Commonwealth v. Ellis

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revision and are superseded by the advance sheets and bound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; SJCReporter@sjc.state.ma.us

SJC-11993

COMMONWEALTH vs. SEAN K. ELLIS.

Suffolk. May 5, 2016. - September 9, 2016.

Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.1

Practice, Criminal, New trial, Disclosure of evidence.
Evidence, Exculpatory. Estoppel.

Indictments found and returned in the Superior Court
Department on October 27, 1993.

Following review by this court, 432 Mass. 746 (2000), a
motion for a new trial, filed on March 13, 2013, was heard by
Carol S. Ball, J.

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

Paul B. Linn, Assistant District Attorney (Edmond J. Zabin,
Assistant District Attorney, with him) for the Commonwealth.
Rosemary Curran Scapicchio (Jillise McDonough with her) for
the defendant.

1 Justices Spina and Duffly participated in the deliberation
on this case prior to their retirements.
 2

GANTS, C.J. On September 14, 1995, a Superior Court jury

found the defendant guilty of murder in the first degree and

armed robbery in the killing of Boston police Detective John

Mulligan. In 2000, we affirmed the defendant's convictions and

the denial of his motion for a new trial. Commonwealth v.

Ellis, 432 Mass. 746, 765 (2000). In 2013, the defendant filed

a second motion for a new trial based on newly discovered

evidence regarding the victim's participation in crimes of

police corruption with several Boston police detectives who

investigated his murder, and information provided to the police

regarding possible third-party culprits. A Superior Court judge

allowed the new trial motion, concluding that the newly

discovered evidence cast real doubt on the justice of his

convictions. We conclude that the judge did not abuse her

discretion in ordering a new trial.

Background. 1. Evidence at trial. The convictions at

issue in this case arose from the defendant's third trial. At

the first trial, the jury found the defendant guilty of the

illegal possession of two firearms without a license, but were

unable to render verdicts on the murder and armed robbery

indictments, and a mistrial was declared as to those

indictments. The jury in the second trial were also unable to

render verdicts on the murder and armed robbery indictments,
 3

resulting again in a mistrial. We recount the evidence

presented at the defendant's third trial.

The victim had been a Boston police detective for seventeen

years before his death. In the early morning of September 26,

1993, he was working a paid security detail at a Walgreens

pharmacy in the Roslindale section of Boston, a detail that he

worked several times a week.

The defendant, after waiving the Miranda rights, told

police that, at approximately 2:30 A.M., his cousin asked him to

buy some diapers on his way home. His friend, Terry Patterson,

drove him and a woman to the Walgreens, where he purchased the

diapers.2 He had earlier received a page from a friend, whom he

telephoned from a public pay telephone outside the store at

about 3:00 A.M. According to the defendant, Patterson then

drove the defendant and the woman to the defendant's apartment,

where he spent the rest of the early morning.

At approximately 3:05 A.M., Rosa Sanchez arrived at the

Walgreens with her husband to buy soap. As she walked past the

victim's vehicle, she noticed that the victim was asleep in his

vehicle. She also saw a man, whom she later identified as the

2 There was evidence that a black male was seen in the
diaper aisle of Walgreens at about 3:10 A.M. and that diapers
were found at the defendant's apartment during a search
conducted on October 1, 1993.
 4

defendant, crouching by the victim's vehicle. She entered the

Walgreens and remained in the store for about twenty minutes.

Patterson owned a maroon or burgundy Volkswagen Rabbit

vehicle with tinted windows, custom wheels, and a "bra" on the

front. At approximately 3:20 A.M., a newspaper deliverer was

nearly struck by a vehicle matching that description as it was

driven away from the Walgreens with two men in the front seat

and a woman in the rear seat. At about that same time, Victor

Brown was awakened by a loud vehicle, and saw two African-

American men, one tall, the other short and stocky,3 standing

near a brown Volkswagen Rabbit parked on the sidewalk with a

woman sleeping in the rear seat. The two men walked into a

wooded area, reemerged from the woods, and walked down a

footpath in the direction of the Walgreens, which was five

minutes away on foot. At approximately 3:35 A.M., Brown heard

vehicle doors close and a vehicle engine start, and saw the

brown vehicle drive away. As Sanchez left the Walgreens at

approximately 3:25 A.M., she saw the man she previously had seen

crouching by the victim's vehicle standing with another man by a

pay telephone near the vehicle. At about this same time,

another customer arrived at the Walgreens. She spent a few

minutes in the store, and, as she left, she saw two men fitting

3 The defendant was tall and thin; Terry Patterson was short
and stocky.
 5

the descriptions of the defendant and Patterson walking toward

the pay telephones. She noticed as she was entering and leaving

the store that the victim appeared to be asleep in his vehicle

with his seat reclined.

At 3:30 A.M., a Walgreens employee left the store during a

break to get coffee, noticing as he left that the victim was in

the victim's vehicle and appeared to be fine. The employee

drove to get coffee at a shop that was about five minutes away.

When he returned to the Walgreens several minutes later, he saw

that the victim, who was still in the driver's seat of the

vehicle with his seat reclined, had blood on his face. After

unsuccessfully trying to rouse the victim, the employee ran into

the store and told the manager to call the police. The 911 call

was made at 3:49 A.M.

The victim had been shot five times in the face; each of

the shots would have proved fatal. The front driver's side door

of the victim's car was unlocked; the front passenger's side

door was locked. The police officers who responded to the scene

saw that the victim was wearing a holster for his service

weapon, but the weapon was missing. Several of the individuals

who were at the Walgreens that morning gave statements to

police. Several witnesses recounted seeing two males whose

descriptions were consistent with the defendant and Patterson in

the area of the Walgreens between 3:00 and 3:30 A.M., but
 6

Sanchez was the only witness who later identified either the

defendant or Patterson.

Early in the morning of September 30, police located

Patterson's vehicle. The vehicle no longer had a license plate,

and the windows were no longer tinted; instead, they bore

scratch marks and a glue-like residue, consistent with the

tinting having been removed.

