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SJC-11630
SJC-11631
COMMONWEALTH vs. MICHAEL COWELS.
COMMONWEALTH vs. MICHAEL MIMS.
Suffolk. October 9, 2014. - February 12, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Homicide. Deoxyribonucleic Acid. Evidence, Credibility of
witness. Witness, Credibility. Practice, Criminal,
Capital case, New trial.
Indictments found and returned in the Superior Court
Department on August 6, 1993.
Following review by this court, 425 Mass. 279 (1997),
motions for a new trial, filed on February 4 and March 24, 2008,
were considered by Thomas E. Connolly, J.
Requests for leave to appeal were allowed by Cordy, J., in
the Supreme Judicial Court for the county of Suffolk.
David J. Apfel (Nicholas K. Mitrokostas & Joshua M. Daniels
with him) for Michael Cowels.
Philip G. Cormier for Michael Mims.
Helle Sachse, Assistant District Attorney (Janis DiLoreto
Noble, Assistant District Attorney, with her) for the
Commonwealth.
2
LENK, J. The defendants, Michael Cowels and Michael Mims,
were convicted by a Superior Court jury in December, 1994, of
murder in the first degree in the stabbing death of Belinda
Miscioscia. Among the evidence presented against them at trial
were two "bloody" towels. The Commonwealth offered testimony
suggesting that the defendants had used the towels to clean
themselves after stabbing the victim. Testing performed on the
towels at the time of the trial indicated the presence of human
blood. The testing, however, was inconclusive. Further testing
was performed on just one of the towels; the sample on the other
was too small to be tested. An expert testified that the
further testing neither identified nor excluded the defendants
or the victim as the sources of the blood. In June, 1997, this
court affirmed the defendants' convictions. See Commonwealth v.
Cowels, 425 Mass. 279, 285-293 (1997).
In 2008, the defendants filed separate motions for a new
trial, based in part on deoxyribonucleic acid (DNA) testing
performed on the previously tested towel by an independent
laboratory after their convictions. That testing revealed that
the blood contained on the towel did not belong to either of the
defendants or the victim, but instead to an unidentified male.
The defendants also argued in their motions that they had been
deprived of the effective assistance of counsel.
3
After a nonevidentiary hearing, the motion judge, who was
also the trial judge, denied the motions. In 2011, each
defendant filed a "gatekeeper" petition before a single justice
of the county court, pursuant to G. L. c. 278, § 33E, seeking
leave to appeal from the denial of his motion for a new trial.
In January, 2014, the single justice allowed both petitions, and
the matters were entered in this court the following month.
We conclude that, given the towels' role as one of the few
pieces of physical evidence that corroborated the testimony of a
key prosecution witness whose credibility was sharply
challenged, the towels likely were a real factor in the jury's
deliberations. Consequently, we believe that there is a
substantial risk that, had the newly available DNA testing been
available at the time of the trial and resulted in the
inadmissibility of the towels in the Commonwealth's case, the
outcome of the trial would have been different. The defendants,
therefore, must receive a new trial.
1. Background. a. Evidence at trial. Misciosia's body
was found in a yard behind an industrial building in Chelsea on
the morning of Monday, June 28, 1993. An autopsy revealed that
she had been stabbed six times. The fatal stab wound perforated
her heart. She also had been slashed several times, and
suffered numerous bruises and defensive wounds. Her body and
clothing were "blood soaked." A pair of eyeglasses was found a
4
few feet from the body, and a bag of marijuana was stuffed
inside of her bra.
The police investigation quickly turned towards the
defendants, as they were among the last people to have seen the
victim alive on the preceding Saturday night. The trial
presented the jury with two conflicting timelines of the
defendants' activities on that night.
The Commonwealth presented -- largely through the testimony
of Robert Salie, a friend of Cowels and Mims -- the following
timeline. On the night of Saturday, June 26, 1993, the victim
was in her brother's apartment in Chelsea with her brother, her
brother's girl friend, and Peter Rowe, whom the victim was
dating. The victim and Rowe had plans to go to the Wonderland
Ballroom that evening. According to the witnesses present in
the apartment, the victim left by herself shortly before 9 P.M.
to purchase marijuana for the group from Cowels. She had come
to know Cowels while attending a course that she was required to
take in conjunction with a conviction of operating a motor
vehicle while under the influence of alcohol.
The victim met Cowels a few blocks away from the apartment,
where Cowels was attending a party along with his friend, Mims.
