NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
SJC-13783
COMMONWEALTH vs. STEPHEN PINA.
Suffolk. March 4, 2026. - July 28, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Homicide. Firearms. Evidence, Exculpatory, Impeachment of
credibility, Identification, Disclosure of evidence, Police
report, Third-party culprit. Practice, Criminal, Witness,
Disclosure of evidence, Waiver, New trial. Witness,
Credibility, Impeachment. Mental Health. Identification.
Deoxyribonucleic Acid. Waiver.
Indictments found and returned in the Superior Court Department on October 27, 1993.
Following review by this court, 430 Mass. 266 (1999), a motion for a new trial, filed on November 18, 2020, was heard by Peter B. Krupp, J.
A request for leave to appeal was allowed by Gaziano, J., in the Supreme Judicial Court for the county of Suffolk.
Ian MacLean, Assistant District Attorney, for the
Commonwealth.
Jill A. Tessier (Lisa M. Kavanaugh also present) for the defendant.
Radha Natarajan & Katharine Naples-Mitchell, for New England Innocence Project & another, amici curiae, submitted a brief.
2
GAZIANO, J. A Superior Court jury convicted the defendant
of unlawful possession of a firearm and murder in the first
degree on a theory of deliberate premeditation for the killing
of Keith Robinson (victim or shooting victim) on February 26,
1993. There was no physical evidence presented at trial tying
the defendant to the shooting. Rather, the Commonwealth
primarily relied on the testimony of two eyewitnesses, Debra
Annas1 and Timothy Hall, who said that they observed the
defendant shoot the victim. At all times, the defendant has
advanced a defense based on misidentification.
In Commonwealth v. Pina, 430 Mass. 266, 275 (1999)
(Pina I), we affirmed the defendant's convictions and declined
to grant the defendant relief under G. L. c. 278, § 33E. The
defendant has since filed three motions for a new trial. After
the first two motions were denied, the defendant filed the
present motion in November 2020.
In his third motion, the defendant argued that he was
entitled to a new trial because, among other reasons, (1)
evidence that Annas was psychiatrically hospitalized at the time
of her testimony constituted either newly discovered or
1 Annas is referred to in various places in the record as "Deborah Rocher," "Debra Rocher," "Debra Annas," "Deborah Rocher Annas," and "Deborah Annas." In Commonwealth v. Pina, 430 Mass. 266, 267 (1999), we referred to her as "Debra Rocher Annas." Here, we refer to her as the motion judge did: Debra Annas.
3
nondisclosed evidence that would have allowed the defendant to
challenge her credibility and the reliability of her
identification; (2) police reports that potentially implicated a
third party in the shooting constituted either newly discovered
or nondisclosed evidence that would have allowed the defendant
to make a strong third-party culprit defense; and (3) newly
available deoxyribonucleic acid (DNA) evidence from the murder
weapon and from the victim's jacket excluded the defendant as a
contributor.
A Superior Court judge (motion judge) concluded that, given
the totality of the nondisclosed, newly discovered, and newly
available evidence, "justice may not have been done," Mass.
R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001) (rule
30 [b]). Accordingly, the motion judge granted the defendant's
motion for a new trial.
The matter is now before us on the Commonwealth's appeal
from the motion judge's decision, after a single justice of the
county court allowed the Commonwealth's application for leave to
appeal. Discerning no error of law or abuse of discretion by
the motion judge, we affirm the allowance of the defendant's
motion for a new trial.2
2 We acknowledge the amicus brief submitted by the New England Innocence Project and the Criminal Justice Institute at Harvard Law School in support of the defendant.
4
1. Background. Pina I, 430 Mass. at 267-269, presented
the facts underlying the defendant's convictions. On February
26, 1993, the victim was shot while selling drugs on Horadan Way
in the Mission Hill section of Boston. The shooter fled in the
direction of McGreevy Way, where police officers later retrieved
a revolver from a snowbank. The Commonwealth did not present
any forensic, video, or photographic evidence tying the
defendant to the shooting. However, two eyewitnesses -- Hall
and Annas -- both identified the defendant as the shooter.
We focus our remaining discussion of the background on the
specific facts relevant to the issues in this appeal, which we
draw from certain trial evidence, the motion judge's factual
findings, and additional details from the record that are
consistent with the judge's findings and determinations of
credibility. See Commonwealth v. Gaines, 494 Mass. 525, 532
(2024); Commonwealth v. Lessieur, 488 Mass. 620, 621 (2021). We
reserve further details for our discussion below.
a. Trial testimony. i. Timothy Hall. According to
Hall's trial testimony, on February 26, 1993, at around 7:30 or
8 P.M., Hall traveled to Horadan Way to purchase heroin from the
victim. While he was negotiating with the victim to buy the
drugs, a "lighter complexioned, heavy-set" man who was "about
[Hall's] height" started walking toward him and the victim at a
"moderate" pace. As the man approached, Hall could hear him
5
singing "[s]omething like . . . [g]ive me your shit or I'll bust
you with my click." The man grabbed the victim "[b]y either his
collar or his lapel" and "started shooting." Hall heard "[a]t
least four shots." As the victim fell backwards, the man
continued firing. Hall testified that he was looking directly
at the shooter while he was firing the gun and was so close to
the man that he "could have touched him." The shooter then ran
in the direction of McGreevy Way. At that point, Hall estimated
that about twenty seconds had elapsed from the time he first saw
the shooter.