Under a grant of immunity, Letia Walker, the defendant's

girl friend, testified that on the morning of September 30, she

went with the defendant to his apartment.4 The defendant entered

the apartment, and returned with a bag. When they went to

Walker's home, the defendant removed two guns from the bag, a

nine-millimeter Glock pistol and a .25 caliber pistol with a

"white" handle. The defendant then hid the guns under Walker's

dresser. On October 1, Kurt Headen, a friend of the defendant,

came to Walker's home. Walker and Headen removed the guns from

under the dresser, and Walker touched the clip of the .25

caliber pistol. Headen took the guns and discarded them in a

field by Walker's house.

On October 7, Boston police recruits found the two guns in

that field. The Glock recovered from the field was the service

4 On September 29, two cousins who lived with the defendant
were murdered in his apartment. The jury did not learn of this
killing. There is no evidence connecting their murder to the
defendant.
 7

weapon registered to the victim. Forensic testing revealed that

the .25 caliber pistol was the murder weapon.

On the evening of October 5, Sanchez was brought to the

Boston police homicide unit with her husband by Detectives

Walter Robinson and Kenneth Acerra to view photographic arrays.

Detective Acerra knew Sanchez personally -- he lived with, and

had a child by, Sanchez's aunt, and he was a good friend of

Sanchez's mother. Sanchez was shown two photographic arrays,

one that contained a photograph of the defendant and another

that contained a photograph of Patterson. When she was first

shown the array containing the defendant's photograph, Sanchez

became upset and told the police that one of the people in the

array had stalked her.5 The detectives who administered the

array covered that photograph, and Sanchez looked at the

remaining seven photographs. She pointed to the photograph of

someone other than the defendant, stating that she "[thought]

that may be the person" she saw crouching by the victim's

vehicle.6 She left the police station with her husband and

5 At the motion to suppress the identification testimony,
Rosa Sanchez was presented with the same photographic array and
asked to point to the photograph of the person who had stalked
her. She selected a different photograph from the one she
initially said was her stalker during the identification
procedure that was conducted at the police station.

6 Rosa Sanchez's husband, who drove her to the Walgreen's
pharmacy on the morning of the killing, identified the same man
when he was shown a photographic array a few days earlier.
 8

Detectives Robinson and Acerra. Sanchez returned to the

homicide unit minutes later, however, after she told her husband

that she had intentionally selected the wrong person and her

husband related that information to Detective Robinson. Sanchez

testified that she picked the wrong person because she was

afraid and did not want to get involved. When she returned to

the homicide unit, she was shown the same photographic array and

identified the photograph of the defendant as the person she had

seen crouching by the victim's vehicle.7 Sanchez later

identified the defendant in an in-person lineup and made an in-

court identification of the defendant.

A forensic fingerprint examiner testified to his opinion

that a fingerprint, found on the clip of the murder weapon, was

made by Walker. The same fingerprint examiner processed the

victim's vehicle and found four latent prints on the driver's

side door. The examiner testified that the four fingerprints

were left simultaneously by different fingers of the same hand.

The examiner identified the four fingerprints as belonging to

Patterson and opined that the fingerprints were left by the act

of closing the vehicle's door.8

7 Sanchez did not identity anyone in the array containing
the photograph of Patterson.

8 Patterson was convicted of murder in the first degree,
armed robbery, and possession of a dangerous weapon in a
 9

The Commonwealth's theory of the case, as presented in

closing argument, was that the defendant spotted the victim

sleeping in his vehicle and saw the opportunity to steal a

police officer's service weapon. The defendant and Patterson,

it was argued, then drove to the side street near the Walgreens

and left Patterson's vehicle there to avoid detection and

facilitate their escape. They then walked back to the Walgreens

and waited in the parking lot until no witnesses were present.

When the parking lot was otherwise empty, "they" shot the

victim, took his service weapon, ran back to Patterson's car,

and drove away. Under the Commonwealth's theory, the motive for

the murder was to take the victim's service weapon as a trophy.

The jury convicted the defendant of armed robbery and of

murder in the first degree on theories of extreme atrocity or

separate trial, but his convictions were reversed on appeal and
his case was remanded for a new trial. Commonwealth v.
Patterson, 432 Mass. 767, 768, 781 (2000). On remand, Patterson
moved in limine to bar the admission of the fingerprint
identification, claiming that the identification opinion did not
meet the reliability standards set forth in Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 590-595 (1993), and
Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994).
Commonwealth v. Patterson, 445 Mass. 626, 627-628 (2005). The
judge determined the fingerprint identification evidence to be
admissible but reported the question, and we granted direct
appellate review. Id. at 628. We held that it was an abuse of
discretion to conclude that the identification opinion was
admissible because the methodology used by the examiner to
identify simultaneous latent fingerprint impressions was not
reliable and thus not admissible. Id. at 639, 654-655.
Patterson later pleaded guilty to the lesser included crime of
manslaughter, and was sentenced to time served.
 10

cruelty and felony-murder. The judge denied the defendant's

motion for a new trial, and on appeal we affirmed both the

convictions and the denial of the motion for a new trial.

