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SJC-10667

COMMONWEALTH vs. KENJI DRAYTON.

Suffolk. April 10, 2015. - October 1, 2015.

Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ.

Homicide. Firearms. Evidence, Expert opinion, Fingerprints, 

Hearsay, Declaration of deceased person. Constitutional 

Law, Right to hearing. Witness, Expert. Practice, 

Criminal, Capital case, New trial, Hearsay, Assistance of 

counsel.

Indictments found and returned in the Superior Court 

Department on December 11, 2001.

The cases were tried before Regina L. Quinlan, J., and 

motions for a new trial, filed on December 12, 2006, and April 

2, 2012, were heard by her.

Cathryn A. Neaves for the defendant.

Teresa K. Anderson, Assistant District Attorney, for the 

Commonwealth.

LENK, J. The defendant was convicted of murder in the 

first degree for a shooting that took place in an alleged 

territorial conflict over the control of a "crack house," an 

apartment used to sell "crack" cocaine. The bulk of the 
2

evidence at trial against the defendant and his codefendant at 

trial, Levino Williams, who was acquitted, derived from the 

testimony of a single witness, James Jackson. Jackson was a 

crack addict and alcoholic who lived in the apartment, allowed 

others to sell drugs there in exchange for free drugs, and 

claimed to have witnessed the defendant shoot the victim, 

Michael Greene. Approximately one and one-half years after the 

defendant’s conviction, another individual, Debra Bell,1 came 

forward. Explaining that she had been diagnosed with metastatic 

cancer and did not want her failure to disclose what she knew 

about the shooting on her conscience, Debra claimed in an 

affidavit that she was with Jackson using drugs and having sex 

in the bathroom of the apartment at the time the shooting took 

place, and that as a result Jackson could not have seen the 

shooting.

Based on Debra's affidavit, the defendant moved for a new 

trial on the ground of newly discovered evidence. Defense 

counsel also moved to take a videotaped deposition to preserve 

Debra's testimony. Debra died, however, one week after the 

motion was filed, and before the judge acted on it. The motion 

judge, who was also the trial judge, concluded that Debra's 

affidavit was inadmissible hearsay, and denied the motion for a 

 

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

Betty Jo Bell, who is also relevant to this case, we refer to 

both by their first names.
3

new trial. The defendant later submitted a second motion for a 

new trial, which the judge also denied. In that motion, the 

defendant argued that trial counsel acted ineffectively in 

failing to call an expert witness regarding the effects of drug 

and alcohol use or sleep deprivation on Jackson's testimony, and 

that he was deprived of his right to a public trial due to the 

unobjected-to exclusion of his mother and friend from the court 

room during the jury empanelment process.

The case comes to this court on a 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 

motions for a new trial. We reject the claims of error at trial 

that the defendant asserts, both on direct appeal and in his 

second motion for a new trial,2 and decline to grant the 

defendant relief under G. L. c. 278, § 33E. However, with 

regard to the defendant's first motion for a new trial, based on 

newly discovered evidence, we conclude that, under the unusual 

circumstances of this case, there is 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 

 

2 The defendant does not assert before this court the 

arguments that he made in his second motion for a new trial, but 

we review them pursuant to our obligations under G. L. c. 278, 

§ 33E.
4

persuasive guarantees of trustworthiness. We therefore remand 

for an evidentiary hearing on that issue.3

1. Background. a. Evidence at trial. The Commonwealth 

offered evidence at trial that supported the following theory of 

the crime. Since 1993, Jackson had leased an apartment in 

Boston. Several months before the shooting, Jackson became 

acquainted with Greene, who was a crack dealer. In exchange for 

money and free drugs, Jackson authorized Greene to sell crack 

cocaine out of the apartment, and permitted other individuals to 

use crack cocaine in the apartment.

In the weeks leading up to the shooting, Jackson and Greene 

had entered into a dispute, due to Greene's increasingly violent 

behavior and his efforts to exert control over the apartment. 

At the same time, Jackson entered into an arrangement with the 

defendant, and with his codefendant, Williams, similar to his 

arrangement with Greene: Jackson permitted them to sell drugs 

from the apartment, and in exchange received from them free 

drugs and financial support. One week before the shooting, 

Jackson informed Greene that he no longer wanted him selling 

drugs in the apartment.

On the day of the shooting, September 20, 2001, the 

defendant and Williams were in the apartment, rolling "oolies" -

 

3 We recognize that the trial judge is now retired and that 

such a hearing must be conducted by a different judge.
5

- cigarettes laced with cocaine and "reefer" -- and drinking. 

Greene appeared, and Jackson again informed him that he was no 

longer permitting him to sell drugs in the apartment. Greene 

became enraged. He made a call from a cellular telephone, and 

threatened to "kill 'em all" and burn down the apartment. While 

Greene was on the telephone, Jackson went into the bathroom. As 

Jackson was preparing to leave the bathroom, he heard a gunshot. 

When he emerged from the bathroom and entered the living room, 

he observed the defendant fire five additional shots at Greene. 

The defendant shot the victim using a gun that Jackson had 

observed in the defendant's waistband several days previously.