An officer who spoke with Hall within ten minutes of the
shooting testified that Hall described the shooter as "a [B]lack
male approximately five [feet,] nine [inches], between the ages
of twenty-three and twenty-six, weighing . . . a hundred and
sixty [to] a hundred and eighty pounds, wearing a black knit
hat, a red . . . winter waist-length jacket, dark pants and dark
shoes."3
Hall was then taken to a police station in the Roxbury
section of Boston. He testified that the police showed him a
3 As mentioned, Hall testified at trial that the shooter was a "lighter complexioned, heavy-set" man. In an interview with a homicide detective that occurred less than two hours after the shooting, Hall described the shooter as a "possibly [B]lack male" with "light skin" and a "husky build," standing five feet, nine inches tall, and wearing a "down fill style" red ski parka, along with a black wool knit hat.
6
photographic array containing from sixteen to twenty
photographs.4 Hall identified a photograph of the defendant as
the shooter but told police that he "was maybe about sixty
percent sure."5 At trial, Hall made an in-court identification
of the defendant as the shooter.
ii. Debra Annas. At trial, Annas testified that she had
known the defendant for "[m]aybe a year and a half, [or] two
years" prior to the shooting. The defendant lived across from
her on Horadan Way in the Mission Hill housing development.
Annas claimed that she had been purchasing drugs from him for
"[a] couple of months" before the shooting, including "[e]very
night" in February 1993.
On the evening of February 26, 1993, Annas went to 31
Horadan Way to purchase drugs. Outside of that address was a
crowd of fifteen to twenty-five people, including the victim.
Annas asked the victim for drugs, but he did not have the type
she wanted. According to Annas, she was standing on the street
corner of 31 Horadan Way when, at about 9 P.M., she saw a
"maroonish color car" pull up "really fast," and the driver
4 A police officer testified that the photographic array consisted of eight photographs.
5 At trial, Hall testified that at the time of the
identification he was actually "a hundred percent certain" but did not say so because he was "starting to have second thoughts and just didn't want to get involved all of a sudden."
7
"slammed on the brakes." She testified that three individuals
occupied the car, with the defendant seated in one of the
passenger seats. Annas witnessed the defendant, who was dressed
in "dark clothing" and appeared "very angry," get out of the car
and approach the victim "really fast," at which point "they
started to argue." As the two argued, Annas stood nearby and,
according to her trial testimony, had no problem viewing the
defendant's face. She heard the defendant make comments about
drugs, a ring, money, and "business," although she "wasn't
listening to the whole thing."
Annas testified that she then saw the defendant return to
the car and retrieve a gun from between the seats. He then
"very heavily walked really fast" toward the victim while
singing a rap song. Annas saw "a flash" from the gun and heard
"[a] few" shots. She testified that she witnessed the defendant
"shoot [the victim] in the eye." She then saw the defendant run
toward McGreevy Way.
Annas did not report what she witnessed to the police the
night of the murder because "you don't run to the police in the
projects." While Annas could not recall the exact date when she
first spoke with law enforcement regarding the murder, she
testified that she initially discussed what she saw with police
"several months" later, after an unrelated killing of one of her
friends. Detective John McCarthy of the Boston police
8
department testified that he showed Annas eight photographs on
April 18, 1993, including one of the defendant, but she did not
identify any of the individuals in the photographs as the
shooter.6 It was not until Annas was shown a second photographic
array in September, over six months after the murder, that she
identified the defendant as "[t]he person that shot [the
victim]." Annas testified that, prior to viewing one of the
photographic arrays, she was taken out of a "base house" -- a
place "where everybody goes to smoke cocaine" -- and was high on
"crack" cocaine when viewing the photographs. She could not
recall whether this happened prior to viewing the first or
second photographic array.
iii. Officers Yvonne Moschella and James O'Loughlin. On
cross-examination of two Boston Housing Authority police
officers -- Yvonne Moschella and James O'Loughlin -- defense
counsel attempted to connect the shooting victim to a robbery
that occurred earlier on the day of the shooting. According to
Moschella and O'Loughlin, at approximately 5 P.M. on February
26, 1993 -- several hours before the victim was shot -- the
officers observed two men walking on Annunciation Road, which is
a few blocks away from Horadan Way. One of the men, who was
6 Annas testified that when she was shown the first
photographic array, she told detectives that she recognized the picture of the defendant and "was thinking that they would just put two and two together, but they didn't."
9
bleeding from the head, told the officers that he had been
robbed. Moschella's report of the incident stated that the
individual was "bleeding profusely from a wound to his right eye
area." Although the officers asked the man his name, he refused
to provide it or "cooperate in anyway whatsoever." When asked
if he wanted to pursue the matter in court, the man responded,
"No, I'll take care of it myself."
The individual did, however, point out the man who
allegedly committed the robbery. Both officers testified that
they observed the alleged robber entering an apartment further
down Annunciation Road. Moschella, who could see the alleged
robber's face, estimated that he was twenty yards away.