After purchasing the marijuana, the victim did not return to the
apartment. Instead, Salie testified, Cowels, Mims, and the
victim arrived at Salie's home, located approximately one and
5
one-half miles from the location of the party, at approximately
9:30 P.M. There the four smoked a marijuana cigarette, and
Salie witnessed the victim and the defendants prepare to have
sex in his bedroom. Salie was invited to participate, but
declined. The defendants and the victim then emerged from
Salie's bedroom and left his apartment shortly afterwards.
Salie testified that the defendants returned to his
apartment, unaccompanied by the victim, at approximately
11:30 P.M. After he allowed them to enter, they immediately
went to his bathroom. They remained in the bathroom for
approximately twenty minutes, during which time he could hear
the water running in the sink. When the defendants emerged from
the bathroom, Cowels was in his underwear and carrying a plastic
bag containing the clothes he had been wearing that evening.
Heading towards Salie's bedroom, Cowels asked Salie if he could
borrow some clothes. Cowels also held out a sneaker that he had
been wearing, on which Salie saw a spot that he believed to be
blood. "[I]f you fuck with me," Cowels told Salie, "this is
what happens." Cowels remarked that Salie would read in the
newspapers the following day about "[h]ow we killed her,"
adding, "she was a fucking pig and she got what she deserved."
He told Salie that "if [he] said anything [he]'d get hurt."
Salie gave clothes to both defendants. After dressing,
Mims told Salie to "keep [his] mouth shut," and Cowels put a
6
finger to Salie's head and reiterated that if Salie said
anything, he would "get fucking hurt." The defendants left
carrying bags of their clothing.
The defendants returned at approximately 1 A.M., without
their bags, and again told Salie that he had "better keep [his]
mouth shut." Cowels departed, while Mims spent the night on a
couch in Salie's apartment. On his way out, Cowels gave Salie a
ride to the store to purchase a pack of cigarettes.
Although Salie's testimony was crucial to the
Commonwealth's case, his credibility was extensively impeached
during cross-examination. In his first two interviews with
police, Salie had not offered the account that he ultimately
offered at trial. Instead, he indicated that the defendants had
come to his apartment only once on the evening of the victim's
death, when Mims arrived to sleep over, and that the victim was
never present in his apartment. Salie offered the narrative to
which he later testified at trial after he learned that he could
be charged as an accessory after the fact for providing the
defendants with clothing. Salie also entered into a cooperation
agreement with the Commonwealth under which he avoided a
mandatory term of incarceration for several unrelated motor
vehicle offenses, for which Cowels had been called to serve as a
prosecution witness against Salie. Salie had a long criminal
history, including numerous drug-related offenses, and admitted
7
to being a recovering heroin addict. Finally, the defense
challenged the inconsistency between Salie's testimony that he
was afraid of the defendants and his decision to go for a ride
with Cowels to pick up cigarettes immediately after Cowels
supposedly threatened him, and to watch a softball game in which
the defendants were playing on the following day.
The Commonwealth offered evidence that, it contended,
corroborated Salie's testimony. Approximately one month after
the stabbing, police recovered two towels, one from inside and
the other from behind a hamper in Salie's bathroom. The towels
were visibly stained; one was a large bath towel containing a
large, rust-colored stain, covering the majority of the towel's
surface. Testing confirmed the presence of human blood on both.
Salie testified that he last saw the towels on June 26, 1993,
when they were on the rack in his bathroom and were clean.
According to the Commonwealth's serologist, the bloodstains on
one towel -- a small hand towel -- were too small to be tested
without exhausting the sample. Further testing performed on the
other towel revealed a "weak reaction" to type A blood. Both of
the defendants and the victim have type O blood. The
Commonwealth's serologist, however, testified that the reaction
was too weak to draw any conclusions from it, stating that the
blood on the towel could belong to anybody.
8
The Commonwealth also introduced evidence that both of the
defendants got rid of their old shoes and acquired new ones at
approximately the same time shortly after the murder. An
officer who interviewed Cowels soon after the stabbing testified
that he appeared at the police station wearing "a brand new pair
of white high-top sneakers." Richard Polovick, a friend of
Cowels, testified that, sometime after the victim's death,
Cowels stopped and asked Polovick to repair a tire on his Chevy
Nova automobile. When Cowels opened the trunk of the vehicle,
Polovick saw a pair of sneakers. Polovick asked Cowels whether
the shoes were the "notorious sneakers that people were talking
about." Cowels responded, "Yes, that's them," and Polovick
watched as Cowels threw the sneakers into some bushes. Polovick
later directed police to the location, where the sneakers were
recovered several weeks after they had been left. Testing
revealed trace amounts of nonvisible, "occult" blood in a
recessed portion of the sole of one of the sneakers. The
forensic examiner, however, testified that the sample was too
small to determine the blood type, or even whether it came from
a human or an animal.
