Commonwealth v. PinaCommonwealth v. Pina
Homicide. Firearms. Evidence, Exculpatory, Impeachment of credibility, Identification, Disclosure of evidence, Police report, Third-party culprit. Practice, Criminal, Witness, Disclosure of evidence, Waiver, New trial. Witness, Credibility, Impeachment. Mental Health. Identification. Deoxyribonucleic Acid. Waiver.
Indictments found and returned in the Superior Court Department on October 27, 1993.
Following review by this court, 430 Mass. 266 (1999), a motion for a new trial, filed on November 18, 2020, was heard by Peter B. Krupp, J.
A request for leave to appeal was allowed by Gaziano, J., in the Supreme Judicial Court for the county of Suffolk.
Ian MacLean, Assistant District Attorney, for the Commonwealth.
Jill A. Tessier (Lisa M. Kavanaugh also present) for the defendant.
Radha Natarajan & Katharine Naples-Mitchell, for New England Innocence Project & another, amici curiae, submitted a brief.
In Commonwealth v. Pina, 430 Mass. 266, 275 (1999) (Pina I), we affirmed the defendant‘s convictions and declined to grant the defendant relief under
In his third motion, the defendant argued that he was entitled to a new trial because, among other reasons, (1) evidence that Annas was psychiatrically hospitalized at the time of her testimony constituted either newly discovered or
A Superior Court judge (motion judge) concluded that, given the totality of the nondisclosed, newly discovered, and newly available evidence, “justice may not have been done,”
The matter is now before us on the Commonwealth‘s appeal from the motion judge‘s decision, after a single justice of the county court allowed the Commonwealth‘s application for leave to appeal. Discerning no error of law or abuse of discretion by the motion judge, we affirm the allowance of the defendant‘s motion for a new trial.2
Pina I, 430 Mass. at 267-269, presented the facts underlying the defendant‘s convictions. On February 26, 1993, the victim was shot while selling drugs on Horadan Way in the Mission Hill section of Boston. The shooter fled in the direction of McGreevy Way, where police officers later retrieved a revolver from a snowbank. The Commonwealth did not present any forensic, video, or photographic evidence tying the defendant to the shooting. However, two eyewitnesses -- Hall and Annas -- both identified the defendant as the shooter.
We focus our remaining discussion of the background on the specific facts relevant to the issues in this appeal, which we draw from certain trial evidence, the motion judge‘s factual findings, and additiоnal details from the record that are consistent with the judge‘s findings and determinations of credibility. See Commonwealth v. Gaines, 494 Mass. 525, 532 (2024); Commonwealth v. Lessieur, 488 Mass. 620, 621 (2021). We reserve further details for our discussion below.
a. Trial testimony.
i. Timothy Hall.
According to Hall‘s trial testimony, on February 26, 1993, at around 7:30 or 8 P.M., Hall traveled to Horadan Way to purchase heroin from the victim. While he was negotiating with the victim to buy the drugs, a “lighter complexioned, heavy-set” man who was “about [Hall‘s] height” started walking toward him and the victim at a “moderate” pace. As the man approached, Hall could hear him
An officer who spoke with Hall within ten minutes of the shooting testified that Hall described the shooter as “a [B]lack male approximately five [feet,] nine [inches], between the ages of twenty-three and twenty-six, weighing . . . a hundred and sixty [to] a hundred and eighty pounds, wearing a black knit hat, a red . . . winter waist-length jacket, dark pants and dark shoes.”3
Hall was then taken to a police station in the Roxbury section of Boston. He testified that the police showed him a
ii. Debra Annas.
At trial, Annas testified that she had known the defendant for “[m]aybe a year and a half, [or] two years” prior to the shooting. The defendant lived across from her on Horadan Way in thе Mission Hill housing development. Annas claimed that she had been purchasing drugs from him for “[a] couple of months” before the shooting, including “[e]very night” in February 1993.
On the evening of February 26, 1993, Annas went to 31 Horadan Way to purchase drugs. Outside of that address was a crowd of fifteen to twenty-five people, including the victim. Annas asked the victim for drugs, but he did not have the type she wanted. According to Annas, she was standing on the street corner of 31 Horadan Way when, at about 9 P.M., she saw a “maroonish color car” pull up “really fast,” and the driver
Annas testified that she then saw the defendant return to the car and retrieve a gun from between the seats. He then “very heavily walked really fast” toward the victim while singing a rap song. Annas saw “a flash” from the gun and heard “[a] few” shots. She testified that she witnessed the defendant “shoot [the victim] in the eye.” She then saw the defendant run toward McGreevy Way.
