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SJC-10667

                 COMMONWEALTH   vs.   KENJI DRAYTON.



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

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


Homicide. Firearms. Evidence, Hearsay, Declaration of deceased
     person. Practice, Criminal, Capital case, New trial,
     Affidavit.



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

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


     Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.
     Cathryn A. Neaves for the defendant.


    KAFKER, J.    A Superior Court jury convicted the defendant

of murder in the first degree for the killing of Michael Greene

and of unlawful possession of a firearm.     The Commonwealth's

case against the defendant at trial largely depended on the

testimony of a single percipient witness, James Jackson.
                                                                    2


Approximately eighteen months after the convictions, another

individual, Debra Bell, came forward and stated in an affidavit

that Jackson could not have witnessed the shooting because she

was in the bathroom with Jackson at the time that it occurred.1

The affiant died shortly after providing the affidavit.    The

defendant moved for a new trial on the basis that this affidavit

was newly discovered evidence, but the trial judge denied the

motion.

     In Commonwealth v. Drayton, 473 Mass. 23 (2015)

(Drayton I), we rejected the defendant's claims of error at

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

c. 278, § 33E.   We did, however, remand the case for an

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

determine whether "Debra's affidavit falls within a narrow,

constitutionally based exception to the hearsay rule, which

applies where otherwise inadmissible hearsay is critical to the

defense and bears persuasive guarantees of trustworthiness."

Drayton I, supra at 25.   On remand, a different judge determined

that Debra's affidavit fell within the exception and granted the

defendant's motion for a new trial.   The Commonwealth appealed.




     1 Because Debra Bell shares a last name with her sister who
is also discussed, Betty Jo Bell, we refer to both by their
first names.
                                                                     3


    We discern no error or abuse of discretion by the motion

judge in allowing the defendant's motion for a new trial.      In so

concluding, we give deference to the motion judge's credibility

findings and conduct our own independent review of the

documentary evidence and constitutional issues.     The affidavit

is admissible because it would have been critical to the defense

and it bears "persuasive assurances of trustworthiness."

Drayton I, 473 Mass. at 36, quoting Chambers v. Mississippi, 410

U.S. 284, 302 (1973).    Furthermore, the affidavit is newly

discovered evidence and casts real doubt on the justice of the

defendant's convictions.    We therefore affirm the decision of

the motion judge granting the defendant's motion for a new

trial.

    1.   Background.     Drayton I presented the facts underlying

the defendant's convictions.    See Drayton I, 473 Mass. at 25-29.

We focus here on the specific facts relevant to the issues in

this appeal.

    a.   The shooting.     The Commonwealth's evidence against the

defendant centered on the testimony of Jackson, the man who

lived in the apartment where Greene was killed.     Drayton I, 473

Mass. at 26.   Jackson testified that he let Greene use his

apartment to sell drugs in exchange for money and free drugs.

Id. at 25.   Jackson had a similar arrangement in the same

apartment with the defendant and his codefendant, Levino
                                                                      4


Williams.2    Id.   One week before the shooting, Jackson told

Greene that he could no longer use the apartment to sell drugs.

Id.

      On the day of the shooting, the defendant and Williams were

in the apartment with Jackson, drinking and rolling "oolies,"

which are "cigarettes laced with cocaine and 'reefer.'"      Id.

Debra and her sister, Betty Jo Bell, were also at the apartment

during the day, although Jackson testified that both Debra and

Betty Jo left at some point prior to the shooting.3

      Jackson testified that, at some point, he let Greene into

the apartment.      According to Jackson's testimony, when he let

Greene into the apartment, it was just Greene, the defendant,

Williams, and Jackson still in the apartment, with the defendant

in the living room with Jackson and Williams seated nearby at

the kitchen table.     Jackson then told Greene that he did not

want Greene to sell drugs in the apartment anymore, which upset

Greene.     Id.   According to Jackson, Greene then made a cellular

telephone call during which he threatened to "kill 'em all" and

burn down the apartment.      Id.   After Greene made this

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

      3According to James Jackson's testimony, there may have
been several other people in the apartment throughout the day.
Jackson testified that two tall white males, one named Mark and
another whose name is unknown, were in the apartment during the
day. Statements made to the police also place a woman named
Sandra in the apartment at various times.
                                                                           5


threatening telephone call, Jackson left the living room to go

to the bathroom.       Id.    Jackson heard a gunshot as he was

preparing to leave the bathroom.        Id.    He walked out and saw the

defendant shoot Greene five additional times.          Id. at 25-26.

