the judge had to determine whether the affidavit casts 

real doubt on the justice of the defendant's convictions. Id. 

We address each of these issues in turn.

a. Whether the affidavit bears persuasive assurances of 

trustworthiness. Because the affidavit "plainly would have been 

critical to the defense," we held in Drayton I that the 

admissibility of the affidavit depended on whether it bears 

"persuasive assurances of trustworthiness." Drayton I, 473

Mass. at 36, quoting Chambers, 410 U.S. at 302. We also 

highlighted several elements that seemed to support the 

affidavit's trustworthiness. See Drayton I, supra at 36-38. 

Following the evidentiary hearing, the motion judge found that 

the affidavit does bear persuasive assurances of trustworthiness

because of Debra's impending death, the absence of any other 

motive, and the corroboration that exists for the affidavit.

The motion judge found that Debra's statements were 

"motivated by her certain impending death and her desire to 

clear her conscience in the brief time remaining to her." In 

Drayton I, we drew parallels between the reliability of Debra's 

statements, in light of her impending death, and the reliability 
16

of statements that fall within the dying declaration exception. 

Id. at 37 ("while Debra's affidavit fails to satisfy the 

technical requirements for the dying declaration hearsay 

exception, it appears to fall within the rationale for that 

exception"). The motion judge found that "[t]he facts revealed 

by the evidentiary hearing" supported this conclusion because 

Debra appeared sickly and emotional and died soon after signing 

the affidavit. The motion judge also credited Grossberg's 

testimony about Debra's health and demeanor at the time that she 

signed the affidavit.

The motion judge also found no evidence of any motivation 

for Debra coming forward other than her desire to clear her 

conscience. See Drayton I, 470 Mass. at 37 (absence of motive 

to lie "tend[s] to support the trustworthiness of Debra's 

statement"). Betty Jo stated in her affidavit that "just 

before" Debra died, Debra told Betty Jo "that she wanted the 

truth to be known about the shooting in . . . Jackson's 

apartment." The motion judge was further persuaded by the fact 

that Debra contacted Grossberg unprompted and "out of the blue." 

Grossberg testified that he searched for Debra both before and 

after the trial but was unsuccessful. The motion judge also 

observed that there is no evidence of any connection between 

Debra and the defendant that would have motivated her to come 
17

forward and lie on his behalf.12 We highlighted the absence of a 

motive for Debra as potentially persuasive in Drayton I and 

something that could be brought out at the evidentiary hearing. 

See id. at 37 & 38 n.6. After both sides were given the 

opportunity to develop the record at the hearing, the motion 

judge ultimately found that "no evidence of any other motivating 

circumstance was presented."

Another element that the motion judge found persuasive was 

the corroboration that exists for Debra's statements. In 

Chambers, the United States Supreme Court found it persuasive 

that the statements at issue in that case were "corroborated by 

some other evidence in the case." Chambers, 410 U.S. at 300-

301. Here, as the motion judge correctly observed, Debra's 

affidavit is corroborated by Betty Jo's affidavit and Anderson's 

 

12 We also note that the judge concluded that the statements 

Debra gave to Grossberg, rather than those given to the police, 

are more likely to be true. As Debra explained in her 

affidavit, Debra had various reasons to lie in her initial 

statement to the police. The affidavit stated that she was 

"afraid" and that she "did not want to get involved in the 

case." She also stated that the officers "kept coming to [her] 

home and harassed [her] children and family until [she] agreed 

to meet with [them]" and that they "told [her] that they would 

take care of arrest warrants pending against [her]." Thus, 

while Debra had ample motivation to lie in her original 

statement to the police, there is no evidence of any motivation 

to lie in her affidavit. We discern no error in the judge's 

analysis.
18

affidavits. The motion judge found each of these affidavits to 

be credible, particularly the affidavit of Betty Jo.13

We discern no error in the judge's analysis or 

determination that Debra's affidavit bears "persuasive 

assurances of trustworthiness." Our own analysis confirms his 

findings. We reiterate that this exception is very narrow and 

will be applicable "only in the rarest of cases." Drayton I, 

473 Mass. at 40. This case, however, is one in which the 

application of this constitutional exception is appropriate.

b. Whether the affidavit constitutes newly discovered 

evidence. "Where the defendant moves for a new trial on the 

basis of newly discovered evidence, the defendant 'must 

establish both that the evidence is newly discovered and that it 

casts real doubt on the justice of the conviction,' which 

entails a showing that it "'probably would have been a real 

factor in the jury's deliberations.'" Drayton I, 473 Mass. at 

31, quoting Grace, 397 Mass. at 305–306. Although "[t]he 

inquiry into whether the defendant has satisfied the new trial 

standard is conceptually distinct from the threshold inquiry 

 

13 Neither Betty Jo nor Anderson testified at the hearing. 

Betty Jo died prior to the hearing, and Anderson could not be 

located. The motion judge, however, credited Grossberg's 

testimony concerning the circumstances that prompted Betty Jo 

and Anderson to provide their affidavits. Our analysis of the 

documentary evidence is consistent with the judge's analysis, 

and we defer to his finding on credibility regarding Grossberg.
19

into whether Debra's affidavit is admissible [evidence], . . . 

many of the same considerations that inform a judge's assessment 

of the affidavit's trustworthiness may well also inform the 

judge's assessment whether it casts real doubt on the justice of 

the conviction." Drayton I, supra at 39.