At trial, Jackson was the sole percipient witness to the 

shooting; he was also the sole source of evidence regarding the 

conflict among the defendant, Williams, and Greene that 

allegedly motivated the shooting. The problems with Jackson's 

credibility were legion. He indicated that he had begun 

drinking alcohol at age seven, began using cocaine at age 

twenty-eight, and had been using crack cocaine for nearly a 

decade prior to the shooting. He acknowledged that he had been 

smoking crack and drinking alcohol on the day of the shooting, 

and had been awake nearly continuously in the days leading up to 

the shooting. He explained his belief that that his drug and 

alcohol use would not have affected his ability to perceive the 

shooting by noting that, because he had been using drugs and 
6

alcohol "24-7 . . . over a period of years," he was "immune" to 

the effects of them.

Jackson's testimony at trial contradicted his initial 

statement to police during an emergency 911 call, in which he 

indicated that an unknown assailant had pushed through the 

apartment door and shot Greene. His testimony at trial also 

partly contradicted prior testimony before the grand jury. 

Jackson told the grand jury that he saw Williams standing close 

behind the defendant as the defendant fired at Greene. At 

trial, however, Jackson asserted that this testimony was untrue,

and that he had not seen Williams when the defendant shot 

Greene.

Jackson's testimony was replete with other inconsistencies 

and seeming obfuscations. For instance, Jackson insisted that 

his earlier statement to police officers that he "had a pint of 

Hennessy" on the day of the shooting did not mean that he drank 

a pint of Hennessy cognac on that day, but merely that he 

possessed a pint of Hennessy, of which he drank some. 

Confronted with the apparent conflict between his grand jury 

testimony that he "never slept" on the day before the shooting 

and his trial testimony that he "took a nap" the night before 

the shooting, Jackson insisted that he did not "call taking a 

nap sleeping," but merely "resting [his] eyes." Similarly, 

while Jackson provided the times for various events to police 
7

officers in an initial interview on the day of the shooting, he 

asserted at trial that "all those times were just a guess time," 

explaining that he "didn't keep up with no time" because he "had 

no place to go" and "didn't have to worry about the time." 

Jackson acknowledged near the end of his testimony that he "made 

a whole lot of mistakes in [his] testimony."

Despite the severe challenges to Jackson's credibility, the 

Commonwealth offered little additional evidence to corroborate 

his account. The Commonwealth never located the firearm used in 

the shooting. The physical evidence offered at trial linking 

the defendant to the apartment was limited to a beer bottle, 

which a prosecution expert testified contained a latent 

fingerprint that matched the defendant's right middle finger 

joint, and a cellular telephone, which was traced to a person 

known to both the defendant and Williams. Several items of 

physical evidence, including the telephone and crack cocaine 

seized from the apartment, were lost while in police custody 

before the trial.

b. Postconviction proceedings. A Superior Court jury 

convicted the defendant of murder in the first degree, on 

theories of both deliberate premeditation and extreme atrocity 

or cruelty, in April, 2005. The defendant also was convicted of 

unlawful possession of a firearm. Williams, who was tried with 

the defendant as a joint venturer, was acquitted of the same 
8

offenses.

On December 12, 2006, while the defendant's appeal of his 

convictions was still pending, the defendant filed his first 

motion for a new trial based on newly discovered evidence, in 

the form of Debra's affidavit. Debra had given a statement to 

police shortly after the shooting, but she had otherwise avoided 

speaking to attorneys and others investigating the crime. In 

her affidavit, she claimed that her statement to police was "not 

completely truthful" because she "was afraid of the officers, 

. . . did not want to get involved in the case," and had been 

told that "the officers . . . would take care of arrest warrants 

that were pending against [her] in different courts." She 

apparently made herself unavailable to testify at a motion to 

suppress hearing that occurred shortly before trial, and at 

trial itself.

Whereas Jackson testified at trial that he was in the 

bathroom by himself when the first shot was fired, and emerged 

from the bathroom to witness the defendant fire several 

additional shots at the victim, Debra asserted in her affidavit 

that she was in the bathroom with Jackson at the time of the 

shooting, and that Jackson remained in the bathroom for the 

entirety of the shooting. Debra said that, after hearing noises 

from outside the bathroom, she waited a few minutes before 

opening the door and "briefly peek[ing] out," at which point she 
9

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

Jackson to look out the door," to which he "replied the 'Hell 

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

stating that "he did not care about what was going on." Debra 

concluded that "there was absolutely no way that either he or 

[she] could have seen who shot . . . Greene or who was in the

apartment at that time."

After Debra's death in December, 2006, defense counsel 

submitted additional support for his first motion for a new 

trial, in the form of affidavits from two additional witnesses. 

One affidavit came from Betty Jo, Debra's sister. Like Debra, 

Betty Jo also gave a statement to police shortly after the 

shooting, although she too claimed that she was "not truthful" 

because she "was afraid of the officers" and they had offered to 

"'clear' about three warrants that were pending for [her] 

arrest" if she cooperated with them. Betty Jo also testified at 

a hearing on the defendants' pretrial motions to suppress, her 

name appeared on the Commonwealth's witness list for trial, and 

she was available to testify during the trial. Shortly before 

the trial, however, she indicated that she refused to speak to 

defense counsel, and neither party called her at trial.