O'Loughlin, on the other hand, could not see the alleged
robber's face and believed he was one hundred yards away. Both
officers testified that the alleged robber was a Black male with
a medium complexion, standing approximately five feet, ten
inches tall, weighing about 170 pounds, and wearing a red
jacket. Moschella added that the alleged robber had "cropped
hair."
The description of the Annunciation Road robber was
consistent with that of the shooting victim. At trial,
Moschella and O'Loughlin, who had responded to the scene of the
shooting after hearing gunshots, described the shooting victim
as a Black male with a medium complexion, standing approximately
10
five feet, ten inches tall, weighing 160 to 170 pounds, with
cropped hair, and wearing a red jacket. Following the shooting,
O'Loughlin wrote a report in which he stated that he believed
the shooting victim was also the alleged robber from earlier in
the day on Annunciation Road. However, Moschella testified that
she had never seen the alleged robber before and was "positive"
that the alleged robber was not the same person as the shooting
victim, whom she had met in early February of 1993.
The officers also provided descriptions of the bleeding man
and the other man with him. The bleeding man was a "mediumskinned," "thin [B]lack male," standing six feet, one inch tall.
Additionally, the officers estimated he was from twenty-three to
twenty-five years old. The other man was an approximately
twenty year old Black male, standing about five feet, nine
inches tall, with "medium skin" and "more of a medium build."
This other man was "wearing a black knit cap, black pants, and a
black jacket."
iv. The murder weapon. At trial, defense counsel sought
to elicit on cross-examination of McCarthy that a man named
Brian Johnson had stolen the revolver used in the murder from
his father prior to the murder, that Johnson had it with him
sometime in late February of 1993, and that a friend of Johnson
had access to the gun. In support of this line of questioning,
at sidebar, defense counsel read into the record excerpts of
11
interviews that police conducted with Johnson and his father.
Nonetheless, the trial judge declined to allow this line of
questioning because the implication of Johnson's involvement in
the murder was speculative.
b. Newly discovered and available evidence. i. Annas's
psychiatric hospitalization. Unbeknownst to the defense, on
October 26, 1995, Annas was admitted to Taunton State Hospital,
a psychiatric hospital, pursuant to G. L. c. 123, § 18 (a),
after attempting suicide at the Massachusetts Correctional
Institution, Framingham (MCI-Framingham), and refusing to eat or
drink.7 A psychiatric evaluation from January 31, 1996, revealed
that she had previously been admitted to nine other medical or
mental health facilities for psychiatric hospitalizations. In
one such instance, Annas voluntarily admitted herself to a
mental health center, where, in January 1995, she was found to
have a positive toxicology screen for opiates and cocaine, was
assessed to be depressed, and complained of vague suicidal
ideation. She was diagnosed, both at the time of her January
7 General Laws c. 123, § 18 (a), provides that a person confined in a place of detention may be transferred to a mental health facility if there is reason to believe she is in need of hospitalization because of mental illness. Annas was committed to MCI-Framingham in June 1995 for violating the terms of her probation, which had been imposed as part of her sentence for pleading guilty to larceny. While Annas testified that she was "incarcerated" at the time of the defendant's trial, the jury never learned that she was psychiatrically hospitalized.
12
1996 evaluation and at the time of her admission one year prior,
as suffering from a mixed personality disorder with borderline
and antisocial features. A treatment plan in her medical
records revealed that she similarly had been diagnosed with
antisocial and borderline personality disorder. Her January
1996 psychiatric evaluation also revealed that she had "a long
history of polysubstance abuse, including heroin, cocaine,
alcohol, and marijuana."
On January 10, 1996, the Commonwealth procured a writ of
habeas corpus from the Superior Court to the superintendent of
the Taunton State Hospital to compel Annas's appearance at the
defendant's trial. She was transported from the hospital and
testified at the trial on January 17, 1996. The prosecutor's
file contained a note from McCarthy containing the name and
telephone number of Annas's psychologist at Taunton State
Hospital. However, the Commonwealth did not disclose Annas's
psychiatric hospitalization to the defense. More than a decade
after his convictions, the defendant discovered, with help from
investigative journalists, that Annas was psychiatrically
hospitalized when she testified at the defendant's 1996 trial.
At an evidentiary hearing on the defendant's present motion
for a new trial, two defense experts testified regarding Annas's
mental health conditions. First, Dr. Nancy Franklin -- a
cognitive scientist specializing in human information processing
13
-- testified that Annas's diagnoses are significant to consider
when assessing the risk of misidentification in this case.
Second, Dr. Emily Clionsky -- an internist and psychiatrist who
has published about cognition -- similarly testified that, based
on a review of Annas's medical records, Annas could not have
been a reliable eyewitness. In response, the Commonwealth's
expert, Dr. David Kroll -- a psychiatrist who is board certified
in general adult psychiatry, consultation liaison psychiatry,
and addiction medicine -- testified that nothing in Annas's
medical records points to a major impairment in memory, and
disagreed with Clionsky's conclusion that Annas could not
reliably or accurately make an identification of the shooter.
ii. Third-party culprit evidence. Years after his
convictions, the defendant obtained police reports pursuant to
public records requests. These newly discovered police reports
revealed that on the night of the murder, three men committed an
armed carjacking of a Nissan Maxima "a couple miles away" from
the location of the shooting. The stolen vehicle, a maroon
four-door sedan, generally matched the description of the car
that Annas said was involved in the shooting. The owner of the
stolen Nissan told police that he was forced out of the car at
gunpoint.