Similarly, the Commonwealth offered testimony that Mims
appeared to play softball with friends on Sunday, June 27,
wearing "green high-tech[] sneakers," which Salie testified he
had lent to Mims the previous night. Asked by a friend what had
9
happened to his old sneakers, which were expensive Reebok high-
tops that were in good condition the last time the friend saw
them, Mims responded that he had thrown them out because they
had gotten "wet and squeaky" in the rain the previous night.
However, it had not rained that night. Unlike Cowels's shoes,
Mims's shoes were never recovered.
Finally, the prosecution offered evidence of a vaginal
smear swab taken from the victim. Testing of the swab revealed
the presence of semen. The Commonwealth's expert, however,
testified that she could not identify, based on her analysis of
the swab, whether the seminal fluid came from either of the
defendants or both, or from someone else altogether.
In addition to the evidence that was introduced to
corroborate Salie's account of the evening, the Commonwealth
offered evidence that the defendants sought to construct a false
alibi in the days following the murder. Larry Bavis testified
that the defendants and a third person named Victor Grimaldi
urged Bavis to lie to "cover" for them by saying that he was
playing pool with them at Triple O's, a bar in the South Boston
section of Boston, on the night of the stabbing. In response to
that request, Bavis became angry, and called the police to
report the conversation.
Additionally, a police officer who interviewed Cowels
shortly after the victim's death testified to several
10
incriminating statements Cowels made. Cowels indicated that he
had met the victim at "drunk driving school," and that he had
had sex with her on several previous occasions, although he had
not done so for "several months." According to the officer's
testimony, Cowels described the victim as a "dirty pig," and
said that she was "such a dirty pig that one time he and Mims
had had sex with her at the same time." When the officer
informed Cowels that the victim was dead, Cowels "began
sobbing," and stated, "I'm only twenty-three. I don't want to
go to jail."
The defendants offered an alternative timeline of their
activities that evening, which was introduced at trial primarily
through the same police officer's account of what the defendants
had said to him during an interview. According to this
timeline, the victim arrived at the party in Chelsea to purchase
marijuana at approximately 7:30 P.M., rather than 9 P.M. as in
the Commonwealth's version. The defendants, the victim, and
Grimaldi then traveled to Triple O's, where they played pool and
drank until approximately 11 P.M. At 11 P.M they left;
Grimaldi, who lived upstairs from Triple O's, went home;
meanwhile, the victim accompanied the defendants to the
residence in Revere that Cowels shared with his sister, Barbara
Cowels. About twenty minutes later, Barbara Cowels arrived at
her home, where she encountered the defendants and the victim.
11
She chastised her brother for drinking, and kicked him out of
the house. The defendants then dropped the victim off near the
party where they had picked her up at the beginning of the
evening, and continued on to a bar in Revere, where they
remained until approximately 2 A.M. Once the bar closed, the
defendants went to Salie's house, purportedly for the first time
that evening. Mims spent the night there, while Cowels went to
his girl friend's house.
The defense introduced testimony by four witnesses. Two of
those witnesses corroborated this alternative timeline. Barbara
Cowels testified that when she arrived at her home at
approximately 11:20 P.M. that Saturday night, she encountered
the defendants along with the victim. She stated that, after a
brief argument with Cowels concerning his drinking, the
defendants and the victim left the house. Similarly, John
Heald, a friend and neighbor of the Cowelses, testified that on
the evening of the stabbing, sometime between 10 and 11:30 P.M.,
he observed the defendants leaving the apartment with a young
woman. Because the testimony of both of these witnesses in
conjunction suggested that the victim was still alive and in the
company of the defendants at approximately 11:30 P.M., it
12
undermined Salie's statement that the defendants arrived at his
apartment to clean up after the stabbing at that time.1
The defense also introduced an alternative account of the
incident when Cowels asked Polovick to repair a tire. A
coworker at the print shop where Cowels was employed at the time
of the stabbing testified that he accompanied Cowels on a trip
to purchase new sneakers. On the way, he and Cowels stopped to
have Polovick repair a tire. According to the coworker's
testimony, after Polovick repaired the tire, he and Cowels
continued on to a shoe store. There Cowels purchased new
sneakers and put the old sneakers on the back seat of his
vehicle. The coworker also testified that workers at the print
shop got ink and chemicals all over any clothes that they wore
to work, and that Cowels wore his sneakers to work.