Ellis, 432 Mass. at 747. In that motion for a new trial, the

defendant argued that newly discovered evidence concerning

corrupt police practices committed by Detectives Robinson,

Acerra, and Brazil "cast enough doubt on the integrity of the

police investigatory procedures leading up to the Sanchez

identification to necessitate a new trial and a new hearing on

his motion to suppress." Id. at 764. We noted that in 1997,

two years after the defendant's convictions at his third trial,

a Federal grand jury returned indictments against Acerra and

Robinson alleging, among other things, that they submitted false

search warrant applications and affidavits and illegally seized

property and funds obtained through the searches conducted

pursuant to those warrants. Id. Acerra and Robinson pleaded

guilty to fourteen counts of criminal conduct; Brazil was not

charged with criminal wrongdoing but, after being granted

immunity, admitted his involvement in the wrongdoing. Id. at

764 & n.12. We also noted that Acerra, Robinson, and Brazil

"were each directly involved in the investigation and

prosecution of the defendant." Id. at 764-765. Brazil

testified at trial "to the circumstances and content of the

defendant's statement to the police." Id. at 765. Acerra and
 11

Robinson did not testify at trial, but both testified at the

hearing where the defendant's motion to suppress the

identification of the defendant by Sanchez was denied. Id. The

defendant argued that "evidence of [the detectives'] misconduct

in other investigations should be admissible (1) to impeach

their credibility concerning the photographic array, and (2) to

suggest that Sanchez's identification of the defendant's

photograph was the product of corrupt police tactics, and that a

new trial is required for this purpose." Id. We concluded that

the defendant had failed to meet his burden of showing that

Sanchez's identification was "unnecessarily suggestive" and

therefore should have been suppressed, because there was an

"absence of evidence, by affidavit or otherwise, suggesting that

the subject detectives procured false evidence in connection

with the investigation of this defendant." Id.

2. Second motion for a new trial. On March 13, 2013, the

defendant filed a second motion for a new trial, arguing that he

was entitled to a new trial because of newly discovered evidence

and the Commonwealth's failure to disclose exculpatory evidence.

In support of his motion, the defendant offered documentary

evidence obtained through public records requests. The judge

assigned to hear the motion, who was not the trial judge,9

9 The trial judge had retired.
 12

allowed the defendant's request for further discovery, which

resulted in additional documentary evidence on which the

defendant relies. In addition to considering the documentary

evidence, the motion judge held an evidentiary hearing over the

course of seven days. The testimony focused on three issues:

the alleged inadequacies in the investigation, the involvement

of corrupt detectives in the investigation, and the discovery

that was provided to the defendant's trial counsel.

In her decision allowing the motion for a new trial, the

judge identified various categories of evidence that she

concluded were newly discovered: (1) information regarding the

theft on September 9, 1993, seventeen days before the victim's

death, of approximately $26,000 from Robert Martin by Detectives

Robinson, Acerra, and Kenneth Beers, Sergeant Detective Leonard

J. Marquardt, and the victim (Martin theft); (2) Federal Bureau

of Investigation informant reports (FBI informant reports); (3)

information regarding an allegation by Boston police Detective

George Foley that the son of a Boston police officer had told

him in late August, 1993, that his father was going to kill the

victim because the victim would not leave the son's fourteen

year old sister alone (Foley allegation); (4) information from

Boston police anti-corruption division (ACD) files regarding

Detective Robinson and the victim together robbing two mid-level

drug dealers of a large sum of money in or around May of 1992
 13

(drug dealer robbery); (5) information from ACD files regarding

the victim obtained through Ronald Hansen (Hansen report); and

(6) tips from the Boston police "hotline" established after the

victim's killing to obtain investigative leads (hotline tips).

We briefly summarize the most relevant information in the

judge's findings regarding each of these categories of evidence.

a. Martin theft. As described in the Federal grand jury

testimony of Martin and his roommate in September and October,

1996, respectively, and an ACD report of Martin's interview with

an investigator, Martin was stopped on September 9, 1993, by

Detectives Robinson, Acerra, and Beers, along with the victim

and Sergeant Detective Marquardt, while Martin was in a vehicle

conducting a sale of marijuana with another individual. Acerra

identified himself as an "INS" officer and gave a false name

during the encounter. The detectives confiscated Martin's

knapsack, which contained seven pounds of marijuana, and served

Martin with a search warrant for his apartment. Robinson and

Acerra took Martin's keys and left Martin in the vehicle

"guarded by" the victim. Robinson later returned to the vehicle

and told Martin to come to the apartment to open a safe, which

Martin did. The safe contained twenty-two pounds of marijuana.

The victim appears to have entered the apartment either with

Martin or after Martin left the vehicle.
 14

Martin's roommate arrived at the apartment to find Martin,

Martin's girl friend, and another friend of Martin being

detained by the detectives. Two detectives took the roommate to

his room and asked him to open a safe, from which they

confiscated marijuana. Robinson then took Martin to a second

apartment with Acerra and Marquardt to open another safe,

leaving the victim and Beers in the first apartment to detain

Martin's roommate and the others. When the detectives asked

Martin to open the safe in the second apartment, Martin asked

Marquardt whether, in exchange, the detectives would release

Martin's friends. Marquardt told him he would release them only

if there was more money in the safe, because they had found only

$8,000.10 When Martin opened the safe, Acerra removed

approximately $18,000 to $20,000. After a telephone call from

one of the detectives at the second apartment, the roommate and

the others were released. The police report documenting the

execution of the warrant, which was signed by both Detective

Robinson and the victim, declares that "several pounds of

marijuana" and drug paraphernalia were seized; the report makes

no reference to the seizure of any money.11

10The detectives already had found $8,000 that Robert
Martin kept in a filing cabinet in that apartment.

11The Federal indictment against Detectives Walter Robinson
and Kenneth Acerra stated that Robinson falsely reported in the
search warrant inventory that only $14,000 was seized.
 15

b. FBI informant reports. An FBI informant who had "an

intimate knowledge" of the victim reported on November 12, 1993,

that the victim "regularly . . . 'shook down' pimps,

prostitutes, and drug dealers for money." The victim, according

to this informant, also dealt drugs, extorted other police

officers, and "used every means available to blackmail people."

The informant "has heard often that [the victim] committed

murder as a cop."

An FBI informant reported on November 1, 1993, that

Detective Foley was recently disciplined for accusing Officer

Raymond Armstead, Sr. (Armstead Sr.) of involvement in the

victim's murder. The reports also contain allegations that the

victim was a "rogue" officer who "[shook] down" bar owners,

bookmakers, and the owners of second-hand jewelry stores, and

paid a prostitute to drop charges against a third party. The

reports also reveal that the victim "'liked' young black girls"

and was the subject of a Federal investigation as early as 1986.

c. Foley allegation. Detective Foley was originally

assigned to the Boston police task force that was constituted in

the wake of the victim's death to investigate his murder (task

force). On September 30, 1993, Detective Foley related to

several detectives that, in August of that year, he was

investigating threats made against Raymond Armstead, Jr.