Annas did not report what she witnessed to the police the night of the murder because “you don‘t run to the police in the projects.” While Annas could not recall the exact date when she first spoke with law enforcement regarding the murder, she testified that she initially discussed what she saw with police “several months” later, after an unrelated killing of one of her friends. Detective John McCarthy of the Boston police
iii. Officers Yvonne Moschella and James O‘Loughlin.
On cross-examination of two Boston Housing Authority police officers -- Yvonne Moschella and James O‘Loughlin -- defense counsel attempted to connect the shooting victim to a robbery that occurred earlier on the day of the shooting. According to Moschella and O‘Loughlin, at approximately 5 P.M. on February 26, 1993 -- several hours before the victim was shot -- the officers observed two men walking on Annunciation Road, which is a few blocks away from Horadan Way. One of the men, who was
The individual did, however, point out the man who allegedly committed the robbery. Both officers testified that they observed the alleged robber entering an apartment further down Annunciation Road. Moschella, who could see the alleged rоbber‘s face, estimated that he was twenty yards away. O‘Loughlin, on the other hand, could not see the alleged robber‘s face and believed he was one hundred yards away. Both officers testified that the alleged robber was a Black male with a medium complexion, standing approximately five feet, ten inches tall, weighing about 170 pounds, and wearing a red jacket. Moschella added that the alleged robber had “cropped hair.”
The description of the Annunciation Road robber was consistent with that of the shooting victim. At trial, Moschella and O‘Loughlin, who had responded to the scene of the shooting after hearing gunshots, described the shooting victim as a Black male with a medium complexion, standing approximately
The officers also provided descriptions of the bleeding man and the other man with him. The bleeding man was a “medium skinned,” “thin [B]lack male,” standing six feet, one inch tall. Additionally, the officers estimated he was from twenty-three to twenty-five years old. The other man was an approximately twenty year old Black male, standing about five feet, nine inches tall, with “medium skin” and “more of a medium build.” This other man was “wearing a black knit cap, black pants, and a black jacket.”
iv. The murder weapon.
At trial, defense counsel sought to elicit on cross-examination of McCarthy that a man named Brian Johnson had stolen the revolver used in the murder from his father priоr to the murder, that Johnson had it with him sometime in late February of 1993, and that a friend of Johnson had access to the gun. In support of this line of questioning, at sidebar, defense counsel read into the record excerpts of
b. Newly discovered and available evidence.
i. Annas‘s psychiatric hospitalization.
Unbeknownst to the defense, on October 26, 1995, Annas was admitted to Taunton State Hospital, a psychiatric hospital, pursuant to
On January 10, 1996, the Commonwealth procured a writ of habeas corpus from the Superior Court to the superintendent of the Taunton State Hospital to compel Annas‘s appеarance at the defendant‘s trial. She was transported from the hospital and testified at the trial on January 17, 1996. The prosecutor‘s file contained a note from McCarthy containing the name and telephone number of Annas‘s psychologist at Taunton State Hospital. However, the Commonwealth did not disclose Annas‘s psychiatric hospitalization to the defense. More than a decade after his convictions, the defendant discovered, with help from investigative journalists, that Annas was psychiatrically hospitalized when she testified at the defendant‘s 1996 trial.
At an evidentiary hearing on the defendant‘s present motion for a new trial, two defense experts testified regarding Annas‘s mental health conditions. First, Dr. Nancy Franklin -- a cognitive scientist specializing in human information processing
ii. Third-party culprit evidence.
Years after his convictions, the defendant obtained police reports pursuant to public records requests. These newly discovered police reports revealed that on the night of the murder, three men committed an armed carjacking of a Nissan Maxima “a couple miles away” from the location of the shooting. The stolen vehicle, a maroon four-door sedan, generally matched the description of the car that Annas said was involved in the shooting. The owner of the stolen Nissan told police that he was forced out of the car at gunpoint.
Two weeks later, the police located the Nissan while investigating another crime. After stopping the vehicle, the
iii. DNA results.
