Commonwealth v. Drayton

Decision Date01 October 2015
Docket NumberSJC–10667.
Citation38 N.E.3d 247,473 Mass. 23
PartiesCOMMONWEALTH v. Kenji DRAYTON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Cathryn A. Neaves for the defendant.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

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 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 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 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”—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 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 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 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 ...

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