Finally, the defense called a chemist at the State police
crime laboratory. The chemist, who was not assigned to the
1
On appeal, the Commonwealth describes Barbara Cowels's
testimony as if it were consistent with the timeline of events
that the prosecution presented at trial. Robert Salie, however,
testified that the defendants arrived at his apartment to clean
up at 11:30 P.M. Meanwhile, Barbara Cowels testified that she
arrived home at 11:20 P.M., and ordered the defendants and the
victim out of the house approximately five to ten minutes later,
leaving the defendants at most five minutes to travel to the
industrial park in Chelsea where the victim's body ultimately
was found, kill the victim, and then travel to Salie's apartment
to clean up. To believe that Barbara Cowels's testimony was
accurate, therefore, the jury would have had to conclude that
Salie's testimony was inaccurate, at least with respect to the
time when the defendants arrived at his apartment for the second
time that evening.
13
case, testified that she believed that the laboratory could have
performed a comparison test, using blood from the victim and the
defendants, that could have determined whether any of them was
the source of the blood found on the towel. No comparison test,
however, was ever performed. Both defendants were found guilty
of murder in the first degree on a theory of extreme atrocity or
cruelty.
b. Posttrial proceedings. After this court affirmed the
defendants' convictions, Commonwealth v. Cowels, 425 Mass. 279,
285-293 (1997), Mims filed a petition for a writ of habeas
corpus in the United States District Court for the District of
Massachusetts. Mims vs. DiPaolo, 98-CV-11203-MEL (D. Mass.
Apr. 1, 1999). The petition was denied, and, in an unpublished
opinion, the United States Court of Appeals for the First
Circuit affirmed the denial. Mims v. DiPaolo, 201 F.3d 428 (1st
Cir. 2000).
Cowels, initially proceeding pro se, moved for a new trial
on July 3, 1998. Cowels later filed an assented-to motion to
stay proceedings on his motion for a new trial while his
subsequently obtained counsel sought permission to perform DNA
testing on certain items of evidence. A Superior Court judge,
who was also the trial judge, authorized Orchid Cellmark
(Cellmark) to perform the requested testing. DNA testing on the
towel that had been subjected to further testing in the original
14
trial revealed that the blood found on it did not come from
either of the defendants or the victim, but instead from an
unidentified male. DNA testing of the vaginal swab taken from
the victim identified Mims as a contributor of sperm recovered
from the victim, and excluded Cowels as a contributor. Cellmark
also replicated the presumptive test for blood which the
Commonwealth had performed on the sneakers before the first
trial. Cellmark's test established that there was no blood on
the parts of the sneakers that were tested.
Based on the results of these tests, in February, 2008,
Cowels filed an amended motion for a new trial. Shortly
thereafter, Mims also sought a new trial, pressing the same
arguments as Cowels. The defendants argued that they were
entitled to a new trial based on "newly discovered" evidence, in
the form of the DNA test results on the towel and the vaginal
swab. They further contended that they were deprived of
effective assistance of counsel because trial counsel (1) failed
to conduct independent forensic testing on the sneakers;
(2) failed to call certain witnesses whose testimony would have
corroborated the defendants' account of their activities that
evening; and (3) failed adequately to develop the defense that
Peter Rowe, who had been dating the victim and had been "stood
up" by the victim on the night of the stabbing, was the actual
killer.
15
The judge2 rejected both arguments and denied the
defendants' motions for a new trial. The judge concluded that
the towels would not have been admissible in light of the DNA
testing establishing that neither the defendants nor the victim
were the source of the blood found on one of the towels. The
judge determined, however, that "there is no substantial risk
that the jury would have reached a different conclusion if the
'bloody' towels were not in evidence." The judge also rejected
the ineffective assistance of counsel arguments.
2. Discussion. The defendants argue, as they did in their
original motions, that they are entitled to a new trial based on
(1) newly discovered evidence, in the form of the DNA testing on
one of the towels and the vaginal swab; and (2) ineffective
assistance of counsel. In reviewing a judge's decision on a
motion for a new trial, we "examine the motion judge's
conclusion only to determine whether there has been a
significant error of law or other abuse of discretion."
Commonwealth v. Grace, 397 Mass. 303, 307 (1986). While we
"extend[] special deference to the action of a motion judge
who[, as here,] was also the trial judge," id., we nonetheless
conclude that, in the circumstances here, the defendants are
entitled to a new trial based on the DNA testing performed on
2
The judge has since retired.
16
the towel.3 Accordingly, we need not reach the defendants'
claims based on the vaginal swab testing or their ineffective
assistance of counsel claims.4
3
The judge denied the defendants' motions for a new trial
without conducting an evidentiary hearing. The Commonwealth
contends that, as a result, we "should only decide whether the
defendant[s are] entitled to an evidentiary hearing, and not
whether [they are] entitled to a new trial." We of course may
remand a motion for a new trial to the Superior Court with
instructions regarding the conduct of an evidentiary hearing.
