Commonwealth v. Sullivan

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SJC-11504

COMMONWEALTH vs. MICHAEL J. SULLIVAN.

Middlesex. April 10, 2014. - August 15, 2014.

Present: Ireland, C.J., Spina, Cordy, Gants, & Duffly, JJ.1

Homicide. Practice, Criminal, Capital case, New trial.
Evidence, Scientific test, Exculpatory.

Indictments found and returned in the Superior Court
Department on April 24, 1986, and May 14, 1986, respectively.

A motion for a new trial, filed on March 9, 2012, was heard
by Kathe M. Tuttman, J.

A request for leave to appeal was allowed by Spina, J., in
the Supreme Judicial Court for the county of Suffolk.

Robert J. Bender, Assistant District Attorney (Steven C.
Hoctor, Assistant District Attorney, with him) for the
Commonwealth.
Dana Alan Curhan for the defendant.

SPINA, J. The defendant, Michael J. Sullivan, was

convicted by a jury in Superior Court of murder in the first

1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
 2

degree and armed robbery arising out of the brutal stomping

death of Wilfred McGrath. We affirmed the defendant's

convictions on direct appeal. Commonwealth v. Sullivan, 410

Mass. 521, 533 (1991). Since then, the defendant has sought

postconviction relief both in State and Federal courts.2 At

issue in this case is the defendant's most recent motion for a

new trial. As a result of the reexamination by a private

forensic laboratory of certain physical evidence from the

defendant's trial, which revealed that the victim's blood was

not present on a jacket purportedly worn by the defendant during

the killing, the defendant filed a motion for a new trial based

2
The defendant filed his first motion for a new trial in
1993 alleging ineffective assistance of counsel. The motion was
denied by the trial judge, and the defendant's subsequent
application for leave to appeal the ruling was denied by a
single justice of this court. In 1996, the defendant filed a
petition for a writ of habeas corpus in the United States
District Court for the District of Massachusetts, which also was
denied. The defendant pursued further litigation of the
petition in the United States Court of Appeals for the First
Circuit, which ordered in 2002 that any further Federal
proceedings be stayed to allow the defendant to exhaust certain
claims in State court. The defendant thereafter filed a second
motion for a new trial in Superior Court in 2008 and, along with
that motion, requested funds to permit further scientific
testing of a jacket belonging to the defendant and a hair found
in the pocket of that jacket. The defendant's motion for a new
trial was denied on the merits by a judge in the Superior Court,
and the defendant's subsequent application for leave to appeal
was denied by a single justice of this court. In 2010, the
defendant renewed his request for funds for testing of the
jacket. The judge denied the motion for funds but allowed the
motion for retesting once informed that the Committee for Public
Counsel Services Innocence Program was willing to provide funds
for scientific analysis in a private laboratory.
 3

on newly available evidence. The motion judge3 granted the

defendant's motion, and the Commonwealth sought leave to appeal

from a single justice of this court. The Commonwealth's

application was granted, and the Commonwealth argues on appeal

that the motion judge erred in concluding that the jacket was a

key piece of corroborative evidence in the case against the

defendant and that the newly available evidence arising from the

retesting of the jacket casts real doubt on the justice of the

defendant's conviction. We agree with the motion judge, and we

affirm the order granting the defendant's motion for a new

trial.

1. Facts. The facts surrounding the killing of the victim

are set forth in detail in Sullivan, 410 Mass. at 522-523. We

summarize those facts here and supplement them with other

relevant facts from the trial record and the facts found by the

motion judge to be significant with respect to the defendant's

motion for a new trial, all of which are supported by the

record.

In the early morning hours of March 7, 1986, the victim,

Wilfred McGrath, was murdered by kicking and stomping in the

apartment of an individual named Gary Grace. Id. The victim's

body was looted for drugs, money, and jewelry, including a watch

3
As the trial judge had retired, the motion judge was not
the trial judge.
 4

and gold chains. Id. at 523. The victim's body was then

transported in the trunk of the defendant's car and left in an

alley behind an abandoned grocery store, where it was discovered

close to eighteen hours later, after midnight on March 8. At

trial, none of these facts was disputed. The defendant granted

in his closing argument that the key issue in dispute was

whether the defendant was present and participated in the

beating and robbery of the victim.