Two weeks later, the police located the Nissan while
investigating another crime. After stopping the vehicle, the
14
officers found two occupants inside: Brian Johnson and Anthony
Woods. Police described Johnson as a twenty-four year old Black
male, standing five feet, nine inches tall and weighing 140
pounds, with a slim build, a light complexion, and a scar on the
right side of his forehead. Johnson's booking photograph from
that arrest reveals a healing scar over his right eye, which the
motion judge found was consistent with the head injury that
officers saw on the bleeding man who was robbed on Annunciation
Road on the night of the victim's murder. Police described
Woods as a twenty-two year old Black male, standing five feet,
eleven inches tall and weighing 250 pounds, with a heavy build
and a medium complexion. The motion judge noted, "Woods'[s]
physical description is similar to the description of [the
victim's] shooter,[8] and his booking photograph bears a fairly
close resemblance to [the] defendant."
iii. DNA results. Following the allowance of the
defendant's motion for postconviction forensic testing pursuant
to G. L. c. 278A, in 2015, a private laboratory performed DNA
testing -- not available at the time of trial -- on swabs taken
8 As noted supra, the shooter was variously described as "weighing . . . a hundred and sixty [to] a hundred and eighty pounds," "heavy-set," and "husky." Given these inconsistencies, we do not rely on the motion judge's finding that "Woods'[s] physical description is similar to the description of [the victim's] shooter," where Woods was described by police as weighing 250 pounds.
15
from the lapel and hood area of the victim's red jacket, as well
as swabs taken from the murder weapon. The test results for the
swabs from the murder weapon were inconclusive. However,
testing of the swabs taken from the victim's jacket -- which,
according to Hall's testimony, the shooter had grabbed --revealed a major DNA profile consistent with that of the victim,
while the defendant was excluded as a major contributor. There
were insufficient amounts of DNA detected from the minor
contributor to draw any conclusions.
In 2018, the defendant sent the 2015 DNA data to a DNA
analysis firm for analysis using a different testing software.
The firm's report supported the defendant's exclusion as a
contributor to the DNA samples recovered from the grip,
cylinder, and barrel of the murder weapon; the inner side of the
jacket's right lapel; the outer side of the jacket's left lapel;
and the lower area of the jacket's hood.
c. Procedural history. On October 27, 1993, the defendant
was indicted on one count of murder, in violation of G. L.
c. 265, § 1, and one count of unlawful possession of a firearm,
in violation of G. L. c. 269, § 10 (a). The defendant's first
trial in 1995 resulted in a mistrial after the jury were unable
to reach a verdict.
At the defendant's second trial in January 1996, the
defendant was convicted of murder in the first degree on a
16
theory of deliberate premeditation and unlawful possession of a
firearm. He was sentenced to the mandatory term of life in
prison without the possibility of parole for the murder
conviction and a concurrent term of from four and one-half to
five years in State prison for the firearm conviction. In 1999,
this court affirmed the defendant's convictions. See Pina I,
430 Mass. at 275.
Following his direct appeal, the defendant's first motion
for a new trial, which he filed pro se in 1999, was denied
without a hearing. His second motion for a new trial, filed in
2003, was also denied without a hearing. His petitions to
appeal from the denials of his first and second motions for a
new trial were denied in the county court.
In 2020, Pina filed the instant motion for a new trial. In
2022, the motion judge held an evidentiary hearing that spanned
four days. On February 3, 2025, the motion judge issued a
memorandum and order allowing the motion.9 The Commonwealth
9 In his motion for a new trial, the defendant also argued that research regarding the impact of various mental health disorders on the reliability of eyewitness identifications constituted newly available scientific evidence that raises questions about the eyewitness identifications in this case. The motion judge considered this evidence as one factor, acting in concert with the evidence discussed infra, to support his conclusion that justice may not have been done. See
Commonwealth v. Rosario, 477 Mass. 69, 77-78 (2017). On appeal, the Commonwealth does not raise any arguments with respect to this issue. Accordingly, any such arguments are deemed to be
17
filed a timely notice of appeal and gatekeeper petition pursuant
to G. L. c. 278, § 33E. On June 16, 2025, the single justice
allowed the Commonwealth to appeal to the full court.
2. Discussion. a. Standard of review. "[A] judge 'may
grant a new trial at any time if it appears that justice may not
have been done.'" Commonwealth v. Brescia, 471 Mass. 381, 388
(2015), quoting Mass. R. Crim. P. 30 (b). Such a decision is
"committed to the sound discretion of the judge." Commonwealth
v. Scott, 467 Mass. 336, 344 (2014). In applying the rule
30 (b) standard "rigorously," judges should grant a motion for a
new trial "only if the defendant comes forward with a credible
reason that outweighs the risk of prejudice to the Commonwealth"
(citation omitted). Commonwealth v. Yat Fung Ng, 489 Mass. 242,
248 (2022), S.C., 491 Mass. 247 (2023). Additionally, in "rare
cases," the judge may "look beyond the specific, individual
reasons for granting a new trial to consider how a number of
factors act in concert to cause a substantial risk of a
miscarriage of justice and therefore warrant the granting of a
new trial." Commonwealth v. Rosario, 477 Mass. 69, 77-78
(2017).