See Commonwealth v. DiBenedetto, 458 Mass. 657, 670-671 (2011).
The Commonwealth identifies no case, however, holding that,
where a judge of the Superior Court denies a motion for a new
trial without holding an evidentiary hearing, our review is
limited to the decision not to hold the evidentiary hearing and
does not reach the underlying denial of the motion.
Typically, "where a substantial issue is raised [on a
motion for a new trial] and is supported by a substantial
evidentiary showing, the judge should hold an evidentiary
hearing" before granting the motion. Commonwealth v. Gordon, 82
Mass. App. Ct. 389, 394-395 (2012), quoting Commonwealth v.
Stewart, 383 Mass. 253, 260 (1981). Here, however, we have
determined that the only issue warranting an evidentiary
hearing -- the Commonwealth's recent contention that the
deoxyribonucleic acid (DNA) testing does not constitute "newly
discovered" evidence -- was waived below, and cannot be raised
on appeal. Remand for an evidentiary hearing, therefore, is not
warranted.
4
The defendants argue that "the new DNA evidence pertaining
to the vaginal swab would also probably have been a real factor
in the jury's deliberations, at least against Cowels." The
defendants argue that the swab test corroborates Cowels's
account of the evening, insofar as it establishes that he did
not have sex with the victim, undercuts Salie's credibility, and
undermines the Commonwealth's theory that the defendants killed
the victim because they regarded her as a sexual object. The
Commonwealth counters that Salie never testified that he
actually witnessed the defendants engaging in sexual intercourse
and that the newly discovered evidence is broadly consistent
with Cowels's statement to police that the victim had had some
sexual contact with both defendants on the evening of the
17
Rule 30 (b) of the Massachusetts Rules of Criminal
Procedure, as appearing in 435 Mass. 1501 (2001), allows a trial
judge to "grant a new trial at any time if it appears that
justice may not have been done." To prevail on a motion for a
new trial on the basis of newly discovered evidence, a defendant
must meet both prongs of a two-part test. First, a defendant
"must establish that the evidence was unknown to the defendant
or trial counsel and not reasonably discoverable at the time of
trial." Commonwealth v. Shuman, 445 Mass. 268, 271 (2005).
Second, a defendant must show that the evidence "casts real
doubt on the justice of the conviction." Commonwealth v. Grace,
397 Mass. at 305. The Commonwealth contends that the defendants
have failed to satisfy either of the elements necessary to
prevail on a motion for a new trial.
a. In its brief, the Commonwealth maintains that the DNA
evidence identified on the towels recovered from Salie's
bathroom does not constitute "newly discovered" evidence. Even
if the argument were not waived, we would find it unpersuasive,
given that this court did not determine the admissibility of DNA
testing of the type performed here until 1997, Commonwealth v.
murder, but had had more with Mims. Because we conclude that
the towels likely were a real factor in the jury's
deliberations, we need not reach the question whether the
vaginal smear swab -- taken by itself -- would have been
sufficient to give rise to a substantial risk that the outcome
of the trial would have been different.
18
Vao Sok, 425 Mass. 787, 789 (1997), and that the very article
that the Commonwealth cites as establishing that DNA testing was
available in 1993 indicates that it was then "still at the
experimental stage." Thompson, Evaluating the Admissibility of
New Genetic Identification Tests: Lessons from the "DNA War,"
84 J. Crim. L. & Criminology 22, 30 n.36 (1993). We need not
reach the issue of whether the evidence is "newly discovered,"
however, since it plainly was waived. Generally, "[a]n issue
not raised or argued below may not be argued for the first time
on appeal." Carey v. New England Organ Bank, 446 Mass. 270, 285
(2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New
England–Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989).
See Commonwealth v. LaBriola, 430 Mass 569, 570 n.1 (2000). As
the judge observed, in the proceedings below "[t]he Commonwealth
d[id] not dispute that the DNA results are 'newly discovered.'"
b. To satisfy the second element of the test for a motion
for a new trial, a defendant must establish that the new
evidence is:
"not only . . . material and credible[,] but also [that
it] . . . carr[ies] a measure of strength in support of the
defendant's position. . . . Thus newly discovered evidence
that is cumulative of evidence admitted at the trial tends
to carry less weight than new evidence that is different in
kind. . . . Moreover, the judge must find there is a
substantial risk that the jury would have reached a
different conclusion had the evidence been admitted at
trial. . . . The strength of the case against a criminal
defendant, therefore, may weaken the effect of evidence
which is admittedly newly discovered. . . . The motion
19
judge decides not whether the verdict would have been
different, but rather whether the new evidence would
probably have been a real factor in the jury's
deliberations." (Citations omitted).