At trial, the prosecution and the defense each presented

the testimony of a witness who admitted to being present during

the killing. However, the witnesses' respective accounts of the

killing "diverged sharply." Id. at 522-523. One witness

testified that the defendant kicked and stomped the victim to

death. Id. The other testified that the defendant was not even

present at the scene. Id. at 523.

Grace served as the key prosecution witness. See id. at

522. The jury heard evidence that Grace had entered into a plea

agreement with the Commonwealth which provided that in exchange

for truthful testimony at the defendant's trial, the

Commonwealth would withdraw the indictments charging murder and

armed robbery then pending against Grace for his involvement in

the killing of McGrath and instead seek an indictment charging

accessory after the fact, to which Grace would plead guilty and
 5

for which the Commonwealth would recommend a sentence of six to

seven years. Id. at 523-524.

Over four days of testimony, including almost two days of

cross-examination, Grace testified in detail to the

circumstances of McGrath's death. He testified that on the

evening of March 6, 1986, he slept alone in his apartment and

was awakened by a knock at his door at approximately 7 or 8 A.M.

The defendant, along with Emil Petrla and Steven Angier, all

people Grace knew, had arrived at Grace's apartment.

Accompanying them was the victim, whom Grace testified he had

not met before. Grace testified that the defendant was wearing

sneakers, jeans, and a purple jacket. Petrla was wearing dress

shoes, dress pants, a white sweater, and a black jacket. Angier

was wearing sneakers, sweat pants, and a sweat shirt. Grace was

initially wearing only his underclothes when he answered the

door but subsequently put on pants, a shirt, and a pair of

sneakers.

As Grace began to wash up in the bathroom of his apartment,

the other four men sat in Grace's kitchen, drinking beer and

using cocaine as the defendant and the victim discussed a

potential arrangement for the sale of drugs. At different

points, the defendant and Petrla each informed Grace that they

were planning to rob the victim. Despite Grace's requests that

they not do so in his apartment, Petrla wrapped a belt around
 6

his hand and struck the victim in the head three times. The

victim then either was pulled or fell to the floor. Grace also

testified that once the victim was on the floor, Petrla kicked

the victim three to four times. The defendant then commenced

kicking and stomping the victim's head repeatedly, even after

the victim was unconscious, and despite Grace's, and eventually

Petrla's, attempts to stop him.

Grace further testified that after the beating, the victim

lay unconscious on the floor and appeared dead. There were

puddles of blood on the floor, blood on the walls, and blood on

the stove. Grace testified that the defendant at one point

ripped gold chains off the victim's neck with such force that

the victim's body was lifted off the ground. The defendant,

Petrla, and Angier also searched the victim's pockets, splitting

the cash they found among the three of them. According to

Grace's testimony, Petrla also took a gold watch from the

victim's body.

Grace then insisted that the men remove the victim's body

from his apartment. Grace, Petrla, and Angier wrapped the body

in a quilt from Grace's bed along with towels from Grace's

bathroom while the defendant went outside to move his car. The

three men then helped the defendant empty his trunk, and with

the defendant in the driver's seat, Petrla, Angier, and Grace

placed the victim's body in the trunk.
 7

According to Grace's testimony, the defendant drove the car

with Petrla riding in the passenger seat, Grace behind the

defendant, and Angier behind Petrla. The four men drove

together first to the area behind the abandoned grocery store

where Petrla, Angier, and the defendant removed the body from

the trunk, and then they drove to a car wash where the four men

attempted to clean the interior and exterior of the car. After

leaving the car wash, while still driving, the defendant removed

one of his sneakers and threw it out the window. He attempted

to throw the other one out, but Petrla stopped him from drawing

attention to the car.

The four men then stopped at a liquor store to purchase

beer, and then at an apartment to purchase cocaine. At

approximately 10:30 A.M., they arrived at the defendant's

apartment, which he shared with his sister, Kathy Sullivan.