(Armstead Jr.), a correction officer for the Suffolk County
 16

sheriff's department and son of Armstead Sr. Detective Foley

reported that Armstead Jr. told Foley that his father had a

"beef" with the victim because the victim would not "leave

[Armstead Jr.'s] fourteen year old sister alone." Foley stated

that Armstead Jr. told Foley that his father was going to kill

the victim and that his father knew that the victim worked a

detail at Walgreens and slept in his vehicle during the detail.

Foley said that Armstead Jr. told him that Foley would "read

about it in the papers" that the victim had been "[s]hot between

the eyes at Walgreens."

A report authored by Sergeant Detective Daniel Keeler

stated that, later in the day on September 30, Keeler and

Sergeant Detective Thomas J. O'Leary met with Armstead Jr. to

discuss the allegations. During this interview, Armstead Jr.

confirmed that Foley had investigated the threats against

Armstead Jr. but denied telling Foley that his father was going

to kill the victim, denied knowing the victim, and denied that

the victim had any involvement with a younger sister, stating

that he was the youngest child in his family.12

12In 2014, Boston police detectives contacted retired
Officer Raymond Armstead, Sr., to inquire about his children.
Officer Armstead informed the detectives that, in 1993, he had
four daughters: two biological daughters and two foster
daughters. Officer Armstead further stated that in 1993 one of
his foster daughters was twelve or thirteen years old.
 17

Confronted with the information elicited from Armstead Jr.,

Foley said that he may have been "totally wrong," but ultimately

insisted that he was telling the truth. At 11:30 P.M. on

September 30, Captain Detective Edward J. McNelley told Foley

that the information he had supplied was false. McNelley

concluded that Foley was suffering from "severe emotional

depression" and was unable to perform his duties, so he

requested that Foley surrender his gun and badge, and relieved

him of duty. Foley later received treatment at a hospital. A

psychological evaluation concluded that Foley could return to

work and carry a gun.

d. Drug dealer robbery. An ACD report dated November 17,

1993, reported that an anonymous tipster had reported that,

eighteen months earlier, the victim and Robinson had robbed two

drug dealers at gunpoint. The reliability of the tip was rated

"good," and an ACD lieutenant met with the tipster that day and

learned that the robbery involved a large sum of money.

e. Hansen report. The ACD files contained notes from an

interview with Ronald Hansen, dated May 9, 1996. Detective

Robinson used Hansen and Hansen's ex-wife as informants. The

interview notes recount that the ex-wife had known the victim

since she was sixteen years old and that the victim "used to

take young girls for rides in his car." The notes also state

that Detective Robinson asked Hansen if he knew anything about
 18

the victim's murder and Hansen responded that the victim "took

drugs from the girl friend of one of the killers and told her if

her boy friend wanted the drugs back he would have to come and

see [the victim] or he'd arrest her." Hansen added that "[o]ne

of the girls killed in Mattapan was the girl friend," apparently

referring to one of the defendant's cousins who was killed on

September 29, 1993. See note 4, supra. The notes also reflect

that another detective asked the ex-wife if the victim carried a

.25 caliber gun on his ankle, and she answered that the victim

did.

f. Hotline tips. The same day as the victim's shooting,

the Boston police department publicized a hotline for people to

call with tips regarding the victim's murder. While the motion

for a new trial was being litigated, the defendant requested and

the Commonwealth disclosed written reports of the tips received

on the hotline, some of which the defendant had received in

redacted form from a prior public records request.

Many of the tips allege or suggest that someone other than

the defendant committed the murder or participated in the

murder. The notes memorializing the tips show, among other

things, that (1) on the afternoon of September 26, 1993, a

detective "called and stated that his brother . . . , who is a

guard at South Bay . . . told him that an inmate, William Bell,

told [his brother] that a drug dealer, named Armstead, had a
 19

contract out on [the victim]"; (2) a tip dated September 30, was

purportedly from a taxicab driver who drove the victim's girl

friend to the parking lot the night of the murder where she shot

him with a .25 caliber gun that the victim had given her for

self-defense;13,14 (3) police received two separate tips, one on

September 27, 1993, and another on September 29, alleging that a

"Royce Hill" was an accomplice to the shooting; and (4) police

received three separate tips stating that someone at the Essex

County house of correction had information relating to the

victim's murder.

At the evidentiary hearing on the second motion for a new

trial, Sergeant Detective O'Leary testified that he was the

"shepherd" of the victim's homicide investigation, and that, as

tips came in, "they were handed out" to pairs of investigators

who were part of the task force engaged in the homicide

investigation. O'Leary stated that he would write the names of

the detectives he assigned to investigate the tip on the report

of the tip and that those detectives should have documented any

13Another tip, also dated September 30, 1993, stated that
the victim kept a .25 caliber firearm in his closet that his
girl friend did not know about.

14One witness gave a statement to police on September 27,
1993, in which she said that she was at the Walgreens on the
night of the shooting, arriving at approximately 2:50 A.M. She
stated she saw a woman, who was white and in her mid-thirties to
early-forties, in the victim's car talking to the victim. She
did not testify at trial.
 20

investigation that was done to follow up on the tip in a report

that was filed with him. He admitted, however, that there was

only one tip that showed that detectives had been assigned to

investigate it, and that the tip had been assigned to Sergeant

Detective Marquardt and Detective Acerra. O'Leary further

conceded that there are no reports or records showing that any

investigation was done to follow up on any of the tips received

on the hotline.

The judge concluded that these six categories of newly

discovered evidence showed that the investigators "failed to

vigorously pursue other leads" and, when combined with evidence

of the "conflict of interest" of Acerra, Robinson, and Brazil,

formed the basis for "a potentially powerful" defense under

Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).15 The

judge found that Robinson, Acerra, and Brazil "were involved in

nearly every aspect of the homicide investigation" that resulted

in the defendant's prosecution. All three were on the fifty-

person task force conducting the investigation. Acerra and

Marquardt were among the first to enter the victim's home after

he was killed.16 Acerra and Brazil were the first to respond to

15The judge left open the question whether any of the newly
discovered evidence would be admissible as evidence of a third-
party culprit; she did not rest her decision on this ground.