In her affidavit, Betty Jo indicated that "[e]very now and 

then after the shooting on September 20, 2001, . . . Debra . . . 

would tell [her] about what had occurred in the apartment . . . 
10

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

bathroom getting high on crack cocaine and engaging in sexual 

activity when the shooting occurred." Betty Jo also claimed 

that Jackson had admitted to her, nearly five years after the 

shooting, that he and Debra were in the bathroom "doing their 

thing" and that he "did not know what was going on" at the time 

of the shooting. Betty Jo stated that she had accompanied Debra 

to her interview with police after the shooting, and both had 

been independently interviewed by officers investigating the 

crime. She asserted that, during the interview, police officers 

sought to prompt her to identify certain photographs even though 

she did not recognize them.

Defense counsel also submitted two affidavits from an 

individual named Joseph Anderson, which further support Debra's 

account of the events leading up to the shooting. Anderson 

indicated that he went to Jackson's apartment on September 20, 

2001, to purchase crack cocaine for a friend. He stated that, 

after he made the purchase from Jackson, he "saw . . . Jackson 

going into the bathroom with a black woman, who was known to 

[him] as Debra." Anderson observed "two black males and one 

black female sitting . . . in the parlor" when he purchased the 

crack cocaine; upon leaving, he also "saw a black male, who was 

standing in the hallway in the apartment arguing with a light 

skinned male, who appeared to be Puerto Rican." Finally, 
11

Anderson indicated that, "[a]bout three or four days after the 

shooting," he encountered Jackson at a liquor store. The two 

conversed, and Jackson allegedly said that he did not "know 

anything about" the shooting and did not "give a fuck about it."

In November, 2007, the motion judge, who was also the trial 

judge, denied the defendant's first motion for a new trial in a 

brief opinion. The judge explained that she initially 

considered holding an evidentiary hearing, but concluded based 

on her review of the affidavits that an evidentiary hearing was 

not necessary. The judge explained that, were Debra alive, "her 

testimony . . . would tend to impeach the testimony of Jackson 

[and] would not be sufficient to warrant a new trial." The 

judge further observed that Debra's alleged statements would not 

be admissible as a "dying declaration" because they did not 

concern the cause or the circumstances of her own death. 

Although the defendant argued that his constitutional rights 

under the Sixth and Fourteenth Amendments to the United States 

Constitution and art. 12 of the Massachusetts Declaration of 

Rights required the admissibility of the affidavit regardless 

whether it constituted a dying declaration under State 

evidentiary law, the judge's decision did not address that 

argument.

The defendant filed a second motion for a new trial in 

April, 2012. There he asserted an ineffective assistance of 
12

counsel claim, based on trial counsel's failure to offer expert 

testimony regarding the impact of sleep deprivation on 

perception and memory to impeach Jackson's testimony, and a 

claim for a violation of the right to a public trial, based on 

the alleged exclusion of a family member and a friend from the 

jury empanelment process. After an evidentiary hearing, the 

judge denied the defendant's second motion for a new trial.

2. Discussion. The defendant raises three specific issues 

on appeal; in addition, he urges the court to grant him relief 

pursuant to its general superintendence power under G. L. 

c. 278, § 33E. The first issue relates to the conduct of the 

trial itself: the defendant contends that the trial judge 

improperly admitted certain testimony of the Commonwealth's 

fingerprint expert. We reject that argument, as well as the two 

arguments that the defendant asserted in his second motion for a 

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

c. 278, § 33E. The second issue relates to the judge's denial 

of the defendant's motion for a new trial based on newly 

discovered evidence. We conclude that the defendant's motion 

raised a substantial issue, and therefore remand for an 

evidentiary hearing. The third issue relates to defense 

counsel's posttrial conduct with respect to the defendant's 

motion for a new trial: the defendant argues that defense 

counsel did not act sufficiently quickly to move for a 
13

videotaped deposition of Debra, thus depriving the defendant of 

effective assistance of counsel. In light of our remand for an 

evidentiary hearing on the defendant's motion for a new trial 

based on newly discovered evidence, we decline to reach that 

issue.

a. Issues on direct appeal. The Commonwealth's expert 

testified that she "individualized or identified" a latent 

fingerprint found on a beer bottle at the crime scene to 

defendant's "right middle finger joint." The defendant contends 

that the admission of this testimony was in error. Because 

trial counsel did not object, we review to determine "whether 

there was error, and if so, whether it created a substantial 

likelihood of a miscarriage of justice." Commonwealth v. Perez, 

460 Mass. 683, 689-690 (2011).

We have "concluded that the underlying theory and process 

of latent fingerprint identification . . . are sufficiently 

reliable to admit expert opinion testimony regarding the 

matching of a latent impression with a full fingerprint"

(citation and quotation omitted). Commonwealth v. Wadlington, 

467 Mass. 192, 204 (2014). We have "warned," however, "that 

testimony to the effect that a print matches, or is 

'individualized' to, a known print should be presented as an 

opinion, not a fact, and opinions expressing absolute certainty 

about, or the infallibility of, an 'individualization' of a 
14

print should be avoided" (citation, quotation, and alterations 

omitted). Id. Here, on direct examination, the expert 

testified that the print was "individualized or identified" with 

the defendant's print, but did not describe that 

individualization as an absolute certainty. On crossexamination the expert did indicate that she was "positive that 