Grace further testified that later that afternoon, he saw the

defendant, Petrla, and the defendant's sister, Kathy, go into a

bedroom in the apartment. When they emerged fifteen to twenty

minutes later, Kathy was crying. While she was washing dishes

over the sink, the defendant told her not to worry and to "stick

by your brother no matter what." Finally, Grace testified that

after the killing, he saw Petrla wearing the victim's watch and

that Petrla then told him of his plan to sell the watch for

cocaine.
 8

Testimonial evidence presented at trial tended to

corroborate Grace's version of the events surrounding the

victim's death. First, the investigation had established that

the night before his death, the victim had been out at a local

bar called Mallet where he was with the defendant's sister,

Kathy. The victim and Kathy went to some other bars with an

acquaintance before being dropped off by a friend of the

victim's at Kathy's apartment at approximately 3:30 A.M. on

March 7. At 3:30 A.M., Kathy's niece, Kimberly Sullivan, called

the apartment and spoke to Kathy. Kimberly then arrived at the

apartment sometime between 3:30 and 4 A.M. Kathy, Kimberly, and

the victim sat in the living room until the victim departed at

approximately 6 A.M.

Although Kimberly did not see the defendant during that

time, she saw that the defendant's bedroom door was closed, and

she saw Kathy's young son, whom the defendant had been

babysitting that evening. Kimberly also testified that she saw

the victim leave the apartment at approximately 6 A.M. and that

she saw the defendant leave sometime after that. She testified

that it was light out when the defendant left, although she was

not certain whether the defendant left shortly after the victim

or closer to two hours later at 8 A.M. Kimberly further

testified that hours later, around 10:30 A.M., the defendant

returned to the apartment with Grace, Petrla, and Angier.
 9

According to Kimberly's testimony it appeared that the four men

arrived together, and they were carrying beer with them. She

also testified that Grace and Angier were wearing sneakers on

their feet and that Petrla was wearing dress shoes. Unlike

Grace, however, Kimberly testified that the defendant was

wearing boots while he was in the apartment, although she also

testified that the defendant usually wore boots, and she did not

have a strong memory of what he had on his feet when she saw him

arrive at the apartment.

Evidence regarding the victim's activities leading up to

his death, combined with Kimberly's testimony, provided an

explanation as to how the victim could have come to be in the

presence of the defendant in the early morning of March 7 when

he arrived at Grace's apartment. Additionally, Kimberly's

testimony was consistent with Grace's as to the time that the

men arrived at the apartment, what the men were wearing on their

feet, and the fact that they were carrying beer with them. Like

Grace, Kimberly also testified that later in the afternoon on

March 8, she saw her aunt, Kathy, washing dishes in the kitchen

with tears in her eyes and heard the defendant say to her,

"Don't worry about it."

Physical evidence presented to the jury also corroborated

certain details of Grace's testimony. The medical examiner

testified that the victim was likely killed between 6 A.M. and
 10

10 A.M. on March 7 and that two distinct wound patterns appeared

on the victim's skull. On one side were wounds consistent with

the victim having been kicked with a dress shoe, and on the

other side were more severe blows consistent with a sneaker.

Additionally, Grace testified that at one point the defendant

was stomping the victim's head so intensely that he was using

two feet, almost standing on the victim's head. This testimony

was corroborated by an injury that the medical examiner

described as almost a puncture wound or a "cut out" consistent

with the heel of a sneaker on the right side of the victim's

skull.

Certain blood evidence in the apartment and the car was

also consistent with Grace's testimony. Grace testified that

the defendant kicked the victim with such force that at one

point the defendant had to steady himself against the stove.

The State chemist who processed Grace's apartment testified that

the underside of the stove handles tested positive for blood.

Additionally, trace evidence of blood was found in several

places in the defendant's car, including on the steering wheel,

on the turn signal lever, on both the brake and accelerator

pedals, on the passenger seat on the back of the headrest, and

on the passenger side window and door frame. The State chemist

also testified that he identified what appeared to be an imprint

consistent with the sole of a sneaker on the quilt in which the
 11

victim's body had been wrapped. He opined that the imprint

appeared to him to be consistent with the sole of the sneakers

Angier was wearing upon his arrest. The instep of Angier's left

sneaker also tested positive for trace evidence of blood.

Finally, the chemist testified regarding a purple jacket

that was obtained from the defendant's sister-in-law on the day

of his arrest and which Grace identified as the same one the

defendant was wearing during the killing. First, the chemist

testified that blood was detected on both cuff areas of the

jacket. Second, he testified that a hair was found in a pocket

of the jacket and that the hair was, in his opinion,

"consistent" with that of the victim. This physical evidence

served to tie the defendant to the scene of the killing and

could have corroborated Grace's claim that the defendant ripped

chains from the victim's neck and went through his pockets after

the beating.