"Where the Commonwealth appeals from the grant of a
defendant's motion for a new trial, we consider whether the
waived, and we do not address this issue. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019).
18
judge committed a significant error of law or abuse of
discretion in allowing the defendant's motion." Commonwealth v.
Drayton, 479 Mass. 479, 486 (2018). Abuse of discretion occurs
where a judge makes "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). 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" (citation omitted). Drayton, supra.
Moreover, we consider the record before us in its entirety to
determine whether evidence exists supporting the judge's
decision to grant a defendant's motion for a new trial. See Yat
Fung Ng, 489 Mass. at 248.
b. Annas's hospitalization. The defendant argued in the
present motion for a new trial that Annas's psychiatric
hospitalization and treatment constituted both nondisclosed
exculpatory evidence and newly discovered evidence. While the
motion judge found that the Commonwealth violated its
constitutional obligation to disclose exculpatory evidence, we
analyze the information about Annas's hospitalization as newly
19
discovered evidence instead.10 See Commonwealth v. Bartlett, 465
Mass. 112, 117 (2013) ("We may affirm the ruling on any grounds
supported by the record and the findings of fact").
In order to prevail on a motion for a new trial based on
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.'" Commonwealth v.
Drayton, 473 Mass. 23, 31 (2015) (Drayton I), S.C., 479 Mass.
479 (2018), quoting Commonwealth v. Grace, 397 Mass. 303, 305
(1986). To establish that evidence is newly discovered, the
defendant must show that the evidence "was unknown to the
defendant or trial counsel and not reasonably discoverable at
the time of trial or at an earlier motion for a new trial"
(quotation and citation omitted). Commonwealth v. Ellis, 475
Mass. 459, 472 (2016).
10The Commonwealth does not dispute that the prosecutor was aware at the time of trial that Annas was psychiatrically hospitalized or that this information was not disclosed to the defendant. However, as the Commonwealth points out, the motion judge did not apply the then-applicable discovery protocol to determine whether, if the defendant had known of Annas's hospitalization, he would have been able to obtain access to Annas's privileged treatment records at the time of trial. See Commonwealth v. Bishop, 416 Mass. 169, 179-183 (1993), overruled in part by Commonwealth v. Dwyer, 448 Mass. 122, 139 (2006). We decline to apply this protocol, which has since been replaced, see Dwyer, supra, in the first instance, or remand the case to the motion judge to apply it, where our analysis of the medical records as newly discovered evidence obviates any need to do so.
20
Here, the Commonwealth does not dispute on appeal that
Annas's hospitalization and treatment qualify as newly
discovered evidence. Indeed, as the motion judge found, the
defense did not know that Annas was psychiatrically hospitalized
at the time of trial. It was not until more than a decade after
his convictions that the defendant discovered that Annas was
psychiatrically hospitalized, and he did not discover her
treatment records until 2021 -- long after both his trial in
1996 and his last motion for a new trial in 2003.
The question then becomes whether the newly discovered
evidence casts real doubt on the justice of the convictions.
See Drayton I, 473 Mass. at 31. In determining whether newly
discovered evidence casts real doubt on the justice of the
convictions, "[t]he inquiry is not whether the verdict[s] would
have been different, but rather whether the new evidence would
probably have been a real factor in the jury's deliberations"
(quotation and citation omitted). Commonwealth v. Bateman, 497
Mass. 169, 183 (2026).11
11In determining whether the failure to disclose Annas's hospitalization prejudiced the defendant, the motion judge applied this same standard applicable to newly discovered evidence. See Commonwealth v. Barry, 481 Mass. 388, 399–400, cert. denied, 589 U.S. 941 (2019) (where no specific request for particular evidence is made, prejudice from nondisclosed evidence is determined using same standard as for newly discovered evidence). See also Commonwealth v. Caldwell, 487 Mass. 370, 377 (2021) (where no specific request is made, we
21
Here, the motion judge determined that the defendant could
have used Annas's hospitalization and treatment as impeachment
evidence at trial, reasoning that the defense "would have surely
brought out the fact of [Annas's] hospitalization as a basis to
attack her credibility." The motion judge further reasoned that
the treatment records "would have revealed Annas'[s] long
history of mental health hospitalizations and diagnoses,
including diagnoses which raise questions about the reliability
of her eyewitness identification."
Although we have said that "[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.
Pope, 489 Mass. 790, 801 (2022), quoting Commonwealth v.
Sullivan, 478 Mass. 369, 383 (2017), "[w]e have never adopted an
inflexible rule that newly discovered evidence that merely . . .
impeaches a witness's testimony is an insufficient basis for a
motion for a new trial," Pope, supra at 802, quoting
Commonwealth v. Cowels, 470 Mass. 607, 621 (2015). Rather, we
"consider[] the particularities of the scope and impact of that
evidence and, importantly, the strength of the Commonwealth's
case." Pope, supra.
ask, "[W]ould it have been a real factor in the jury's deliberations?" [citation omitted]).