16Tina Erti, the roommate of the victim's girl friend,
reported that after the girl friend learned about the victim's
 21

Sanchez's home on the day of the killing. Acerra and Robinson

were present when Sanchez was first shown the photographic array

and were with Sanchez after she selected the photograph of

someone other than the defendant and before she identified the

defendant. Acerra and Detective Richard Ross found the victim's

cellular telephone below a tray in the center console of the

victim's vehicle on October 1, even though an inventory search

of the vehicle had been conducted on the day of the shooting and

a cellular telephone was not among the twenty-two items listed

in the inventory.17 Acerra and Robinson drove Headen, who

allegedly hid the firearms in the field, to the police station

to be interviewed on October 12, 1993.18 Brazil was one of the

death, the girl friend went to his apartment to look for money
she knew he kept there. She did not find the money and told
Detective Robinson, who said the police had taken it.

17Both Sergeant Detective Thomas O'Leary and Detective
Robert Foilb, who took custody of the cellular telephone after
it was recovered, testified they were unaware of any steps taken
to examine the contents of the cellular telephone for any
information, such as the last call made or received. Foilb
testified that the telephone was processed for fingerprints but
no fingerprints were found on the telephone, including the
victim's.

18On October 2, 1993, five days before the two firearms,
including the .25 caliber handgun with a pearl handle that was
determined to be the murder weapon, were found in the field,
Detectives John McCarthy, Randall Halstead, and Dennis Harris
interviewed Tina Erti, the roommate of the victim’s girl friend,
and asked, "Have you ever seen [the victim] with a small caliber
gun with a pearl handle?" Erti answered, "Never."
 22

detectives who questioned the defendant, and he was one of the

detectives who interviewed the defendant's uncle.19

The conflict of interest the judge identified was that

"Detectives Brazil, Acerra, and Robinson had a personal
interest in solving [the victim's] homicide as quickly as
possible before any members of the . . . [t]ask [f]orce,
who were not part of the corruption scheme, or anyone else,
could look further into why [the victim] may have rubbed
people the wrong way or was rumored to be a 'dirty cop.'
In other words, they needed to prevent others from finding
out that they and [the victim] had been engaging in illegal
activities." (Emphasis in original.)

The judge stated that, with this newly discovered evidence, the

defendant could have argued that the corrupt detectives

"compromised potential evidence of the identity of [the

victim's] killer while attempting to conceal evidence of their

own wrongdoing."

The judge also found that

"[t]he newly discovered evidence would have further
supported a powerful Bowden defense by revealing that the
Commonwealth failed to investigate numerous other parties
with reason to kill [the victim]. Such a defense could
have raised a reasonable doubt as to whether, as the
Commonwealth claimed at trial, [the defendant] decided to

19The defendant's uncle testified at the first two trials,
but not at the third trial. In his statement to police, the
uncle stated that the defendant told him that he (the defendant)
went to Walgreens to buy diapers. The defendant said that, when
he left the store, he noticed that Patterson's vehicle was no
longer in the parking lot, but was parked across the street near
some bushes. He then saw Patterson run towards him, urging him
to come. When they got to the vehicle, Patterson told him that
he (Patterson) had shot someone, and handed the defendant two
guns, which the defendant and Patterson later placed in plastic
bags and buried. The defendant made clear to the uncle that he
was not the shooter.
 23

kill [the victim] simply because the opportunity presented
itself."

The judge concluded that the newly discovered evidence of

the conflict of interest of Acerra, Robinson, and Brazil, and

the Boston police department's "failure to follow up on leads

implicating third-party suspects is material, credible, and

would have been a real factor in the jury's deliberations," such

that "this is a case where justice has not been done."20

Discussion. The Commonwealth essentially makes three

challenges to the motion judge's new trial order. First, the

Commonwealth contends that the judge was clearly erroneous in

finding that the Foley allegation and the hotline tips were

newly discovered. Second, the Commonwealth claims that, in

considering the first motion for a new trial, the motion judge

and this court knew of the evidence of police corruption

committed by Detectives Acerra, Robinson, and Brazil and the

defendant therefore is barred by the principle of direct

estoppel from relitigating this issue in a second motion for a

20The motion judge also concluded that the drug dealer
robbery information, the reports on the Foley allegation, and
the hotline tips were exculpatory evidence that the Commonwealth
failed to disclose in violation of its constitutional obligation
to do so under Brady v. Maryland, 373 U.S. 83, 87 (1963). The
judge concluded that this Brady violation "provides an
additional basis" for ordering a new trial. Because we rest our
affirmance of the judge's new trial order on the ground of newly
discovered evidence, we do not set forth her findings regarding
a Brady violation or otherwise address it.
 24

new trial. Third, the Commonwealth argues that the motion judge

abused her discretion in ordering a new trial. We address each

of these three arguments.

1. Newly discovered evidence. Evidence is newly

discovered if it "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. Commonwealth v. Cowels, 470

Mass. 607, 616 (2015), quoting Commonwealth v. Shuman, 445 Mass.

268, 271 (2005). See Commonwealth v. Grace, 397 Mass. 303, 306

(1986). The Commonwealth claims that the judge's finding that

the Foley allegation and the hotline tips were newly discovered

was clearly erroneous because it had disclosed this information

to defense counsel before the third trial.21 The Commonwealth

points to the testimony at the evidentiary hearing on the motion

for a new trial presented by the lead prosecutor on the case,

Assistant District Attorney Phyllis Broker (the prosecutor).

Sergeant Detective O'Leary testified that he had numbered and

indexed all the police reports filed in the investigation, and

numbered and indexed the hotline tips into two indices: one of

tips about the murder generally and another of tips regarding

the Volkswagen that eventually became a focus of the

21The Commonwealth does not challenge the judge's finding
regarding the other newly discovered evidence.
 25

investigation. He further testified that he had turned over all

of the numbered and indexed reports to the prosecutor.

