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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 cross-

examination 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 cross-

examination.      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. Silva-

Santiago, 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 third-

party 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.