22
Annas's treatment records reveal multiple diagnoses,
including borderline personality disorder, antisocial
personality disorder, and mixed personality disorder with
antisocial and borderline features.12 The motion judge
explicitly credited the testimony and report of the defendant's
expert, Franklin, who reviewed these records. Franklin
testified that borderline personality disorder can increase the
risk of misidentification because individuals with this disorder
are at a heightened risk of suggestibility and "respond very
strongly in memory situations to emotional information," which
can lead to a "detriment of processing of details." She further
noted that this increased risk of misidentification and greater
suggestibility have been found even when individuals are
euthymic, meaning when they are not manifesting active symptoms
of borderline personality.
Given this evidence, the motion judge did not abuse his
discretion in finding that the defendant could have used Annas's
history of mental health hospitalizations and diagnoses to
attack her credibility and the reliability of her eyewitness
identification. As we have long held, "mental impairment, as
well as habitual intoxication and drug addiction, may be the
12Annas's treatment records were impounded. "The
impoundment is lifted as to the information in the opinion, to the extent necessary in resolving the case." Commonwealth v. Gelin, 494 Mass. 777, 779 n.5 (2024).
23
subject of proper impeachment if it is shown that such factors
affect the witness's capacity to perceive, remember, and
articulate correctly." Commonwealth v. Caine, 366 Mass. 366,
369 (1974). See Commonwealth v. Figueroa, 413 Mass. 193, 203
(1992), S.C., 422 Mass. 72 (1996) (where witness is suffering
from mental impairment, "evidence of how that impairment might
affect her capacity to perceive, remember and articulate the
alleged events . . . can be used to impeach the [witness's]
credibility"). Given the evidence linking information contained
in the treatment records to Annas's capacity to perceive,
remember, and articulate the alleged events, the records hold
impeachment value.
Nevertheless, the Commonwealth contends that given the
strength of its case against the defendant, evidence of Annas's
psychiatric hospitalization and treatment would not have been a
real factor in the jury's deliberations. Specifically, the
Commonwealth points to a number of factors that it claims
support Annas's identification of the defendant. First, the
Commonwealth emphasizes the fact that Annas knew the defendant
for one and one-half to two years prior to the shooting and
bought drugs from him every night in February 1993. Next, it
points out that Annas's descriptions of the incident and the
shooter were generally consistent with those of Hall. Finally,
it notes that Annas's testimony at trial was consistent with the
24
information she provided to police around the time of the
shooting and during the defendant's first trial, both of which
preceded her admission to Taunton State Hospital.
None of these arguments convinces us that the motion judge
abused his discretion. First, Annas's familiarity with the
defendant did not insulate her from misidentification. Franklin
testified,
"[P]eople make about five times the number of
misidentifications for someone who is only a casual
acquaintance versus someone who is a member of one's family
or one's best friend. They make about five times the
number of misidentifications for a next-door neighbor as
compared with someone in one's family or one's best
friend."
Next, while it is true that Annas's description of the
incident and the shooter bore similarities to those of Hall, it
is also true, as the motion judge noted, that "Hall's testimony
differed materially from Annas's testimony in many regards."
The motion judge wrote:
"Hall did not describe any involvement by a car, did not
describe any type of argument, did not describe the shooter
encountering [the victim] more than once, did not observe
the shooter to approach [the victim] 'really fast,' and did
not see the shooter in possession of a gun before the
shooter grabbed [the victim] and removed an object from his
(the shooter's) pocket."
The motion judge also noted various issues with Hall's
identification, including his equivocal photographic
identification of the defendant on the night of the shooting and
inconsistency between Hall's testimony and an officer's
25
testimony regarding the number of photographs in the
photographic array.
Additionally, although Annas had not yet been admitted to
Taunton State Hospital at the time of the shooting or during the
defendant's first trial, this does not necessarily mean that
Annas did not suffer from her psychiatric conditions at the time
of the shooting. The motion judge noted, "Annas reported to the
Taunton State Hospital that she had previously been admitted to
no less than nine other medical or mental health facilities for
psychiatric hospitalizations." Among these prior
hospitalizations, Annas was reportedly committed to a mental
health center years prior to the shooting and admitted herself
voluntarily to the same mental health center about two months
before the defendant's first trial.
Lastly, and importantly, with respect to the strength of
the Commonwealth's case, see Pope, 489 Mass. at 802, and the
importance of Annas's testimony, the motion judge noted:
"This is not a situation where there was a mountain of
other evidence available to convict [the] defendant. Annas
was the key to the Commonwealth's case. There was no
forensic, video, photographic or other hard evidence
linking [the] defendant to the shooting. There was no
evidence that [the] defendant knew [the victim] or had any
motive to shoot [him].[13] Undermining Annas'[s] credibility
was crucial to the defense."