[she] identified" the defendant's print. Because this testimony 

occurred on cross-examination, however, and because there was no 

motion to strike, we identify no error in the testimony, much 

less an error sufficient to create a substantial likelihood of a 

miscarriage of justice. See id. at 205.

b. Relief under G. L. c. 278, § 33E. Pursuant to our 

obligations under G. L. c. 278, § 33E, we have reviewed the 

entire record and considered the issues raised in the 

defendant's second motion for a new trial. We agree with the 

motion judge's determination that, because the effects of 

Jackson's alcohol and drug use and sleep deprivation on his 

capacity to perceive and recall events were thoroughly developed 

through cross-examination, calling an expert on those issues 

would not have accomplished something meaningful for the 

defense. We also conclude that the motion judge properly 

determined that the defendant had not borne his burden of 

demonstrating that the court room was closed during any portion 

of the jury selection, because the defendant offered no evidence 
15

indicating that the court room was closed by any specific order 

or that court officers ever told anyone to leave. We identify 

no basis to exercise our authority pursuant to G. L. c. 278,

§ 33E, either to reduce the verdict of murder in the first 

degree or to order a new trial.

c. Motion for a new trial on the basis of newly discovered 

evidence. Under Mass. R. Crim. P. 30 (b), as appearing in 435 

Mass. 1501 (2001), a trial judge "may grant a new trial at any 

time if it appears that justice may not have been done." 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." Commonwealth v. Grace, 397 Mass. 303, 305-306 

(1986). The defendant "also bears the burden of demonstrating 

that any newly discovered evidence is admissible." Commonwealth

v. Weichell, 446 Mass. 785, 799 (2006).

In adjudicating a motion for a new trial, the "judge may 

rule on the issue or issues presented by such motion on the 

basis of the facts alleged in the affidavits without further 

hearing if no substantial issue is raised by the motion or 

affidavits." Mass. R. Crim. P. 30 (c), as appearing in 435 

Mass. 1501 (2001). "When a substantial issue has been raised, 
16

and supported by a substantial evidentiary showing," however, 

"the judge should hold an evidentiary hearing" (citation and 

quotation omitted). Commonwealth v. Muniur M., 467 Mass. 1010, 

1011 (2014). See also Reporters' Notes to Rule 30, Mass. Ann. 

Laws Court Rules, Rules of Criminal Procedure, at 1709 

(LexisNexis 2014-2015) ("Where a substantial issue is 

raised, . . . the better practice is to conduct an evidentiary 

hearing"). We generally review a judge's decision on a motion 

for a new trial under an abuse of discretion standard. 

Commonwealth v. Muniur M., supra at 1012. Where the defendant's 

motion for a new trial raises an issue "of constitutional 

dimension," however, "we are not bound by an abuse of discretion 

standard, but rather examine the issue independently." 

Commonwealth v. Conkey, 443 Mass. 60, 66-67, (2004), S.C., 452 

Mass. 1022 (2008). Because we conclude that the defendant's 

first motion for a new trial raises a sufficiently substantial 

issue whether Debra's affidavit falls within a narrow, 

constitutionally based exception to the hearsay rule, we remand 

for an evidentiary hearing.

The judge's decision to deny the defendant's first motion 

for a new trial without holding an evidentiary hearing appears 

to have rested in large part on the judge's determination that 

Debra's affidavit was not admissible as a dying declaration. 

That determination, as the defendant concedes, was correct. 
17

Under the "dying declaration" exception to the hearsay rule, "a 

statement made by a declarant-victim" is admissible in a 

prosecution for homicide, provided that the statement was made 

"under the belief of imminent death," that the declarant "died 

shortly after making the statement," and that the statement 

"concern[ed] the cause or circumstances of what the declarant 

believed to be her own impending death." Commonwealth v. 

Nesbitt, 452 Mass. 236, 251-252 (2008). Because Debra's 

statement in her affidavit did not concern the cause or 

circumstances of her impending death, her statement is not 

admissible under the traditional hearsay exception for dying 

declarations.

The defendant also correctly concedes that this court has 

not yet recognized, as a matter of evidentiary law, any other 

hearsay exception that would encompass Debra's affidavit. For 

instance, the Federal rules of evidence include a "residual" 

exception, which allows the admission of hearsay evidence that 

is not admissible under any other exception where the court 

determines that (a) "the statement has equivalent guarantees of 

trustworthiness"; (b) "the statement is offered as evidence of a 

material fact"; (c) the statement "is more probative on the 

point for which it is offered than any other evidence that the 

proponent can obtain through reasonable efforts"; and (d) "the 

purposes of [the] rules [of evidence] and the interests of 
18

justice" will best be served by the admission of the statement 

into evidence. Fed. R. Evid. 807. Thirty-one States have 

adopted some form of a "residual" or "catchall" exception to the 

hearsay rule, often patterned on the Federal rule.4 On several 

occasions, however, this court has declined to recognize an 

"'innominate' or residual exception to the hearsay rule"

(citation and quotation omitted) akin to the Federal residual 

exception. Commonwealth v. Pope, 397 Mass. 275, 281-282 (1986). 

See Commonwealth v. Semedo, 422 Mass. 716, 728 (1996); 

Commonwealth v. Costello, 411 Mass. 371, 377 (1991); 

Commonwealth v. Meech, 380 Mass. 490, 496-497 (1980); 

Commonwealth v. White, 370 Mass. 703, 713 (1976); M.S. Brodin & 

M. Avery, Handbook of Massachusetts Evidence § 8.25 (8th ed. 

2007).