Commonwealth v. Grace, 397 Mass. at 306.
This case differs from many cases involving motions for a
new trial on the basis of newly discovered evidence in one
respect. In such cases, a defendant generally offers newly
discovered evidence that was not presented in the original
trial, but that, the defendant argues, probably would have been
a real factor in the jury's deliberations if it had been
offered. See, e.g., Commonwealth v. Wright, 469 Mass. 447, 447-
448 (2014) (defendant argued "that newly discovered evidence in
the form of third-party culprit evidence warranted a new
trial"); Commonwealth v. Raymond, 450 Mass. 729, 729-730 (2008)
("The defendant alleges that the prosecution withheld the fact
of an agreement it purportedly made with a key witness . . .").
The defendants' motions here, however, are based less on newly
discovered evidence that could have been admitted in evidence at
the trial, than on newly available analysis that would remove
from the jury's consideration evidence admitted at trial in the
Commonwealth's case. The judge observed that "the 'bloody'
towels would not have been admitted in evidence had DNA testing
shown that the blood on the towels was not that of Cowels, Mims,
or Miscioscia." Although the defendants suggest that they might
20
offer the DNA testing performed on one of the towels in evidence
in a new trial, ostensibly to support an argument that Salie
intentionally "frame[d]" the defendants, the primary value of
the DNA testing for the defendants plainly derives from the way
in which it eliminates the towels as evidence against the
defendants.
This distinction, however, does not raise significant
conceptual problems for our analysis. In the typical case,
where a defendant argues on the basis of newly discovered
exculpatory evidence that was not presented at the original
trial, we ask "whether the new evidence would probably have been
a real factor in the jury's deliberations" had it been presented
(emphasis supplied). Commonwealth v. Grace, 397 Mass. at 306.
In this case, where the defendants argue on the basis of a newly
available analysis that likely would have rendered inculpatory
evidence presented at the original trial inadmissible, we ask
whether that inculpatory evidence "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"
(emphasis supplied). Commonwealth v. Sullivan, 469 Mass. 340,
350 (2014). See Commonwealth v. DiBenedetto, 458 Mass. 657, 667
(2011), quoting Commonwealth v. Grace, supra (in case where
newly available analysis undermines test results presented in
initial trial, analyzing whether "evidence concerning the . . .
21
test results probably was not 'a real factor in the jury's
deliberations,' and not likely to create 'a substantial risk
that the jury would have reached a different conclusion' if it
had not been admitted at trial"). If we conclude that the
subsequently eliminated inculpatory evidence likely did play an
important role in the jury's deliberations, then we must
conclude that there is a "'a substantial risk that the jury
would have reached a different conclusion' if it had not been
admitted at trial."
After a detailed review of the trial record, we determine
that the towels likely were a "real factor" in the jury's
deliberations, and that there is consequently a substantial risk
that the outcome of the trial would have been different had the
towels been excluded altogether or neutralized through expert
testimony indicating that blood found on one of the towels
matched neither the defendants nor the victim. We reach this
conclusion based on the paucity of physical evidence in the
case, the vital importance of Salie's testimony, and the
substantial challenges to his credibility.
The case against the defendants was entirely
circumstantial. There were no eyewitnesses to the crime. The
Commonwealth never found the murder weapon. There was no
forensic evidence at the crime scene tying either defendant to
the crime. Although the victim's body showed defensive wounds,
22
a police investigator who interviewed Cowels and Mims within
days of the stabbing observed no cuts or scratches on either
defendant. The only physical evidence that the Commonwealth
offered linking the defendants to the crime was the towels,
Cowels's sneaker, and the vaginal swab.
Due to the dearth of physical evidence, the case against
the defendants hinged, to a significant extent, on the testimony
of Salie. The problems with Salie's credibility, moreover, were
numerous and significant. In the prosecutor's own words, Salie
was "a junkie" with a "checkered background" and a "long
criminal record." Indeed, he was impeached at trial with at
least nineteen prior convictions of crimes ranging from drug
possession to arson. Salie originally had given an account that
was consistent with Cowels's and Mims's claim that they only
visited his home once on that evening, before changing his
account to the narrative presented at trial. Salie, moreover,
had a motive to change his story, and to point his finger at
Cowels specifically: not only did Salie's testimony enable him
to avoid prosecution as an accessory after the fact, but it also
allowed him to avoid jail time on an unrelated motor vehicle
offense, for which Cowels was to serve as a witness for the
prosecution. It is, in short, difficult to imagine a witness
with more credibility problems than Salie.