13 The Commonwealth contends that there was evidence the defendant knew the victim and had a motive to shoot him, pointing to our recitation of facts in Pina I, 430 Mass. at 268, where we mentioned a purported argument between the defendant
26
"[I]n rare cases, a new trial may be warranted '[w]here 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,'" Cowels, 470 Mass.
at 621, quoting Commonwealth v. Liebman, 388 Mass. 483, 489
(1983). Cf. Gaines, 494 Mass. at 542 ("The defendant's
inability to challenge the credibility of a key witness who
placed the defendant near the scene of the crimes on the day of
the shooting raised a substantial risk that the jury would have
reached a different conclusion if the evidence had been admitted
at trial" [quotation and citation omitted]); Commonwealth v.
Caldwell, 487 Mass. 370, 377 (2021) (evidence would have been
real factor in jury's deliberations because it "would have
provided the defendant with the strongest available basis for
impeaching the credibility of [a] critical witness").
Here, there is no question that the Commonwealth's case
depended heavily on Annas's testimony. As for whether the
treatment records so seriously undermine the credibility of
Annas's testimony that they warrant a new trial, the
and the victim over "money, a ring, drugs, and 'business.'" But the Commonwealth fails to mention that the witness who overheard the alleged argument was Annas -- the same witness whose reliability is in question. Treating this as evidence that the defendant knew the victim and had a motive to shoot him presupposes that Annas correctly identified the defendant as the shooter.
27
Commonwealth emphasizes portions of the records that would
suggest her psychiatric conditions did not affect her capacity
to perceive or remember the alleged shooting. For example, in
one report, a psychologist found that Annas had "no apparent
immediate, delayed, recent, or remote impairments" to her
memory, exhibited "normal" attention and concentration, lacked
any disturbances in sensory perception, and was "fully oriented
to time, place, person, situation, familiar objects, and other
people."
We need not decide whether the treatment records are
sufficient on their own to warrant a new trial. The motion
judge treated this evidence as one of the "factors act[ing] in
concert to cause a substantial risk of a miscarriage of
justice." Rosario, 477 Mass. at 77-78. It was not an abuse of
discretion for him to do so. That is, it was proper to consider
the evidence relating to Annas's psychiatric hospitalization as
part of the basis for ordering a new trial.
c. Third-party culprit evidence. Because the motion judge
could not definitively determine whether the third-party culprit
evidence concerning the carjacking on the night of the murder
was known to the prosecution team, he analyzed the material as
newly discovered evidence rather than evidence that the
prosecution failed to disclose. In so doing, he found the
third-party culprit evidence "would have supplied missing links
28
between Johnson, the Annunciation Road robbery, and [the
victim's] shooting," which would have allowed the defendant to
introduce evidence about the murder weapon that the judge ruled
inadmissible at trial.
On appeal, the Commonwealth does not contest the motion
judge's finding that the third-party culprit evidence was newly
discovered. Instead, it contends that the motion judge erred in
concluding that such evidence casts real doubt on the justice of
the defendant's convictions because the shooting occurred prior
to the carjacking and, as such, the shooter could not have used
the stolen vehicle to arrive at the murder scene. We disagree.
To be sure, there does appear to be a discrepancy in timing
when cross-referencing records concerning the stolen vehicle
with evidence at trial concerning the shooting. According to a
stolen vehicle report, the Nissan was stolen between 9:30 and 10
P.M. on February 26, 1993. Comparatively, the evidence at trial
placed the shooting of the victim up to ninety minutes earlier
that day -- between 8:30 and 9 P.M.
Certainly, this timing discrepancy may weaken a third-party
culprit defense that Johnson, Woods, or the other occupant of
the stolen Nissan was involved in the shooting. But it does not
mean that the motion judge abused his discretion in concluding
that the newly discovered evidence casts real doubt on the
justice of the defendant's convictions -- particularly where the
29
motion judge addressed the timing issue. He found, "Given when,
how, and by whom the car theft was reported, there are reasons
to believe that the precise time that the Nissan was stolen is
in question." The motion judge based this on the fact that the
police had difficulty understanding the victim of the car theft14
and on inconsistencies in the records related to the timing and
other details of the theft.15 Thus, the motion judge was not
obligated to find, as the Commonwealth argues, that the theft
must have occurred after the shooting.
Notwithstanding this conflicting evidence, the motion judge
properly determined that the newly discovered evidence "probably
14The motion judge found that there was "some indication" that the carjacking victim "had some difficulty speaking English." The Commonwealth argues that this finding is clearly erroneous because there was no evidence the victim "had trouble with English." We agree that there is no evidence that the difficulty in understanding the victim of the car theft was the result of a language barrier. But whether the difficulty in understanding the victim came from a language barrier or other speech-related issues is immaterial. The record includes an officer's handwritten note indicating that the officer "couldn't understand a word [the victim] was saying." The judge was entitled to infer that the timing of the car theft was uncertain based on the record before him, including evidence that there may have been difficulty in understanding the victim.
15The stolen vehicle report states that the victim of the carjacking reported the crime to police at about 10:40 P.M. The report states that the car was last seen at 9:30 P.M. and discovered stolen at 10 P.M. on February 26, 1993. However, given that the victim of the carjacking was forced out of the car at gunpoint, the time the car was last seen and the time it was discovered stolen would have logically been the same. Moreover, the stolen vehicle report erroneously lists the "Date of Theft" as February 27, 1993, rather than the day prior.