In nearly all of those States that, like Massachusetts, 

have not adopted a broader residual hearsay exception akin to 

 

4 See Alaska R. Evid. 804(b)(5); Ariz. R. Evid. 807; Ark. R. 

Evid. 804(b)(5); Colo. R. Evid. 807; Conn. Code Evid. 8-9; Del. 

R. Evid. 807; Ga. Code Ann. § 24-8-807 (LexisNexis 2015); Haw. 

Rev. Stat. § 626-1, Rule 804; Idaho R. Evid. 804; Iowa Code Ann. 

§ 5.807 (West 2014); La. Code Evid. art. 804(b)(6); Md. Rule 5-

803(b)(24); Mich. R. Evid. 804(b)(7); Minn. R. Evid. 807; Miss. 

R. Evid. 804(b)(5); Mont. R. Evid. 804(b)(5); Neb. Rev. Stat. 

§ 27-804(2)(e); Nev. Rev. Stat. § 51.315; N.H. R. Evid. 

804(b)(6); N.M. R. Evid. 11-807(A); N.C. Gen. Stat. 8C-1, 

804(b)(5); N.D. R. Evid. 807(a); Okla. Stat. tit. 12, § 2804.1; 

Or. Rev. Stat. § 40.465(3)(h); R.I. R. Evid. 804(b)(5); S.D. 

Codified Laws § 19-19-807; Utah R. Evid. 807(a); W. Va. R. Evid. 

807(a); Wis. Stat. § 908.045(6); Wyo. R. Evid. 804(b)(6). See 

also Robinson v. Commonwealth, 258 Va. 3, 10 (1999).
19

the Federal rule, courts and commentators have acknowledged the 

existence of a far narrower, constitutionally based hearsay 

exception, rooted in the United States Supreme Court's decision 

in Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (Chambers).5 

 

5 See Ex parte Griffin, 790 So. 2d 351, 355 (Ala. 2000) 

("[W]e follow the United States Supreme Court's holding in 

Chambers and hold that [the defendant's] constitutional rights 

supersede the hearsay rule in the Alabama Rules of Evidence"); 

People v. Blair, 25 Cal. 3d 640, 665 (1979) (en banc) 

(acknowledging that, under Chambers, court may "not elevate a 

fastidious adherence to the technicalities of the law of 

evidence over the right to a fair trial"); Marek v. State, 14 

So. 3d 985, 995 (Fla. 2009) (acknowledging that, in some 

circumstances, Chambers requires admission of otherwise 

inadmissible hearsay, but "only where the [statement] sought to 

be admitted bears indicia of reliability"); People v. Tenney, 

205 Ill. 2d 411, 434 (2002) (concluding, based on Chambers, 

that, "where hearsay testimony bears persuasive assurances of 

trustworthiness and is critical to the accused's defense, its 

exclusion deprives the defendant of a fair trial in accord with 

due process"); Thomas v. State, 580 N.E.2d 224, 227 (Ind. 1991) 

(altering State evidentiary law to bring it into compliance with 

Chambers); State v. Hills, 264 Kan. 437, 445 (1998) ("Kansas 

courts have . . . disallowed the mechanical application of 

evidentiary rules where the failure to do so would result in the 

State not receiving a fair trial"); Crawley v. Commonwealth, 568 

S.W.2d 927, 931 (Ky. 1978) (adopting a broader exception for 

statements against interest to bring State evidentiary law into 

compliance with constitutional requirements articulated in 

Chambers); State v. Webb, 424 So. 2d 233, 238-240 (La. 1982) 

(reversing conviction of murder after determining that trial 

judge's restriction on defense counsel's cross-examination of 

police detective regarding alleged third party's confession 

"represent[ed] error of constitutionally significant 

proportions"); McLaughlin v. State, 378 S.W.3d 328, 346 (Mo. 

2012) ("The United States Supreme Court case of Chambers . . . 

set forth the constitutionally based exception to the rule 

against the admission of hearsay during the guilt phase of 

trial, which this Court applies"); State v. Bunyan, 154 N.J. 

261, 265, 266 (1998) (concluding that, while "New Jersey has 

declined to adopt a residual exception" akin to Federal residual 

hearsay exception, "constitutional provisions, such as the 
20

There the defendant sought to defend against a prosecution for 

murder by introducing a third party's subsequently repudiated 

confession to the crime. Id. at 289-290. The defendant's 

efforts were largely thwarted by the combination of the State’s 

hearsay rule and its "party witness" or "voucher" rule, which 

prohibited the defense from calling the third party and then 

 

compulsory process clause of the Sixth Amendment [to the United 

States Constitution], may require admission of evidence even 

though the evidence would be inadmissible according to State 

rules of evidence"); People v. Stultz, 2 N.Y.3d 277, 286 (2004) 

("grand jury testimony of an unavailable witness . . . must be 

admitted when it is material, exculpatory and has sufficient 

indicia of reliability"); People v. Robinson, 89 N.Y.2d 648, 650 

(1997) (concluding that, although not authorized by statute, 

defendant's "constitutional right to due process" requires 

admission of grand jury testimony where declarant is unavailable 

and hearsay testimony at issue "is material, exculpatory and has 

sufficient indicia of reliability"); State v. Sumlin, 69 Ohio 

St. 3d 105, 110 (1994) (after determining that trial court did 

not abuse its discretion in declining to allow statements into 

evidence under State evidentiary law, "consider[ing] whether 

fundamental principles of due process required the trial court 

to admit the statements"); Commonwealth v. Lewis, 472 Pa. 235, 

240-241 (1977) (observing that conclusion that statements at 

issue "were undoubtedly hearsay . . . does not end our 

consideration of this issue," before analyzing admissibility of 

statements under Chambers); Advisory Commission Comment to Tenn. 