     The Commonwealth offered very little physical evidence

beyond Jackson's testimony that linked the defendant to the

shooting:   the Commonwealth never located the firearm used to

shoot Greene, and the only physical evidence that linked the

defendant to the apartment were a beer bottle that contained a

latent finger print matching the defendant's right middle finger

joint and a cellular telephone linked to a person known to both

the defendant and Williams.4        Id. at 27.

     Furthermore, as we noted in Drayton I, "[t]he problems with

Jackson's credibility were legion."           Id. at 26.   Jackson was a

heavy drinker and used drugs, including "crack" cocaine,

extensively throughout his life and in the days leading up to

the shooting.    Id.     His testimony at trial contradicted some of

his earlier statements, including his 911 call and his grand

jury testimony.       Id.    For example, in his 911 call, Jackson

stated that an unknown assailant pushed through the door and

shot Greene.    Id.    Jackson also testified during his grand jury

     4 The police traced the cellular telephone to an address in
the Dorchester section of Boston and a woman named Tamika Ivy.
The parties stipulated at trial that both the defendant and
Williams knew Ivy.
                                                                       6


testimony that Williams was standing behind the defendant as the

defendant shot Greene but testified at trial that he did not see

Williams when he saw the defendant shoot Greene.       Id.   Defense

counsel attempted to impeach him with many of these

inconsistencies.      Id.   Jackson even stated during his testimony

that parts of his previous statements were either untrue or

mistaken.    Id.    Despite these limitations and the "other

inconsistencies and seeming obfuscations" in Jackson's

testimony, the defendant was convicted of murder in the first

degree for the shooting of Greene based largely on Jackson's

testimony.    Id.

    b.   Postconviction affidavits.       In October, 2006, eighteen

months after the convictions, Debra contacted attorney Bernard

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

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

stated that she was diagnosed with metastatic cancer and was

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

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

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

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

also stated that her initial statement to police on September

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

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


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

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

     In the affidavit, Debra described the afternoon of the

shooting very differently from what was presented by Jackson's

testimony.    She stated that she arrived at the apartment that

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

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

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

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

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

According to the affidavit, Debra then brought Jackson into the

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

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

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

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

     5 In her initial statement, Debra told the police that she
left the apartment before the shooting and did not mention
anything about being in the bathroom with Jackson. In her
affidavit, Debra stated that at the time of her original
statement to police she was "afraid of the officers," she "did
not want to get involved in the case," and "the officers told
[her] that they would take care of arrest warrants that were
pending against [her] in different courts."

     6 In the affidavit, Debra stated that she had known Jackson
"for about three years" and that she "had an off and on intimate
relationship" with him. In her statement to police on September
27, 2001, Debra described her relationship with Jackson as "like
a brother/sister friendship, concerned about no other guy." At
trial, Jackson testified on cross-examination that he had not
been involved in a relationship with Debra.
                                                                    8


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

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

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

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

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

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

affidavit concluded with the statement that "there was

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

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

time."

     Grossberg obtained several additional affidavits, including

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

arrived at the apartment on the day of the shooting at

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

returning at some point in the afternoon to find the building

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

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

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

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

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

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

     7 Betty Jo died in February, 2016, which was after the
release of our decision in Drayton I but prior to the
evidentiary hearing. See Commonwealth v. Drayton, 473 Mass. 23
(2015) (Drayton I) (decided October 1, 2015).
                                                                    9


bathroom getting high on crack cocaine and engaging in sexual

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

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

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

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

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

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

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

    The other two affidavits were from a man identified as

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

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

shooting to purchase crack cocaine from Jackson for a friend.

Anderson stated that Jackson handed him a small packet of crack

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

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

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

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

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

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

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

    c.   Procedural history.   While his direct appeal was

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

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


discovered evidence that warranted a new trial.8   Following a

nonevidentiary hearing, the trial judge denied the motion in

November, 2007.   Although the judge stated that she had

considered holding an evidentiary hearing, she decided not to do

so because the evidence was inadmissible and impeachment

evidence alone is ordinarily insufficient to obtain a new trial.

She accordingly denied the motion on these grounds.

Specifically, the judge concluded that the affidavit was

inadmissible because it did not meet the requirements of the

dying declaration exception.   Because the judge determined that

the affidavit was inadmissible, she did not reach the other

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

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

this time alleging ineffective assistance of counsel due to the

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

violation of his right to a public trial because of the

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

denied this motion in August, 2012.