The prosecutor testified that she had no memory of her

disclosure of specific items of discovery in the defendant's

case but recalled that her routine practice regarding discovery

was to disclose "everything" unless there was a reason not to,

in which case she would "have a hearing on it." In producing

discovery to defense counsel, she would number the police

reports as they came in, make copies, and then write a discovery

letter enclosing the reports and referencing them by number.

As to the Foley allegation, the prosecutor testified from

her review of the Commonwealth's files that a copy of Detective

Keeler's report regarding Detective Foley's allegations was

numbered 186, that this number was circled, and that there is a

corresponding entry referencing the Keeler report in an index of

police reports that she created. She testified that this was

consistent with her routine practice and indicative that she

turned over the report to defense counsel.22

22The Commonwealth also cites a letter to the prosecutor
from one of defendant's trial counsel that asks about missing
attachments to a document numbered 184 "in [the Commonwealth's]
initial discovery list." The Commonwealth argues that this
letter shows that defense counsel was provided with the index of
police reports that included a reference to the report of
Detective Daniel Keeler, which was numbered 186, and therefore
either received the Keeler report or were on notice of its
existence.
 26

As to the hotline tips, the Commonwealth points to two

indices of the hotline tips in the Commonwealth's files that

have the handwritten words "given to counsel" on the first page.

the prosecutor testified that the handwriting is hers and

indicates that she provided the indices, and inferentially the

reports of the tips themselves, to defense counsel.

The defendant, however, introduced evidence suggesting that

the discovery process in his case was not as orderly as it

appeared. The defendant introduced two versions of indices of

police reports related to the investigation, which contain the

same documents numbered somewhat differently. The defendant

also introduced several transmittal letters that enclosed

discovery sent by the prosecutor to the defendant's trial

counsel. These discovery letters showed that some documents

that were disclosed to the defense were not referenced by

number, that those documents that were referred to by number

were not disclosed sequentially -- one letter enclosed seven

documents including one document numbered 138 and one document

numbered 197 -- and that at least one of the documents referred

to by number in a discovery letter did not correspond to the

prosecutor's numbered index, which she claims listed all of the

documents disclosed to the defense.

Attorneys David Duncan and Norman Zalkind, the defendant's

trial attorneys, testified that they did not receive any report
 27

of the Foley allegation or any hotline tips alleging that third

parties were involved in the victim's murder. In addition to

having no recollection of receiving those materials, trial

counsel testified that, if they had received them, they either

would have sent an investigator to follow up on the allegations

or would have filed discovery motions seeking additional

information from the Commonwealth, but they did neither in this

case. The defendant also introduced evidence showing that, when

the defendant's trial counsel received a letter from then State

Senator Diane Wilkerson stating that she had received a

telephone call from a person claiming to have information about

the victim's murder and attaching her notes of the call, they

filed a discovery motion that sought information from the

Commonwealth regarding those allegations.

We conclude that the judge's finding that the Foley

allegation and the hotline tips were newly discovered was not

clearly erroneous. The judge was entitled to credit the

testimony of the defendant's trial counsel that they did not

receive this information and that, if they had, they surely

would have followed up on it through additional investigation or

requests for further discovery. In addition, where there was

evidence of irregularities in the discovery process, the judge

also was not obliged to find that these documents had been

furnished in discovery based on the numbering and indexing of
 28

investigative documents and on the prosecutor's description of

her routine discovery practices.

2. Direct estoppel. The Commonwealth contends that the

newly discovered evidence adds nothing material to what was

presented to the judge in the first motion for a new trial and,

on appeal, to this court when we affirmed the defendant's

convictions and the denial of the motion for a new trial after

plenary review under G. L. c. 278, § 33E. It correctly notes

that we knew then that Detectives Acerra, Robinson, and Brazil

had been implicated in submitting false search warrant

applications and affidavits in other cases and in illegally

seizing property and money while executing those fraudulent

warrants, and that Acerra and Robinson had pleaded guilty to

Federal indictments arising from those allegations. Ellis, 432

Mass. at 764. It also correctly notes that the defendant

attached to his first motion for a new trial a Boston Globe

article, dated February 18, 1996, reporting that the Boston

police "anticorruption unit" was investigating Detective

Robinson and the victim for their alleged involvement in the

robbery of money from two drug dealers in 1991. Because this

information was known to us when we concluded, after reviewing

the entire record under § 33E, that we found "nothing that

compels us to exercise our discretion to disturb the jury's

verdict," id. at 765-766, the Commonwealth contends that the
 29

motion judge should have denied the defendant's motion for a new

trial "based on the principle of direct estoppel," and cites

Commonwealth v. Rodriguez, 443 Mass. 707, 709-712 (2005), in

support of this argument. We disagree.

In Rodriguez, supra at 710-711, we declared that, where a

defendant "raises no new factual or legal issue" in a motion

under Mass R. Crim. P. 30 (b), as appearing in 435 Mass. 1501

(2001), and simply seeks to relitigate a motion that was

previously denied by the motion judge and rejected on direct

appeal, "principles of direct estoppel operate as a bar to the

defendant's attempt in [the] rule 30 (b) motion to relitigate

issues." For direct estoppel to apply, however, "the

Commonwealth must show that the issues raised in the defendant's

rule 30 (b) motion were actually litigated and determined on the

defendant's original motion," which here means the defendant's

first motion for a new trial. Id. at 710.