R. Evid. 804 (observing that, while "[t]here is no residual 

exception even where declarants are unavailable[,] 

[o]ccasionally . . . constitutional considerations require that 

a tribunal permit the accused in a criminal case to introduce 

trustworthy hearsay not falling within a traditional 

exception"). See also Inwinkelried, The Constitutionalization 

of Hearsay: The Extent to Which the Fifth and Sixth Amendments 

Permit or Require the Liberalization of the Hearsay Rules, 76 

Minn. L. Rev. 521, 547 (1992) ("To successfully invoke the 

constitutional right to present evidence, the accused must 

persuade the judge that the testimony in question is crucial to 

the defense").
21

challenging his repudiation of his confession on crossexamination. Id. at 294. The United States Supreme Court 

concluded that the application of State evidentiary rules may 

produce results that conflict with the defendant's rights under 

the compulsory process clause of the Sixth Amendment or the due 

process clause of the Fourteenth Amendment. Id. at 302. The 

Court observed that, "[a]lthough perhaps no rule of evidence has 

been more respected or more frequently applied in jury trials 

than that applicable to the exclusion of hearsay, exceptions 

tailored to allow the introduction of evidence which in fact is 

likely to be trustworthy have long existed." Id. Because the 

sworn confession at issue in the case "bore persuasive 

assurances of trustworthiness" and "also was critical to [the 

defendant's] defense," the Court concluded that "the hearsay 

rule may not be applied mechanistically to defeat the ends of 

justice." Id. See Green v. Georgia, 442 U.S. 95, 97 (1979) 

(constitutionally impermissible for State to apply hearsay rule 

to bar third-party confession where confession was "highly 

relevant to a critical issue in the punishment phase of the 

trial" and "substantial reasons existed to assume its 

reliability").

This court has already recognized a constitutionally based 

hearsay exception in one context. Because the right to defend 

against criminal charges by presenting third-party culprit 
22

evidence "is of a constitutional dimension," we have held that a 

defendant may offer otherwise inadmissible hearsay evidence to 

support the assertion that a third party is the true culprit, 

provided certain conditions are met. Commonwealth v. SilvaSantiago, 453 Mass. 782, 801, 804 n.26 (2009). The defendant 

must establish that the hearsay statement is "otherwise 

relevant, will not tend to prejudice or confuse the jury," 

displays "substantial connecting links to the crime," has "a 

rational tendency to prove the issue the defense raises," and is

not "too remote or speculative" (citations and quotations 

omitted). Id. at 804. See Commonwealth v. Morgan, 449 Mass. 

343, 355-357 (2007); Mass. G. Evid. § 1105 (2015).

To be sure, Debra's affidavit does not constitute thirdparty culprit evidence. The United States Supreme Court's 

decision in Chambers, however, was not expressly limited to 

third-party culprit evidence. The Supreme Court and other 

courts have applied the principle articulated in Chambers to 

cases that did not involve the exclusion of third-party culprit 

evidence. See Crane v. Kentucky, 476 U.S. 683, 690-691 (1986) 

(holding that trial court violated principle articulated in 

Chambers when it barred defendant from introducing evidence to 

challenge voluntariness of his confession); State v. Bunyan, 154 

N.J. 261, 265, 269-272 (1998) (applying Chambers principle to 

affidavit from purported eyewitness asserting that defendant did 
23

not commit crime of which he was convicted).

We identify no persuasive reasons for confining our 

recognition of a constitutionally based hearsay exception to the 

context of third-party culprit evidence. Third-party culprit 

evidence challenges the prosecution's case in a way that, while 

potentially powerful, is ultimately indirect: it seeks to 

create reasonable doubt as to the defendant's guilt by 

suggesting that another person in fact committed the crime. An 

affidavit that directly contradicts the testimony of the sole 

purported eyewitness to a crime likewise undermines the 

prosecution's case in a way that is indirect yet potentially 

powerful. Accordingly, we believe that the principle 

articulated in Chambers applies to Debra's affidavit: the 

affidavit will be admissible, despite its failure to fall into 

any of our traditional hearsay exceptions, provided that the 

defendant establishes both that it "[i]s critical to [the 

defendant's] defense" and that it bears "persuasive assurances 

of trustworthiness." Chambers, 410 U.S. at 302.