30
would have been a real factor in the jury's deliberations"
(citation omitted), Drayton I, 473 Mass. at 31, based on other
details concerning Johnson, Woods, and the stolen Nissan. As
the motion judge found, approximately two weeks after the
shooting, Johnson and Woods were discovered in the stolen
Nissan. The Nissan had reportedly been stolen by three men near
the location of the shooting, on the same day of the shooting,
and matched the general description at trial of the shooter's
vehicle, which had also been occupied by three individuals.
Further, physical descriptions provided bases to
potentially link both Johnson and the shooting victim to the
Annunciation Road robbery on the day of the murder. At the time
of his arrest, Johnson had a scar over his right eye, which was
consistent with the injury police observed on the bleeding man
who had been robbed on Annunciation Road. Additionally, the
description of the perpetrator of the Annunciation Road robbery,
which was committed several hours before the shooting, was
consistent with that of the victim of the shooting.
The motion judge determined,
"These facts, coupled with the fact that Johnson had stolen
and possessed the murder weapon, suggested a link between
Johnson, the Annunciation Road robbery, and the shooting of
[the victim]. This inferential link was strengthened by
the trial testimony itself: (i) that the police reported
that the victim of the shooting (Robinson) may have been,
or may have been confused for (indeed, the police at least
initially confused him for), the Annunciation Road robber;
and (ii) the victims of the Annunciation Road robbery
31
refused to cooperate with the police[,] and one said[,]
'I'll take care of it myself.'"
In the absence of this link, the defendant was barred from
introducing evidence that Johnson had stolen the murder weapon
from his father prior to the murder and that he had it with him
sometime in late February 1993. The newly discovered evidence
would have provided a nonspeculative basis for the defendant's
theories of a third-party culprit. The motion judge
appropriately concluded, "Such information would have likely
caused the court to admit the evidence about Johnson having
possessed the murder weapon in late February."
Thus, given the foregoing, the motion judge did not abuse
his discretion in finding that the newly discovered third-party
culprit evidence casts real doubt on the justice of the
defendant's convictions.
d. DNA evidence. Finally, we consider the Commonwealth's
argument as to the newly available DNA evidence, which the
motion judge found "was only discoverable with the aid of
scientific techniques and data analysis tools developed long
after [the] defendant's trial and after his second motion for a
new trial." While determining that the DNA evidence would not
have been sufficient to justify a new trial on its own, the
motion judge nonetheless considered it to "marginally further
32
support[]" his conclusion that justice may not have been done.
See Rosario, 477 Mass. at 77-78.
The Commonwealth argues that the motion judge erred by
making factual findings regarding the DNA testing without
holding an evidentiary hearing where the Commonwealth could
have, through cross-examination and calling its own witnesses,
challenged the defendant's factual assertions or their
significance.
In adjudicating a motion for a new trial, "[t]he 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) (3). "When a substantial
issue has been raised, and supported by a substantial
evidentiary showing, however, the judge should hold an
evidentiary hearing" (quotations and citation omitted). Drayton
I, 473 Mass. at 31. While rule 30 (c) "encourages the denial of
a motion for a new trial on the papers, without hearing, where
no substantial issue is raised[,] . . . [a] judge's power to
grant such a motion on the papers is more circumscribed."
Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). That
power may be exercised where "the substantial issue raised is
solely a question of law, or if the facts are undisputed in the
record." Id. at 395.
33
Here, the Commonwealth never requested live testimony on
the DNA evidence. At a status conference on March 31, 2022, the
judge and the parties explicitly discussed the scope of evidence
that would be considered in the evidentiary hearing. The judge
expressed that he was not inclined to hear live testimony on the
DNA evidence, suggesting instead that he could rely "entirely on
the papers," which included reports from the testing
laboratories along with any expert affidavits submitted by the
parties. Not only did the Commonwealth not object to this
proposal, but it also assented to the submission of exhibits
that included expert affidavits from both the defense and the
Commonwealth on the DNA evidence.
"[A] claim is procedurally waived whenever a litigant fails
to make a timely objection" (quotation and citation omitted).
Commonwealth v. Robinson, 480 Mass. 146, 150 (2018), S.C., 493
Mass. 303 (2024). The Commonwealth -- having had an opportunity
to object to the motion judge's decision not to hear live
testimony on this issue but having failed to do so -- cannot now
turn around and say that it was an abuse of discretion to make
factual findings without hearing live testimony on the DNA
evidence. See Commonwealth v. Mauricio, 477 Mass. 588, 594
(2017) (declining to address merits of issue where Commonwealth
did not raise issue below and, thus, merits of issue were not
34
"meaningfully addressed" during motion hearing); Commonwealth v.
Leslie, 477 Mass. 48, 58 (2017) (same).
3. Conclusion. For the foregoing reasons, we hold that
the motion judge did not commit a significant error of law or
abuse his discretion in concluding that the newly discovered and
newly available evidence casts real doubt on the justice of the
defendant's convictions and that, therefore, the defendant is
entitled to a new trial. We affirm the order allowing the
defendant's motion for a new trial and remand the matter to the
Superior Court for a new trial if the Commonwealth chooses to
pursue one.
So ordered.