23
To counter these issues with Salie's credibility, the
prosecutor repeatedly emphasized the ways in which Salie's
testimony had been "confirmed" and "verified." He observed that
Salie's testimony had been "validated by so many different
people and so many different sources." The prosecutor referred
to the towels in the context of this discussion, as evidence
that "substantiated" Salie's account. Noting Salie's testimony
that the defendants ran into his bathroom to clean and change,
the prosecutor stated: "And when the police do a search, what
do they find? They find bloody towels. Those towels are in
evidence, ladies and gentlemen. Another piece confirming Mr.
Salie."
This court has observed that evidence likely functions as a
real factor in a jury's deliberations where the evidence "is
more credible than any other evidence on the same factual issue
and bears directly on a crucial issue before the jury, such as
the credibility of an important prosecution witness."
Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992). Here, the
towels were the only physical evidence corroborating a key
element of an important prosecution witness's testimony, and
functioned to reinforce Salie's severely challenged credibility.
Accordingly, we conclude that the towels likely were a real
factor in the jury's deliberations.
24
The Superior Court judge offered several reasons for
reaching the contrary conclusion. First, the judge observed
that the Commonwealth's expert testified that the testing
performed on the towels was "inconclusive," and that defense
counsel's closing arguments "highlight[ed] the limited
evidentiary value of the 'bloody' towels." The Commonwealth
echoes that argument on appeal. It contends that, because the
testing performed on the towels was inconclusive, "[r]emoving
the towel [tested by Cellmark] from the calculus of the trial,
or adding to it the fact that neither defendant['s] nor the
victim's blood was found on the towel, . . . does not 'carry a
measure of strength in support of the defendant's position.'"
There is, however, a significant difference between a test
that fails to say whether the blood came from the defendants or
the victim and a test that definitively establishes that the
blood did not come from either the defendants or the victim.
The inconclusive test results allowed the prosecutor to cite the
"bloody towels" as physical evidence that corroborated Salie's
testimony. As the defendants argue, "the use of the towel at
trial was a . . . powerful visual for the jury." A test that
definitively excluded the defendants and the victim, by
contrast, would not merely have reduced the weight that the jury
might have given the towels in substantiating Salie's testimony.
25
Rather, it would have meant that the towels would not have been
admissible at all, at least when offered by the prosecution.
Second, the judge concluded that, although the towels
functioned to corroborate Salie's testimony, they likely were
not a real factor in the jury's deliberations because "Salie's
credibility was brought into question numerous times throughout
his testimony," and there were "numerous reasons put forth at
trial for finding Salie's testimony unreliable and incredible."
But the repeated challenges to Salie's credibility increase,
rather than decrease, the importance that the towels likely had
in the jury's deliberations. It is difficult to see how the
jury could have voted to convict if the jurors had not believed
Salie's testimony. Much of the other evidence against the
defendants was valuable primarily because it confirmed details
in Salie's account: the original testing of the vaginal swab
smear confirmed Salie's statement that he witnessed the
defendants and the victim preparing to have sex; Polovick's
testimony regarding Cowels's disposal of his sneaker and the
original testing performed on the shoe were valuable because
they confirmed Salie's testimony that Cowels brandished a bloody
sneaker at him after the murder. Furthermore, Salie's testimony
that the defendants came into his apartment, cleaned up, and
discarded their clothing on the evening of the killing explained
why the prosecution could not present any other physical
26
evidence linking the defendants with an especially bloody
stabbing. Because the jury's verdict indicates that the jury
very likely did credit Salie's testimony, despite the challenges
it faced, and because the towels were among the very few pieces
of physical evidence that buttressed Salie's credibility, there
is a real question whether the jury would have credited his
testimony had the towels not been presented.
Third, the judge cited case law holding that "evidence of a
type merely tending to impeach or to corroborate credibility of
a witness ordinarily will not be the basis for ordering a new
trial." Commonwealth v. Shuman, 17 Mass. App. Ct. 441, 448
(1984), overruled in part on other grounds by Commonwealth v.
Jones, 59 Mass. App. Ct. 157 (2003). However, we have never
adopted an inflexible rule that newly discovered evidence that
merely corroborates or impeaches a witness's testimony is an
insufficient basis for a motion for a new trial. In fact, we
have found that, in 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."
Commonwealth v. Liebman, 388 Mass. 483, 489 (1983).
Furthermore, the DNA testing on the towel does not "merely
impeach" Salie's testimony. Commonwealth v. Sullivan, 469 Mass.
340, 352 (2014). Rather, it "negates a key piece of physical
27
evidence that the prosecution relied on in arguing that the jury
should credit [Salie's] testimony." Id. In Commonwealth v.