Following the allowance of the defendant‘s motion for postconviction forensic testing pursuant to
In 2018, the defendant sent the 2015 DNA data to a DNA analysis firm for analysis using a different testing software. The firm‘s report supported the defendant‘s exclusion as a contributor to the DNA samples recovered from the grip, cylinder, and barrel of the murder weapon; the inner side of the jacket‘s right lapel; the outer side of the jacket‘s left lapel; and the lower area of the jacket‘s hood.
c. Procedural history.
On October 27, 1993, the defendant was indicted on one count of murder, in violation of
At the defendant‘s second trial in January 1996, the defendant was convicted of murder in the first degree on a
Following his direct appeal, the defendant‘s first motion for a new trial, which he filed pro se in 1999, was denied without a hearing. His second motion for a new trial, filed in 2003, was also denied without a hearing. His petitions to appeal from the denials of his first and second motions for a new trial were denied in the county court.
In 2020, Pina filed the instant motion for a new trial. In 2022, the motion judge held an evidentiary hearing that spanned four days. On February 3, 2025, the motion judge issued a memorandum and order allowing the motion.9 The Commonwealth
2. Discussion.
a. Standard of review.
“[A] judge ‘may grant a new trial at any time if it appears that justice may not have been done.‘” Commonwealth v. Brescia, 471 Mass. 381, 388 (2015), quoting
“Where the Commonwealth appeals from the grant of a defendant‘s motion for a new trial, we consider whether the
b. Annas‘s hospitalization.
The defendant argued in the present motion for a new trial that Annas‘s psychiatric hospitalization and treatment constituted both nondisclosed exculpatory evidence and newly discovered evidence. While the motion judge found that the Commonwealth violated its constitutiоnal obligation to disclose exculpatory evidence, we analyze the information about Annas‘s hospitalization as newly
In order to prevail on a motion for a new trial based on newly discovered evidence, “the defendant ‘must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction.‘” Commonwealth v. Drayton, 473 Mass. 23, 31 (2015) (Drayton I), S.C., 479 Mass. 479 (2018), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). To establish that evidence is newly discovered, the defendant must show that the evidence “was unknown to the defendant or trial counsel and not reasonably discoverable at the time of trial or at an earlier motion for a new trial” (quotation and citation omitted). Commonwealth v. Ellis, 475 Mass. 459, 472 (2016).
The question then becomes whether the newly discovered evidence casts real doubt on the justice of the convictions. See Drayton I, 473 Mass. at 31. In determining whether newly discovered evidence casts real doubt on the justice of the convictions, “[t]he inquiry is not whether the verdict[s] would have been different, but rather whether the new evidence would probably have been a real factor in the jury‘s deliberations” (quotation and citation omitted). Commonwealth v. Bateman, 497 Mass. 169, 183 (2026).11
Although we have said that “[n]ewly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial,” Commonwealth v. Pope, 489 Mass. 790, 801 (2022), quoting Commonwealth v. Sullivan, 478 Mass. 369, 383 (2017), “[w]e have never adopted an inflexible rule that newly discovered evidence that merely . . . impeaches a witness‘s testimony is an insufficient basis for a motion for a new trial,” Pope, supra at 802, quoting Commonwealth v. Cowels, 470 Mass. 607, 621 (2015). Rather, we “consider[] the particularities of the scope and impact of that evidence and, importantly, the strength of the Commonwealth‘s case.” Pope, supra.
ask, “[W]ould it have been a real factor in the jury‘s deliberations?” [citation omitted]).
Given this evidence, the motion judge did not abuse his discretion in finding that the defendant could have used Annas‘s history of mental health hospitalizations and diagnoses to attack her credibility and the reliability of her eyewitness identification. As we have long held, “mental impairment, as well as habitual intoxication and drug addiction, may be the
Nevertheless, the Commonwealth contends that given the strength of its case against the defendant, evidence of Annas‘s psychiatric hospitalization and treatment would not have been a real factor in the jury‘s deliberations. Specifically, the Commonwealth points to a number of factors that it claims support Annas‘s identification of the defendant. First, the Commonwealth emphasizes the fact that Annas knew the defendant for one and one-half to two years prior to the shooting and bought drugs from him every night in February 1993. Next, it points out that Annas‘s descriptions of the incident and the shooter were generally consistent with those of Hall. Finally, it notes that Annas‘s testimony at trial was consistent with the
None of these arguments convinces us that the motion judge abused his discretion. First, Annas‘s familiarity with the defendant did not insulate her from misidentification. Franklin testified,
“[P]eople make about five times the number of misidentifications for someone who is only a casual acquaintance versus someone who is a member of one‘s family or one‘s best friend. They make about five times the number of misidentifications for a next-door neighbor as compared with someone in one‘s family or one‘s best friend.”