However, not all of the evidence presented to the jury

corroborated Grace's testimony. Emil Petrla testified on behalf

of the defendant. Petrla had no plea arrangement with the

Commonwealth and his own trial for murder in the first degree

for the killing of the victim had not yet taken place.

Nonetheless, Petrla waived his right under the Fifth Amendment

to the United States Constitution to avoid self-incrimination

and testified that although he was present during the killing of
 12

the victim, neither the defendant nor Angier was present, and

Grace was in fact the person who delivered the kicks that

ultimately crushed the victim's skull.4

Petrla's testimony comported with the timeline established

by the police investigation and other testimony, yet his version

of events was quite different from that presented by Grace.

Petrla testified that on the evening of March 6 the defendant

was babysitting his nephew, so Petrla borrowed the defendant's

car.5 From the evening of March 6 until the early morning of

March 7, Petrla and Grace were together. Petrla picked up Grace

at his apartment, and the two drove first to Mallet, where Grace

purchased cocaine; then to a liquor store; and then back to

Grace's apartment, where they remained for the evening.

Sometime between 5:30 and 6 A.M. on March 7, the two men

left Grace's apartment and drove toward the defendant's

apartment in order to return the car to the defendant before he

4
Petrla also submitted an affidavit in support of the
defendant's motion for a new trial in which he stated that,
"[t]o this day," he maintains that his trial testimony was "true
and accurate." After the defendant's trial, Petrla entered a
plea of guilty to a charge of murder in the second degree based
on his own involvement in the killing, and Petrla remains in
prison. He further stated in his affidavit, "I have nothing to
gain by making something up that is not true about [the
defendant's] involvement or lack of involvement in the killing."
5
Petrla testified that at the time of the killing, Petrla
had been staying with the defendant in the Sullivan apartment
and that the defendant had given Petrla the second set of keys
to his car, permitting Petrla to use the car whenever the
defendant did not need it himself.
 13

needed it for work. As they drove toward the defendant's

apartment, Grace noticed the victim waiting by a taxicab stand.

Petrla testified that he did not know the victim, but that Grace

called him by name and invited him into the car. The three men

then reversed direction and returned to Grace's apartment, where

Grace asked the victim to provide him with cocaine. The victim

did so, and Grace went into his bathroom to use the cocaine.

Petrla testified that Grace then emerged from the bathroom

screaming at the victim about the poor quality of the cocaine.

The victim and Grace then began screaming at each other, and

punches were thrown, at which point Grace was knocked to the

ground. Petrla testified that in order to help Grace, he

grabbed a nearby belt, wrapped it around his hand, and punched

the victim in the head, which knocked him to the ground near the

stove. Petrla then kicked the victim a few times, at which

point Grace became so enraged that he began kicking and stomping

the victim's head repeatedly until Petrla stopped him. Petrla

testified that after the beating, Grace was the one who searched

the victim's pockets, taking cocaine, money, and the victim's

gold chains and watch, and that Grace and Petrla alone disposed

of the body using the defendant's car.

According to Petrla, after he and Grace left the body

behind the abandoned grocery store and proceeded to the car wash

where they cleaned the defendant's car, the two men returned to
 14

the neighborhood of the Sullivan apartment where they

encountered the defendant and Angier outside on the street. The

four men then proceeded together into the Sullivan apartment,

and all four used cocaine in the defendant's bedroom. After

Grace botched an attempt to use cocaine intravenously, resulting

in blood spraying on the defendant's ceiling, the defendant

asked him to leave the apartment. According to Petrla, Grace

did not return to the Sullivan apartment that day. Petrla

testified that some days later, however, he accompanied Grace to

the apartment of a woman named Rosemary Squires-Clark to whom

Grace sold the victim's watch.