In affirming the denial of the first motion for a new

trial, we recognized that Detectives Acerra, Robinson, and

Brazil had engaged in police misconduct in other cases, but we

concluded that the defendant had failed to meet his burden of

furnishing evidence "suggesting that the subject detectives

procured false evidence in connection with the investigation of

this defendant." Ellis, 432 Mass at 765. We did not know at

that time that these detectives had been engaged with the victim
 30

in criminal acts of police misconduct as recently as seventeen

days before the victim's murder.23 The complicity of the victim

in the detectives' malfeasance fundamentally changes the

significance of the detectives' corruption with respect to their

investigation of the victim's murder. Without the victim's

complicity, the defendant could argue that these detectives had

engaged in misconduct with respect to other investigations and

therefore might have been more likely to have engaged in

misconduct with respect to this investigation. But with the

victim's complicity, these detectives would likely fear that a

prolonged and comprehensive investigation of the victim's murder

would uncover leads that might reveal their own criminal

corruption. They, therefore, had a powerful incentive to

prevent a prolonged or comprehensive investigation, and to

discourage or thwart any investigation of leads that might

reveal the victim's corrupt acts. This issue was not "actually

litigated and determined on the defendant's original motion,"

see Rodriguez, 443 Mass. at 710-711, and therefore is not barred

by direct estoppel.

23The Boston Globe article that was in the record in our
affirmance of the denial of the first motion for a new trial
reported simply that Detective Robinson and the victim were
under investigation for an alleged robbery of two drug dealers
two years before the murder. This information, standing alone,
falls well short of admissible evidence demonstrating the
victim's corrupt relationship with the investigating detectives.
 31

3. Abuse of discretion. Having determined that the judge

did not clearly err in her findings on the newly discovered

evidence and that her consideration of the issue is not barred

by direct estoppel, we now address whether the judge abused her

discretion in concluding that "justice has not been done" and

ordering a new trial. See Mass. R. Crim. P. 30 (b) ("The trial

judge . . . may grant a new trial at any time if it appears that

justice may not have been done").

"Whether an appeal is from the granting or the denial of a

motion for a new trial, an appellate court will examine the

motion judge's conclusion only to determine whether there has

been a significant error of law or other abuse of discretion."

Grace, 397 Mass. at 307. See Commonwealth v. Raymond, 450 Mass.

729, 733 (2008). "Under the abuse of discretion standard, the

issue is whether the judge's decision resulted from 'a clear

error of judgment in weighing the factors relevant to the

decision . . . such that the decision falls outside the range of

reasonable alternatives.'" Commonwealth v. Kolenovic, 471 Mass.

664, 672 (2015), quoting L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014).

A judge may order a new trial where newly discovered

evidence "casts real doubt on the justice of the conviction."

Cowels, 470 Mass. at 616, quoting Grace, 397 Mass. at 305. To

conclude that the evidence casts real doubt on the justice of
 32

the conviction, "[t]he motion 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." Cowels, supra, quoting Grace, supra.

Consequently, the issue before us is whether the judge made a

clear error of judgment in determining that the newly discovered

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

deliberations." See Cowels, supra.

The Commonwealth contends that there is no doubt cast on

the justice of the convictions because none of the newly

discovered evidence affects the compelling evidence that the

defendant was in possession of the murder weapon and the

victim's service pistol and that he caused the weapons to be

discarded in a field in the days following the killing. The

Commonwealth notes that the judge did not vacate the defendant's

convictions from the first trial of the unlawful possession of

these firearms and that the defendant does not challenge these

convictions on appeal. The Commonwealth contends, in essence,

that given the defendant's possession of these weapons, the

newly discovered evidence regarding the victim's complicity with

the corrupt detectives and the unexplored leads regarding third-
 33

party culprits is nothing more than "a tale . . . , full of

sound and fury, signifying nothing."24

We agree that the defendant's possession and concealment of

these weapons only days after the killing, combined with the

evidence that he was at the Walgreens at or about the time of

the killing, is evidence that he was involved in the killing in

some fashion. And, had the defendant been charged with being an

accessory after the fact to this murder, this evidence would be

more than sufficient to support his conviction of that

indictment. See Commonwealth v. Simpkins, 470 Mass. 458, 462

(2015). But, as demonstrated in the first trial, where the jury

found the defendant guilty of the firearm indictment but were

unable to reach a verdict regarding the indictments for murder

and armed robbery, his possession and concealment of these

firearms does not necessarily mean that he was the shooter or

knowingly participated with Patterson in the shooting. See id.

at 461-463. See also Commonwealth v. Zanetti, 454 Mass. 449,

470 (2009) (Appendix). There are at least two alternative

scenarios that a jury would need to reject in order to find the

defendant guilty of armed robbery and murder.

First, the jury would need to reject the possibility,

argued in closing by the defendant, that Patterson alone shot

24 William Shakespeare, MacBeth act V, scene 5.
 34

the victim, without the defendant's knowing participation, and

then passed the murder weapon and the victim's service weapon to

the defendant. The strongest evidence of the defendant's

knowing participation in the murder was the testimony of Rosa

Sanchez, who testified that at approximately 3:05 A.M., which

was between thirty and forty-five minutes before the victim's

shooting, she saw a man she later identified as the defendant

"crouching by" the victim's vehicle in front of the Walgreens

where the victim sat sleeping. No doubt for this reason, much

of the defendant's closing argument was devoted to challenging

the accuracy of her testimony. Trial counsel noted in closing

argument that she had said nothing to the store clerk or her

husband about this suspicious behavior at the time of the event;

she instead went to look at greeting cards inside Walgreens.

Counsel also noted in closing argument that Acerra, whom Sanchez

knew, was with her when she was shown the photographic arrays,

that she was told to "pick out the guy,"25 and that Acerra was a

"close friend" of the victim.26

It is not difficult to imagine how different the

defendant's closing argument would have been had he known then

25On cross-examination, Sanchez agreed that Detective
Richard Ross told her to "pick the guy out."