"To establish that evidence is 'newly discovered,' the 

defendant must show that the evidence was 'unknown to the 

defendant or his counsel and not reasonably discoverable by them 

at the time of trial." Drayton I, 473 Mass. at 39, quoting 

Grace, 397 Mass. at 306. The motion judge correctly concluded 

that the statements in Debra's affidavit were newly discovered 

evidence.

It is undisputed that Debra was unavailable at the time of 

trial. Additionally, the motion judge found that, even if Betty 

Jo were called as a witness at trial, Grossberg had no reason to 

believe that she had any exculpatory information contradicting 

Jackson's testimony until after the defendant's convictions. In 

support of this, the judge pointed to her testimony at the 

suppression hearing one month before the trial, in which she 

merely repeated the story she told police and refused to speak 

with Grossberg. At trial, her attendance had to be secured by a 

capias. Given Betty Jo's uncooperativeness and her prior 

testimony, there was no reason to believe that had she been 

called as a witness at trial, she would have revealed any of the 
20

information contained in Debra's affidavit. The motion judge 

properly found that, even if she knew of Debra's statements at 

the time of trial, Betty Jo's consistently uncooperative 

behavior prior to trial strongly suggests that she would not 

have revealed these statements if the defense called her to 

testify. Again, we discern no error in the judge's analysis.

c. Whether the affidavit casts real doubt on the justice 

of the convictions. A new trial is warranted "[w]here we 

determine that newly discovered evidence likely would have 

functioned as a real factor in the jury's deliberations." 

Commonwealth v. Cowels, 470 Mass. 607, 623 (2015). In 

determining whether the newly discovered evidence would have 

been a real factor in the jury's deliberations, we focus on 

"what effect the omission might have had on the jury" rather 

than on whether the verdict would have been different. Id., 

quoting Commonwealth v. Tucceri, 412 Mass. 401, 411 (1992). 

"The over-all strength or weakness of the evidence presented 

against a defendant is significant . . . because it provides the 

context within which to assess whether the newly discovered 

evidence would have been a real factor in the jury's 

deliberations." Cowels, supra.

While "[n]ewly discovered evidence that tends merely to 

impeach the credibility of a witness will not ordinarily be the 

basis of a new trial," Commonwealth v. Toney, 385 Mass. 575, 581 
21

(1982), a new trial may be warranted where, as here, the 

Commonwealth's case depends on the testimony of a single witness 

and the newly discovered evidence contradicts that testimony. 

See Cowels, 470 Mass. at 621.14

The motion judge found that Debra's affidavit has precisely 

that effect in this case. We agree. The Commonwealth's case 

against the defendant depended on the testimony of Jackson, a 

witness with extensive credibility issues. The motion judge 

properly recognized that, beyond Jackson's testimony, there was 

no evidence that pointed to the defendant as the person who 

killed Greene. The statements in Debra's affidavit do more than 

just impeach Jackson's testimony; they undermine the 

 

14 In Commonwealth v. Cowels, 470 Mass. 607 (2015), the 

defendants were convicted of murder in the first degree in the 

stabbing death of the victim. The Commonwealth's main witness 

testified to a timeline that placed the defendants at the 

witness's apartment at various points throughout the night, 

first with the victim and then later without her. Id. at 609-

610. The witness testified that when the defendants returned 

without the victim they borrowed some clothes and made various 

threatening statements indicating that they had killed the 

victim. Id. The only physical evidence linking the defendants 

to the witness's home were two towels with bloodstains, one of 

which was too small to be tested. Id. at 610-611. After the 

defendants were convicted, deoxyribonucleic acid (DNA) testing 

revealed that the blood on the towel did not belong to either of 

the defendants or the victim. Id. at 614. The defendants 

sought a new trial on the basis of this and other newly 

discovered evidence, but the trial judge denied the motion. Id.

at 614-615. On appeal, we concluded that a new trial was 

warranted because the DNA testing negated key pieces of evidence 

that likely were a real factor in the jury's deliberations. Id. 

at 623-624.
22

Commonwealth's entire case against the defendant. Therefore, 

the statements are more than just mere impeachment evidence and 

are a sufficient basis for a new trial.

The motion judge accordingly concluded that Debra's 

affidavit likely would have been a "significant factor" in the 

jury's deliberations in this case. We also agree with this 

determination. The Commonwealth's over-all case against the 

defendant was dependent on Jackson's testimony, which Debra 

directly contradicted. There was also little evidence to 

corroborate Jackson's testimony. The motion judge therefore 

properly concluded that Debra's affidavit cast real doubt on the 

justice of the convictions.

3. Conclusion. For these reasons, we hold that the motion 

judge did not abuse his discretion in concluding that the 

affidavit is admissible and newly discovered evidence that casts 

real doubt on the justice of the defendant's convictions and

that, therefore, the defendant is entitled to a new trial. The 

judgments of conviction are vacated and set aside, and the 

matter is remanded to the Superior Court for a new trial.

So ordered.