Certain evidence presented at trial also corroborated

Petrla's version of events. The defense presented the testimony

of both Rosemary Squires-Clark and her seventeen year old son,

John Squires, regarding the victim's watch. John Squires

testified that he knew Grace and that Grace approached him and

offered to sell him the watch, at which point Squires told Grace

that he was interested in purchasing it, but that Grace would

have to come back when his mother was home. Additionally,

Squires-Clark testified that she purchased the watch from Grace,

not Petrla, and that at the time she purchased it, Grace came

into her bedroom alone with the watch and stated to her, "Don't

tell anybody I got it off him, I don't want to hurt anybody's

feelings." Evidence was further presented that Squires-Clark
 15

identified Grace as the person who sold her the watch in a

photographic array soon after she turned the watch over to the

police. Additionally, the jury heard evidence that two of

Grace's bloody fingerprints were found on the inside of the

passenger-side window of the defendant's car. This evidence

corroborated Petrla's testimony that he was driving the

defendant's car with Grace riding in the passenger seat, and it

undermines Grace's testimony that he rode in the rear of the car

on the driver's side.

Petrla's testimony also was undermined by certain evidence

presented at trial. The prosecution elicited from Petrla on

cross-examination that in the year between the killing and the

defendant's trial, Petrla and the defendant had been housed in

the same jail, on the same floor. Petrla testified that he and

the defendant ate their meals together and spent recreation time

together, and that since the trial had commenced he and the

defendant had spoken daily about its progress. Therefore, the

prosecution raised the inference that Petrla and the defendant

had concocted a plausible alternative version of events to

exculpate the defendant. However, no evidence was presented to

explain why Petrla would testify falsely on behalf of the

defendant only to admit to his own involvement in a brutal

robbery and killing. Additionally, Petrla admitted that he was

wearing dress shoes when the victim was killed. However, he
 16

testified that Grace was wearing work boots, not sneakers.

Petrla also testified that Grace did not return to the Sullivan

apartment on the afternoon of March 7. However, Grace's

testimony was consistent with Kimberly Sullivan's regarding

seeing Kathy Sullivan in tears while washing dishes that

afternoon.

Ultimately, the parties each acknowledged that the case

came down to an evaluation of the credibility of the two key

witnesses: Grace and Petrla. In closing, defense counsel began

by seeking to undermine the strength of the evidence related to

the defendant's purple jacket, asking why, if the defendant were

truly the killer, there was not more blood on the jacket in

light of the amount of blood at the scene, and why the defendant

would not have disposed of the jacket between the time of the

killing on March 7 and his arrest on March 24. Further, defense

counsel sought to undermine the chemist's testimony that the

hair in the jacket pocket was consistent with the victim's by

describing numerous weaknesses in hair comparison methodology

and reminding the jury that the hair had not been compared to

any other people with whom the defendant had contact, such as

his sister or niece or girlfriend. Counsel used the remainder

of closing to emphasize the reasons that the jury should not

credit Grace's testimony and reminded the jury that unlike
 17

Grace, Petrla had no plea arrangement and testified against his

own penal interest.

The prosecution, in contrast, spoke at length about the

reasons to believe Grace over Petrla. The prosecutor emphasized

that Grace had given consistent statements regarding the major

details of the crime from his first statement the day he was

arrested, to a letter he wrote approximately one month later

detailing the killings, and throughout his lengthy trial

testimony. The prosecutor also described Petrla's testimony as

a "chain of incredible coincidences." Further, the prosecution

repeatedly emphasized the consistency between Grace's version of

events and the physical evidence, including the blood on the

rear of the headrest and the door jambs of the defendant's car,

the bloody footprint on the quilt found with the victim's body

which appeared consistent with Angier's sneakers, and the blood

on the cuffs of the purple jacket and the hair found in the

pocket which the prosecution argued tied the defendant directly

to the crime.

Ultimately, the jury appear to have credited Grace's

testimony over Petrla's as they found the defendant guilty of

armed robbery and murder in the first degree.

2. Newly available evidence. In 2011, the defendant's

motion for scientific testing of the purple jacket was granted.

The jacket was analyzed once again by the State police crime
 18

laboratory, and cuttings of the jacket cuffs as well as the hair

fragment were submitted to a private laboratory for scientific

analysis, including the comparison of deoxyribonucleic acid

(DNA) profiles.

The State police crime laboratory reported that it retested

the cuffs of the jacket and that the cuffs screened negative for

the presence of blood. The private laboratory also tested the

cuffs for the presence of blood, and it compared a DNA sample

from the victim with DNA found on the jacket. Like the State

police crime laboratory, the private laboratory found that the

cuffs screened negative for the presence of blood.