Having recognized that the principle articulated in 

Chambers applies to Debra's affidavit, we conclude that the 

defendant's first motion for a new trial raises a substantial 

issue, warranting an evidentiary hearing. Debra's affidavit 

plainly would have been critical to the defense. The affidavit 

directly contradicts Jackson's testimony, indicating that he 
24

could not possibly have observed what he claimed at trial to 

have observed. Jackson's other testimony suggested that both 

the defendant and the defendant's acquitted codefendant, 

Williams, had a motive to murder Greene. In the absence of 

Jackson's statement that he saw the defendant shooting Greene, 

however, there is no evidence that makes it more likely than not

-- much less evidence capable of proving beyond a reasonable 

doubt -- that the defendant, rather than Williams, was the 

perpetrator.

Because Debra's affidavit is critical to the defense, its 

admissibility hinges on whether the defendant establishes that 

it bears persuasive assurances of trustworthiness. Although the 

record as it stands does not permit us to answer that question, 

the evidence submitted by the defendant establishes that there 

is a substantial issue whether the affidavit has sufficient 

assurances of trustworthiness. In reaching this determination,

we draw on several instructive similarities between the 

circumstances at issue here and those involved in Chambers. Cf. 

Montana v. Egelhoff, 518 U.S. 37, 52-53 (1996) (plurality 

opinion) (characterizing Chambers as "fact-intensive" and "an 

exercise in highly case-specific error correction"); State v. 

Bunyan, 154 N.J. at 270 ("Because the holding of Chambers is so 

intimately related to the facts and circumstances of that 

case, . . . we must consider the facts of Chambers and compare 
25

them to the facts of this case" [citation and quotation 

omitted]).

In Chambers, 410 U.S. at 300-301, the United States Supreme 

Court observed that, while the hearsay statement at issue fell 

outside of the hearsay exception for statements against 

interest, the admission of the statement was consistent with the 

underlying "rationale" for that exception. Here, similarly, 

while Debra's affidavit fails to satisfy the technical 

requirements for the dying declaration hearsay exception, it 

appears to fall within the rationale for the exception. A 

traditional justification for the dying declaration exception is 

that, when a person is "under a sense of impending death" and 

"every hope of this world is gone[,] . . . the mind is induced 

by the most powerful considerations to speak the truth"

(citations and quotations omitted). Giles v. California, 554 

U.S. 353, 397 (2008). See Chia v. Cambra, 360 F.3d 997, 1006 

(9th Cir. 2004) (although hearsay statement at issue did "not 

technically meet the definition of a dying declaration, it was 

given when [the declarant] knew that he was in real danger of 

imminent death -- a traditional indicium of reliability"). 

Consistent with that justification, in her affidavit Debra 

attributed her decision to come forward to the "uncertainty of 

[her] medical condition" and her desire to clear her conscience 

of her prior failure to come forward with what she knew about 
26

the shooting. Indeed, according to Betty Jo, Debra's plea that 

she "make the truth known about the shooting in . . . Jackson's 

apartment" was her "sister's dying words." These circumstances, 

particularly given that the Commonwealth has as of yet offered 

no alternative explanation for why Debra would have an incentive 

to lie in her affidavit, tend to support the trustworthiness of 

Debra's statement.

The United States Supreme Court also observed in Chambers, 

410 U.S. at 300, that the hearsay statement at issue bore 

persuasive assurances of trustworthiness because it "was 

corroborated by some other evidence in the case." Here 

similarly, Debra's affidavit is corroborated by Jackson's own 

initial statements to police, in which he asserted that he did 

not see the shooter. The four affidavits of Debra, Betty Jo, 

and Anderson, moreover, bolster one another through their 

inclusion of shared details. For instance, Jackson testified at 

trial that only he, the defendant, Williams, and the victim were 

present in the apartment at the time of the shooting. Both 

Debra and Anderson, however, indicate that there were others 

present moments before the shooting. Debra and Anderson appear 

to have observed one another, with Anderson remarking that he 

"saw . . . Jackson going into the bathroom with a black 

woman . . . known to [him] as Debra," and Debra observing that 

she saw "a black male known to [her] as Joe." Both Debra and 
27

Betty Jo also observed the presence of a woman known to them as 

"Sandra."

Finally, in Chambers the Supreme Court remarked that the 

third party confessed on multiple occasions. The Court 

concluded that "[t]he sheer number of independent confessions 

provided additional corroboration for each," particularly since 

each confession "was made spontaneously to a close acquaintance 

shortly after the murder had occurred." Id. Here, Betty Jo's 

affidavit indicates that, following the shooting and until 

Debra's death, Debra on multiple occasions told her "that she 

and . . . Jackson were in the bathroom at the time of the 

shooting and that they could not see what had occurred or who 

had been involved in the shooting."

In identifying these elements that arguably may support the 

trustworthiness of Debra's affidavit, we do not in any way 

suggest that the affidavit ultimately is admissible. We 

conclude only that there is a substantial issue whether Debra's 

affidavit is supported by sufficiently persuasive guarantees of 

trustworthiness that it is admissible under the constitutional 

principle articulated in Chambers, and that the resolution of 

that issue will benefit from an evidentiary hearing.6

 