26Defense counsel did not mention that Detective Robinson
was with Detective Acerra.
 35

that Acerra not only was a close friend of the victim, but also

was complicit with the victim in criminal acts of police

corruption, including a theft of thousands of dollars in cash

from a marijuana dealer earlier that month. Defense counsel

could have argued that the detectives had a strong motive to

shore up the case against the two men in the Volkswagen --

suspects unconnected to the detectives' involvement with the

victim in illegal activities -- by ensuring that they obtained

an identification of one of them in an incriminating position

shortly before the shooting. Defense counsel could further have

argued that, in addition to motive, Detectives Robinson and

Acerra had the opportunity to strengthen the case against the

defendant and Patterson by leaning on Sanchez to pick the

"right" person immediately after she had picked the "wrong"

person. Sanchez's identification of the defendant was already

suspect because she initially had identified someone else -- the

same person whom her husband selected -- as the person she saw

crouching near the victim's vehicle, and because she claimed to

be rattled by the photograph of her stalker in the array, but

later was unable to identify the photograph of the person she

said had stalked her. We cannot say with confidence that a

reasonable jury would have credited her identification if they

had known of the newly discovered evidence regarding the
 36

victim's complicity with the corrupt detectives who helped

procure the identification.

Second, the jury would also need to reject the possibility

that someone other than the defendant and Patterson shot the

victim, and that the defendant somehow recovered and took

possession of the murder weapon and the victim's service weapon

after the killing. This was not an argument presented by the

defendant at trial, but as the judge noted, the defense strategy

may have changed had the newly discovered evidence been known to

the defense. As the motion judge noted, the newly discovered

evidence revealed that many individuals had a motive to kill the

victim because of his various misdeeds, that there were

investigative leads indicating that others may have been

responsible for his murder, and that, apart from the Foley

allegation, none of these leads was explored.27 The newly

discovered evidence also would have provided an explanation why

these leads were not explored -- that corrupt detectives did not

wish any of these leads to uncover evidence that might reveal

their own criminal misconduct.

27Defense counsel could have argued that even the
exploration of the Foley allegation was inadequate, in that the
two detectives only interviewed Raymond Armstead, Jr., and
failed to confirm a verifiable fact upon which the allegation
was premised: that Armstead Jr. had a teenaged sister.
 37

Perhaps most important, with this newly discovered

evidence, a reasonable jury likely would have had diminished

confidence in the integrity and thoroughness of the police

investigation in general. Not only would this likely have

caused them to question the reliability of some of the evidence

presented by the prosecution, it also may have elevated in

significance certain aspects of the investigation that may

otherwise have appeared unimportant. For instance, how did the

police know to ask Tina Erti, the roommate of the victim's girl

friend whether the victim possessed a small caliber gun with a

pearl handle five days before a small caliber gun with a pearl-

colored handle was found that was later determined to be the

murder weapon?28 Did this suggest that the police had

information that the victim had been shot with his own firearm,

which would itself suggest the possibility that the victim was

killed by someone he knew (or by someone assisted by someone he

knew)?

The Commonwealth argues that the newly discovered evidence

is limited only to Bowden evidence that impeaches the

investigation by the police and that we have previously stated

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

the testimony of a witness does not ordinarily warrant a new

28 See note 18, supra.
 38

trial." Commonwealth v. McGee, 467 Mass. 141, 150 (2014),

quoting Commonwealth v. Simmons, 417 Mass. 60, 72 (1994). We

agree that it would be a rare case where newly discovered Bowden

evidence alone would warrant a new trial. But it is a rare case

where police detectives investigating the killing of another

police detective were complicit with the victim in numerous

recent acts of criminal police misconduct and where the

integrity of the investigation was potentially compromised by

their conflicting interest in ensuring that the investigation of

the murder did not uncover their own criminal misdeeds.

In discussing the admissibility of Bowden evidence, we have

said that

"the inference that may be drawn from an inadequate police
investigation is that the evidence at trial may be
inadequate or unreliable because the police failed to
conduct the scientific tests or to pursue leads that a
reasonable police investigation would have conducted or
investigated, and these tests or investigation reasonably
may have led to significant evidence of the defendant's
guilt or innocence. A jury may find a reasonable doubt if
they conclude that the investigation was careless,
incomplete, or so focused on the defendant that it ignored
leads that may have suggested other culprits."

Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009).

Implicit in this description of the potential inferential

significance of Bowden evidence is that the investigation,

however flawed, was conducted in good faith by honest police

officers. Where, as here, the newly discovered Bowden evidence

raises substantial doubts regarding the good faith and honesty
 39

of some of the investigating detectives, its potential

inferential significance is multiplied many-fold, because a jury

reasonably may have had diminished confidence in the integrity

and good faith of the investigation and the evidence that arose

from it.

The determination of whether newly discovered evidence

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

requires that the new evidence be considered in light of the

totality of the evidence presented at trial, and the evidence

supporting the defendant's knowing participation in the murder

and armed robbery in this case was not overwhelming. There was

no eyewitness to the shooting and no physical evidence linking

the defendant to the victim's vehicle.29 Sanchez's

identification of the defendant occurred only after she

identified another individual from the photographic array. The

motive offered by the Commonwealth -- that the defendant saw a

police officer sleeping in his vehicle when he went to Walgreens

to purchase diapers and hatched a scheme to kill him and take

his service weapon as a trophy -- is not particularly

compelling. Although several witnesses testified to seeing

29As already noted, the only physical evidence linking
Patterson to the victim's vehicle were the fingerprints
identified as belonging to him, and this expert opinion was
subsequently determined by this court not to meet the
reliability standards necessary for admission at trial. See
note 8, supra.
 40

people matching the descriptions of the defendant and Patterson

in the Walgreens parking lot and surrounding areas, the

significance of that evidence is limited by the defendant's

admission early in the investigation that he was at Walgreens

that night. The strongest consciousness of guilt evidence is

the alteration of Patterson's vehicle after the shooting, but

there is no evidence that the defendant participated in that

alteration.

When we consider the newly discovered evidence together

with the totality of the evidence presented at trial, we

conclude that, in the unusual circumstances of this case, the

judge did not abuse her discretion in determining that the newly

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

deliberations" and that a new trial is required for justice to

be done.

Conclusion. The motion judge did not abuse her discretion

in ruling that the newly discovered evidence warrants a new

trial. The order allowing the defendant's motion for a new

trial as to the indictments of murder and armed robbery is

affirmed.

So ordered.