Additionally, although the substance on the cuffs contained a

mixture of two DNA profiles, the private laboratory excluded the

victim as the source of either profile. Moreover, the

laboratory reported that attempts to match the hair found in the

pocket to a sample of the victim's hair were "inconclusive" due

to a mixture of two or more DNA profiles on the hair fragment.

By comparison, at trial, the forensic chemist from the State

police crime laboratory testified that the cuffs of the jacket

tested positive for blood and that in his opinion the hair

fragment found in the pocket "was consistent with" that of the

victim.

On the basis of the new test results, the defendant filed a

motion for a new trial arguing that the test results cast real
 19

doubt on the justice of the defendant's conviction in light of

the importance of the forensic evidence in a case such as this

where the jury were asked to assess the competing credibility of

two eyewitnesses. The judge granted the defendant's motion on

the basis that had these new test results been available at the

time of trial, they would likely have eliminated the purple

jacket as evidence linking the defendant to the crime, and the

defendant would have been able to argue that there was no

physical evidence tying him directly to the killing.

Consequently, in a case that came down to two competing

eyewitness accounts of the killing, the physical evidence

stemming from the purple jacket, which was the only physical

evidence tying the defendant to the scene, likely was a "real

factor" in the jury's deliberations such that its elimination

would cast real doubt on the justice of the defendant's

conviction.

3. Discussion. In a motion for a new trial based on new

evidence, the defendant must show that the evidence is either

"newly discovered" or "newly available"6 and that it "casts real

6
Newly discovered evidence is evidence that was unknown to
the defendant or counsel and not reasonably discoverable by them
at the time of trial. Commonwealth v. Grace, 397 Mass. 303, 306
(1986). Newly available evidence is evidence that was
unavailable at the time of trial for a reason such as a
witness's assertion of a privilege against testifying or, as
here, because a particular forensic testing methodology had not
yet been developed or gained acceptance by the courts. See,
e.g., Commonwealth v. Mathews, 450 Mass. 858, 870-871 (2008);
 20

doubt" on the justice of the defendant's conviction." See

Commonwealth v. Cintron, 435 Mass. 509, 516 (2001); Commonwealth

v. Grace, 397 Mass. 303, 305 (1986). New evidence will cast

real doubt on the justice of the conviction if there is a

substantial risk that the jury would have reached a different

conclusion had the evidence been admitted at trial. Grace,

supra at 306. The standard is not whether the verdict would

have been different, but whether the evidence probably would

have been a "real factor" in the jury's deliberations. Id.

Such fact-specific analysis requires a thorough knowledge

of trial proceedings. Id. Therefore, we afford special

deference to the rulings of a motion judge who was also the

trial judge. Id. at 307. Where, as here, the motion judge was

not the trial judge and the motion judge did not make

credibility determinations arising from an evidentiary hearing,

we consider ourselves in as good a position as the motion judge

to review the trial record. See Commonwealth v. Raymond, 450

Mass. 729, 733 (2008). See also Commonwealth v. LeFave, 430

Mass. 169, 176 (1999). Nevertheless, we review a judge's

decision on a defendant's motion for a new trial based on the

common-law claim of newly discovered evidence for a "significant

error of law or other abuse of discretion." Grace, supra at

Commonwealth v. Cintron, 435 Mass. 509, 518 (2001). "The
standard applied to a motion for a new trial based on newly
available evidence is the same as applied to one based on newly
discovered evidence." Cintron, supra at 516.
 21

307. See Cintron, 435 Mass. at 517 ("In the absence of a

constitutional error, the granting of a motion for a new trial

on the ground of newly discovered evidence rests in the sound

discretion of the judge"). We will reverse a judge's ruling on

appeal only if the decision is "manifestly unjust."

Commonwealth v. Moore, 408 Mass. 117, 125 (1990).

Here, the Commonwealth does not dispute that the results of

the scientific analysis by the private laboratory constitute

"newly available evidence" in the requisite sense. Therefore,

we consider only whether the motion judge abused her discretion

in concluding that the test results cast real doubt on the

justice of the defendant's conviction. We conclude that she did

not.