     This court then heard the defendant's consolidated appeal

from the convictions of murder in the first degree and unlawful

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

     8 Debra died on December 19, 2006, a week after the
defendant filed his first motion for a new trial. The defendant
later filed the affidavits of Betty Jo and Anderson in support
of the first motion for a new trial.
                                                                    11


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

rejected the claims of error at trial that the defendant

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

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

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

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

concluded that, under the unusual circumstances of this case,

there was a substantial issue whether Debra's affidavit falls

within a narrow, constitutionally based exception to the hearsay

rule, which applies where otherwise inadmissible hearsay is

critical to the defense and bears persuasive guarantees of

trustworthiness.    Id. at 40.   We therefore remanded the matter

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

     On remand, a different judge in the Superior Court

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

witness who testified was Grossberg.    Grossberg testified that

he tried to locate Debra prior to trial and hired an

investigator to find her but was unsuccessful.    Grossberg then

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

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

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

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

     9 The case was heard by a different judge on remand because
the original trial judge had retired.
                                                                   12


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

with Grossberg at his office and signed her affidavit.     Anderson

also met with Grossberg at his office and signed his two

affidavits.10

     The motion judge concluded that Debra's affidavit was

admissible because it met the test articulated by this court in

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

Debra was motivated to come forward by "her certain impending

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

evidence of any other motivating circumstance was presented."

The Commonwealth did not produce "any evidence that Debra had

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

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

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

statements, further demonstrating the statements'

trustworthiness."   The judge credited Grossberg's testimony on

the circumstances surrounding the affidavits from Betty Jo and

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

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

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


     10The motion judge noted that it was not clear how Joseph
Anderson had come to attorney Bernard Grossberg's attention but
credited Grossberg's testimony regarding the statements in the
affidavits. Grossberg testified that he did not know about
Anderson until Debra mentioned him in her affidavit.
                                                                    13


evidence calling into question the authenticity of these

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

concluded that the affidavit was newly discovered evidence as

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

Grossberg had no reasonable expectation that she had any

exculpatory information.    As the affidavits were newly

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

convictions, the judge therefore granted the defendant's motion

for a new trial.

    2.    Discussion.   Where the Commonwealth appeals from the

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

whether the judge committed a significant error of law or abuse

of discretion in allowing the defendant's motion.    Commonwealth

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

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

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

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

range of reasonable alternatives" (quotation and citation

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

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

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

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

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

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


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

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

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

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

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

based on testimony at the evidentiary hearing and do not disturb

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

'make an independent determination as to the correctness of the

judge's application of constitutional principles to the facts as

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

205 (2011).

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

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

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

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

affidavit would have been critical to the defense, was clearly

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

issues to be addressed at the evidentiary hearing on remand.

First, the motion judge was to determine whether the affidavit

met the second part of the test for admissibility, which

examines whether the affidavit bears "persuasive assurances of

     11The Commonwealth argues that we should overturn our
decision in Drayton I insofar as it recognizes a
constitutionally based exception to the hearsay rule. For the
reasons stated in Drayton I, we decline to do so.
                                                                    15


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

the affidavit were determined to be admissible, the motion judge

then had to determine whether the affidavit was properly viewed

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

Third, the judge had to determine whether the affidavit casts

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

We address each of these issues in turn.

    a.   Whether the affidavit bears persuasive assurances of

trustworthiness.    Because the affidavit "plainly would have been

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

admissibility of the affidavit depended on whether it bears

"persuasive assurances of trustworthiness."    Drayton I, 473

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

highlighted several elements that seemed to support the

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

Following the evidentiary hearing, the motion judge found that

the affidavit does bear persuasive assurances of trustworthiness

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

motive, and the corroboration that exists for the affidavit.

    The motion judge found that Debra's statements were

"motivated by her certain impending death and her desire to

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

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

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


of statements that fall within the dying declaration exception.

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

technical requirements for the dying declaration hearsay

exception, it appears to fall within the rationale for that

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

by the evidentiary hearing" supported this conclusion because

Debra appeared sickly and emotional and died soon after signing

the affidavit.   The motion judge also credited Grossberg's

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

signed the affidavit.

    The motion judge also found no evidence of any motivation

for Debra coming forward other than her desire to clear her

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

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

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

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

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

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

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

Grossberg testified that he searched for Debra both before and

after the trial but was unsuccessful.   The motion judge also

observed that there is no evidence of any connection between

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


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

motive for Debra as potentially persuasive in Drayton I and

something that could be brought out at the evidentiary hearing.

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

opportunity to develop the record at the hearing, the motion

judge ultimately found that "no evidence of any other motivating

circumstance was presented."