6 There is no indication in the record that either Betty Jo 

or Anderson is unavailable to testify and expand upon the 

matters addressed in their affidavits. Were they to testify at 

an evidentiary hearing on the defendant's motion for a new 
28

If the judge determines on remand that Debra's affidavit is 

supported by sufficiently persuasive guarantees of 

trustworthiness to be admissible, the result will not be an 

automatic new trial. Instead, the judge must then decide 

whether Debra's affidavit, together with the evidence offered by 

Betty Jo and Anderson, satisfies the established standard for a 

motion for a new trial. That standard requires a showing "both 

that the evidence is newly discovered and that it casts real 

doubt on the justice of the conviction." Commonwealth v. Grace, 

397 Mass. at 305. The inquiry into whether the defendant has 

satisfied the new trial standard is conceptually distinct from 

the threshold inquiry into whether Debra's affidavit is 

admissible at all, although 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.7

 

trial, the judge could assess their credibility as it bears on 

the trustworthiness of Debra's affidavit. Similarly, there may 

also be testimony taken from the lawyer who prepared Debra's 

affidavit, who could provide information about her physical and 

mental condition at the relevant time. The Commonwealth 

likewise could call witnesses and probe factors relating to, 

among other things, Debra's potential motives and state of mind 

at the time she gave her affidavit and before her death. For 

instance, it could be explored whether Debra had any sort of 

relationship with the defendant that might have created a motive 

for her to lie in order to support the defendant's motion for a 

new trial.

7 In addition to concluding that Debra's affidavit was not 
29

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." Id. at 306. The Commonwealth asserts 

that, regardless of whether the affidavit is admissible, it is 

not newly discovered. The Commonwealth concedes that Debra was 

unavailable at the time of the trial, given the prosecution's 

unsuccessful efforts to locate her. The Commonwealth, however, 

contends that Betty Jo was available at the time of trial. 

Because Betty Jo allegedly knew that her sister claimed to have 

been in the bathroom with Jackson at the time of the shooting, 

and because defense counsel chose not to call Betty Jo as a 

witness, the Commonwealth contends that the defendant has not 

met his burden of showing that the substance of Debra's 

affidavit was not reasonably discoverable at the time of the 

trial.

 

admissible as a dying declaration, the judge also determined 

that Debra's statements "would not be sufficient to warrant a 

new trial" because it only "tend[s] to impeach the testimony of 

Jackson." In Commonwealth v. Cowels, 470 Mass. 607, 621 (2015), 

however, which we decided after the judge denied the defendant's 

first motion for a new trial, we clarified that "we have never 

adopted an inflexible rule that newly discovered evidence that 

merely corroborates or impeaches a witness's testimony is an 

insufficient basis for a motion for a new trial." Indeed, we 

noted that, "in rare cases, a new trial may be warranted where 

the Commonwealth's case depends so heavily on the testimony of a 

witness and where the newly discovered evidence seriously 

undermines the credibility of that witness" (citations, 

quotations, and alterations omitted). Id.
30

The motion judge did not address the question whether the 

evidence offered by the defendant was newly discovered, likely 

because of her determination that, in any event, Debra's 

affidavit would not be admissible. Like the issue whether 

Debra's affidavit bears persuasive assurances of 

trustworthiness, we believe that the question whether the 

substance of Debra's affidavit is newly discovered warrants an 

evidentiary hearing. We note, for instance, that Betty Jo's 

affidavit indicates that she was "not completely truthful" with 

the police officers who questioned her because she "did not want 

to get involved in the case," and that she stated at the 

suppression hearing conducted shortly before the trial that she 

refused to speak with defense counsel. We also have no 

information about whether Anderson was available at the time of 

the trial. In light of these circumstances, we think that the 

answer to the question whether "reasonable pretrial diligence 

would . . . have uncovered" (quotation omitted) the information 

contained in Debra's affidavit hinges on questions of fact that 

warrant an evidentiary hearing. Commonwealth v. Weichell, 446 

Mass. 785, 799 (2006).

We conclude by emphasizing the narrowness of the 

constitutional principle that governs this case and necessitates 

our remand. Our decision does not signal a departure from our 

long-standing refusal to adopt a broad residual hearsay rule 
31

modeled on the Federal rule. In the vast majority of cases, the 

established hearsay exceptions will continue to govern the 

admissibility of hearsay evidence at most criminal trials, with 

this constitutional hearsay exception operating only in the 

rarest of cases, where otherwise inadmissible evidence is both 

truly critical to the defense's case and bears persuasive 

guarantees of trustworthiness.

d. Ineffective assistance of counsel based on defense

counsel's posttrial conduct. The defendant argues that, if this 

court concludes that Debra's affidavit is not admissible, then 

we should find that counsel provided ineffective assistance in 

failing to act immediately to preserve Debra's testimony, and 

that counsel's error caused a substantial likelihood of a 

miscarriage of justice. Because of the inadequacy of the record 

before us at this point and because we are remanding the case 

for a determination whether Debra's affidavit is admissible 

under the standard articulated in Chambers, we decline to reach 

the defendant's ineffective assistance of counsel claim based on 

defense counsel's posttrial conduct. If the judge on remand 

concludes that the affidavit is not admissible, the defendant 

may then bring a motion for a new trial based on defense 

counsel's allegedly ineffective posttrial conduct in handling 

the defendant's motion for a new trial.

3. Conclusion. The defendant's convictions are affirmed, 
32

as is the order denying the defendant's second motion for a new 

trial. The order denying the defendant's first motion for a new 

trial, however, is vacated, and the case is remanded to the 

Superior Court for further consideration of that motion in a 

manner consistent with this opinion.

So ordered.