Sullivan, supra at 353, we affirmed a Superior Court judge's
decision granting a defendant's motion for a new trial based on
newly discovered evidence. There, in the original murder trial,
the Commonwealth had offered expert testimony indicating that a
jacket, allegedly worn by the defendant during the commission of
the crime, had blood on its cuffs that was "'consistent' with
that of the victim." Id. at 345. There, as here, the
prosecutor argued in closing that the jacket corroborated the
testimony of a witness whose credibility was significantly
challenged. Id. at 349. There, as here, subsequent DNA testing
excluded the victim as the source for the genetic material
identified on the jacket. Id. at 349-350. We concluded that
"the purported blood on the defendant's cuffs and the hair in
[the] defendant's pocket were not merely cumulative of other
physical evidence presented at trial." Id. at 352. Rather,
"[t]hey 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." Id.
Here, similarly, Salie testified that the defendants spent
twenty minutes in his bathroom cleaning up after allegedly
participating in a bloody stabbing. Police investigators
acquired a warrant to search Salie's apartment for "any bloody
28
clothing, hairs, any trace of blood that may be found in the
apartment." They searched the apartment for over one hour,
during which time they confiscated hair from the couch and also
performed tests for blood on the couch. Despite this search,
police recovered no evidence indicating that the victim had ever
been present in Salie's apartment, and the towels were the only
evidence seized from Salie's apartment that corroborated his
testimony. We think that the absence of any physical evidence
supporting Salie's testimony likely would have carried real
weight in the jury's deliberations.
Finally, the judge observed that "there was other evidence
implicating Cowels and Mims." The Commonwealth takes this
argument a step further. It contends there is no substantial
risk that the outcome of the trial would be different in the
absence of the towels because "the Commonwealth's case against
the defendants was . . . strong."
To address this argument, we must clarify the proper
approach to assessing a motion for a new trial on the basis of
newly discovered evidence. We have observed that "[t]he
strength of the case against a criminal defendant . . . may
weaken the effect of evidence which is admittedly newly
discovered." Commonwealth v. Grace, 397 Mass. 303, 306 (1986).
See Commonwealth v. Moore, 408 Mass. 117, 127 (1990). In
considering the over-all strength or weakness of the
29
prosecution's case, however, a reviewing court must ensure that
its focus remains on whether, in light of "a full and reasonable
assessment of the trial record," the evidence at issue "would
have played an important role in the jury's deliberations and
conclusions." Commonwealth v. Tucceri, 412 Mass. at 414. The
over-all strength or weakness of the evidence presented against
a defendant is significant, therefore, because it provides the
context within which to assess whether the newly discovered
evidence would have been a real factor in the jury's
deliberations. Where a case is "a weak one for conviction," for
instance, a jury is more likely "to pay attention to collateral
factors and even to make them decisive," and thus a court is
more likely to conclude that evidence relating to one of these
factors was or would have been a real factor in the jury's
deliberations. Commonwealth v. Bennett, 43 Mass. App. Ct. 154,
162 (1997).
The analysis remains focused, however, on "what effect the
omission might have had on the jury." Commonwealth v. Tucceri,
412 Mass. at 411. "[O]ur 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."
Commonwealth v. Sullivan, 469 Mass. at 353. Where we determine
that newly discovered evidence likely would have functioned as a
real factor in the jury's deliberations, or (as in this case)
30
that subsequently discredited evidence likely did function as a
real factor, we may not then assess whether the jury still would
have reached the same conclusion. Instead, the determination
that the evidence likely was a real factor in the jury's
deliberations demands a new trial. We have justified this
approach as "preserv[ing], as well as it can in the
circumstances, the defendant's right to the judgment of his
peers," since it ensures that the court's analysis turns on
"what effect the omission might have had on the jury," rather
than on "what . . . impact the late disclosed evidence has on
the judge's personal assessment of the trial record."
Commonwealth v. Tucceri, supra at 411.
Here, although the Commonwealth asserts that its over-all
case against the defendants was strong, it does not contest that
Salie's testimony was the linchpin. Without Salie's testimony,
the case against the defendants would not have been strong. In
light of the unique facts presented here -- given Salie's
importance to the prosecution's case and the towels' status as
one of only a few items of physical evidence that bolstered his
severely beleaguered credibility -- we determine that the towels
likely were a real factor in the jury's deliberations.
Consequently, there is a substantial risk that the newly
available testing excluding the victim and the defendants as
31
possible sources of the blood on one of the towels would have
altered the outcome.
3. Conclusion. The judgments of conviction are vacated
and set aside, and the matters are remanded to the Superior
Court for a new trial.
So ordered.