       Another element that the motion judge found persuasive was

the corroboration that exists for Debra's statements.    In

Chambers, the United States Supreme Court found it persuasive

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

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

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

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




       We also note that the judge concluded that the statements
       12

Debra gave to Grossberg, rather than those given to the police,
are more likely to be true. As Debra explained in her
affidavit, Debra had various reasons to lie in her initial
statement to the police. The affidavit stated that she was
"afraid" and that she "did not want to get involved in the
case." She also stated that the officers "kept coming to [her]
home and harassed [her] children and family until [she] agreed
to meet with [them]" and that they "told [her] that they would
take care of arrest warrants pending against [her]." Thus,
while Debra had ample motivation to lie in her original
statement to the police, there is no evidence of any motivation
to lie in her affidavit. We discern no error in the judge's
analysis.
                                                                    18


affidavits.     The motion judge found each of these affidavits to

be credible, particularly the affidavit of Betty Jo.13

     We discern no error in the judge's analysis or

determination that Debra's affidavit bears "persuasive

assurances of trustworthiness."     Our own analysis confirms his

findings.    We reiterate that this exception is very narrow and

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

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

application of this constitutional exception is appropriate.

     b.     Whether the affidavit constitutes newly discovered

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

basis of newly discovered evidence, the defendant 'must

establish both that the evidence is newly discovered and that it

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

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

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

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

inquiry into whether the defendant has satisfied the new trial

standard is conceptually distinct from the threshold inquiry


     13Neither Betty Jo nor Anderson testified at the hearing.
Betty Jo died prior to the hearing, and Anderson could not be
located. The motion judge, however, credited Grossberg's
testimony concerning the circumstances that prompted Betty Jo
and Anderson to provide their affidavits. Our analysis of the
documentary evidence is consistent with the judge's analysis,
and we defer to his finding on credibility regarding Grossberg.
                                                                   19


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

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

of the affidavit's trustworthiness may well also inform the

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

the conviction."    Drayton I, supra at 39.

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

defendant must show that the evidence was 'unknown to the

defendant or his counsel and not reasonably discoverable by them

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

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

that the statements in Debra's affidavit were newly discovered

evidence.

    It is undisputed that Debra was unavailable at the time of

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

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

believe that she had any exculpatory information contradicting

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

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

suppression hearing one month before the trial, in which she

merely repeated the story she told police and refused to speak

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

capias.   Given Betty Jo's uncooperativeness and her prior

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

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


information contained in Debra's affidavit.    The motion judge

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

the time of trial, Betty Jo's consistently uncooperative

behavior prior to trial strongly suggests that she would not

have revealed these statements if the defense called her to

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

    c.     Whether the affidavit casts real doubt on the justice

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

determine that newly discovered evidence likely would have

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

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

determining whether the newly discovered evidence would have

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

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

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

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

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

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

context within which to assess whether the newly discovered

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

deliberations."   Cowels, supra.

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

impeach the credibility of a witness will not ordinarily be the

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


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

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

and the newly discovered evidence contradicts that testimony.

See Cowels, 470 Mass. at 621.14

     The motion judge found that Debra's affidavit has precisely

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

against the defendant depended on the testimony of Jackson, a

witness with extensive credibility issues.   The motion judge

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

no evidence that pointed to the defendant as the person who

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

just impeach Jackson's testimony; they undermine the


     14In Commonwealth v. Cowels, 470 Mass. 607 (2015), the
defendants were convicted of murder in the first degree in the
stabbing death of the victim. The Commonwealth's main witness
testified to a timeline that placed the defendants at the
witness's apartment at various points throughout the night,
first with the victim and then later without her. Id. at 609-
610. The witness testified that when the defendants returned
without the victim they borrowed some clothes and made various
threatening statements indicating that they had killed the
victim. Id. The only physical evidence linking the defendants
to the witness's home were two towels with bloodstains, one of
which was too small to be tested. Id. at 610-611. After the
defendants were convicted, deoxyribonucleic acid (DNA) testing
revealed that the blood on the towel did not belong to either of
the defendants or the victim. Id. at 614. The defendants
sought a new trial on the basis of this and other newly
discovered evidence, but the trial judge denied the motion. Id.
at 614-615. On appeal, we concluded that a new trial was
warranted because the DNA testing negated key pieces of evidence
that likely were a real factor in the jury's deliberations. Id.
at 623-624.
                                                                   22


Commonwealth's entire case against the defendant.    Therefore,

the statements are more than just mere impeachment evidence and

are a sufficient basis for a new trial.

    The motion judge accordingly concluded that Debra's

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

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

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

defendant was dependent on Jackson's testimony, which Debra

directly contradicted.    There was also little evidence to

corroborate Jackson's testimony.    The motion judge therefore

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

justice of the convictions.

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

judge did not abuse his discretion in concluding that the

affidavit is admissible and newly discovered evidence that casts

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

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

judgments of conviction are vacated and set aside, and the

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

                                     So ordered.