The results of the reexamination of the purple jacket by

both the State crime laboratory and a private forensic

laboratory demonstrated first that the cuffs tested negative for

the presence of blood, and second that DNA on the cuffs

definitively was not that of the victim. Third, the

"inconclusive" results of the attempted DNA comparison between

the hair found in the jacket pocket and the victim's hair mean

that the hair cannot be identified as that of the victim.

The results of this new testing justify the grant of the

defendant's motion for a new trial for several reasons. First,

the results relate to the central issue in this case: whether
 22

the defendant was present during the killing of the victim.

This is not like cases in which evidence, although new, was

relevant to only a tangential matter. See, e.g., Commonwealth

v. Staines, 441 Mass. 521, 531-534 (2004) (new evidence tending

to prove alleged third-party culprit had driven defendant's car

on one occasion did not warrant new trial where evidence did not

shed light on central question of who had placed cocaine behind

dashboard of defendant's car). Further, the purported blood on

the defendant's cuffs and the hair in defendant's pocket were

not merely cumulative of other physical evidence presented at

trial. They were different in kind because they served as the

sole pieces of physical evidence indicating the defendant had

been in the presence of the victim during the killing. See

Cintron, 435 Mass. at 518.

Additionally, the evidence presented against the defendant

at trial was not otherwise so compelling as to render this new

evidence unlikely to have been a real factor in the jury's

deliberations. Compare Raymond, 450 Mass. at 731, 734 (new

evidence that key prosecution witness may have had plea

agreement at time of testimony did not warrant new trial where

other evidence against defendant, including defendant's own

confession, was "overwhelming"). Here, the defendant presented

testimony of an eyewitness who not only described a very

different version of events but also testified against his own
 23

penal interest, waiving his rights and implicating himself in a

murder and armed robbery. Additionally, the defense presented

the testimony of two witnesses who undermined a key aspect of

Grace's story -- that he had nothing to do with taking and

selling the victim's watch. Moreover, physical evidence also

tied Grace himself to the killings, including his bloody

fingerprint on the inside passenger side of the defendant's car,

and his own admission that he was wearing sneakers, which the

medical examiner opined were the sort of shoes that could have

delivered the severe blows to the right side of the victim's

skull.

Finally, the new evidence that neither the victim's blood

nor DNA was found on the cuffs of the defendant's jacket

justifies the grant of a new trial because it does more than

merely impeach the forensic chemist who testified for the

prosecution. Rather, the new evidence negates a key piece of

physical evidence that the prosecution relied on in arguing that

the jury should credit Grace's testimony. Had the evidence from

the private laboratory been available at the time of Grace's

trial, it would not merely have served to cast doubt on the

reliability of the methods used to test other surfaces for the

presence of blood. It effectively would have eliminated a key

piece of physical evidence linking the defendant to the killing.

Therefore, this new evidence is more than mere impeachment
 24

evidence, which, alone, is usually insufficient to warrant a new

trial. See Commonwealth v. Sleeper, 435 Mass. 581, 607 (2002).

We acknowledge, as did the motion judge, that much of the

evidence the Commonwealth presented against the defendant

remains, and that the Commonwealth may have been able to carry

its burden to prove beyond a reasonable doubt that the defendant

committed murder in the first degree even without the evidence

of the purple jacket. However, our inquiry is not whether the

verdict may have been different, but whether the evidence in

question probably served as a real factor in the jury's

deliberations. Grace, 397 Mass. at 306. In light of this, we

cannot ignore the fact that but for the purple jacket, the jury

would not have been presented with any physical evidence

connecting the defendant's person to the crime scene or the

victim's blood. Without the purple jacket, the defendant could

have argued at closing that not one piece of physical evidence

linked the defendant directly to the killing of the victim.

Combined with the testimony of defense witnesses, this fact may

have been sufficient to raise a reasonable doubt in the minds of

the jury. At the very least, the evidence was probably a real

factor in the jury's deliberations because it was one of the

pieces of physical evidence that the prosecution pointed to more

than once in closing as a basis on which to credit Grace's

testimony over that of Petrla.
 25

Therefore, we conclude that the motion judge did not abuse

her discretion in ruling that physical evidence arising from the

purple jacket served as a "real factor" in the jury's

deliberations such that the new test results cast real doubt on

the justice of the defendant's conviction. The judgment

granting the defendant's motion for a new trial is affirmed.

So ordered.