Next, while it is true that Annas‘s description of the incident and the shooter bore similarities to those of Hall, it is also true, as the motion judge noted, that “Hall‘s testimony differed materially from Annas‘s testimony in many regards.” The motion judge wrote:
“Hall did not describe any involvement by a car, did not describe any type of argument, did not describe the shooter encountering [the victim] more than once, did not observe the shooter to approach [the victim] ‘really fast,’ and did not see the shooter in possession of a gun before the shooter grabbed [the victim] and removed an object from his (the shooter‘s) pocket.”
The motion judge also noted various issues with Hall‘s identification, including his equivocal photographic identification of the defendant on the night of the shooting and inconsistency between Hall‘s testimony and an officer‘s
Additionally, although Annas had not yet been admitted to Taunton State Hospital at the time of the shooting or during the defendant‘s first trial, this does not necessarily mean that Annas did not suffer from her psychiatric conditions at the time of the shooting. The motion judge noted, “Annas reported to the Taunton State Hospital that she had previously been admitted to no less than nine other medical or mental health facilities for psychiatric hospitalizations.” Among these prior hospitalizations, Annas was reportedly committed to a mental health center years prior to the shooting and admitted herself voluntarily to the same mentаl health center about two months before the defendant‘s first trial.
Lastly, and importantly, with respect to the strength of the Commonwealth‘s case, see Pope, 489 Mass. at 802, and the importance of Annas‘s testimony, the motion judge noted:
“This is not a situation where there was a mountain of other evidence available to convict [the] defendant. Annas was the key to the Commonwealth‘s case. There was no forensic, video, photographic or other hard evidence linking [the] defendant to the shooting. There was no evidence that [the] defendant knew [the victim] or had any motive to shoot [him].13 Undermining Annas‘[s] credibility was crucial to the defense.”
“[I]n rare cases, a new trial may be warranted ‘[w]here the Commonwealth‘s case depends so heavily on the testimony of a witness’ and where the newly discovered evidence ‘seriously undermines the credibility of that witness,‘” Cowels, 470 Mass. at 621, quoting Commonwealth v. Liebman, 388 Mass. 483, 489 (1983). Cf. Gaines, 494 Mass. at 542 (“The defendant‘s inability to challenge the credibility of a key witness who placed the defendant near the scene of the crimes on the day of the shooting raised a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial” [quotation and citation omitted]); Commonwealth v. Caldwell, 487 Mass. 370, 377 (2021) (evidence would have been real factor in jury‘s deliberations because it “would have provided the defendant with the strongest available basis for impeaching the credibility of [a] critical witness“).
Here, there is no question that the Commonwealth‘s case depended heavily on Annas‘s testimony. As for whether the treatment records so seriously undermine the credibility of Annas‘s testimony that they warrant a new trial, the
We need not decide whether the treatment records are sufficient on their own to warrant a new trial. The motion judge treated this evidence as one of the “factors act[ing] in concert to cause a substantial risk of a miscarriage of justice.” Rosario, 477 Mass. at 77-78. It was not an abuse of discretion for him to do so. That is, it was proper to consider the evidence relating to Annas‘s psychiatric hospitalization as part of the basis for ordering a new trial.
c. Third-party culprit evidence.
Because the motion judge could not definitively determine whether the third-party culprit evidence concerning the carjacking on the night of the murder was known to the prosecution team, he analyzed the material as newly discovered evidence rather than evidence that the prosecution failed to disclose. In so doing, he found the third-party culprit evidence “would have supplied missing links
On appeal, the Commonwealth does not contest the motion judge‘s finding that the third-party culprit evidence was newly discovered. Instead, it contends that the motion judge erred in concluding that such evidence casts real doubt on the justice of the defendant‘s convictions because the shooting occurred prior to the carjacking and, as such, the shooter could not have used the stolen vehicle to arrive at the murder scene. We disаgree.
To be sure, there does appear to be a discrepancy in timing when cross-referencing records concerning the stolen vehicle with evidence at trial concerning the shooting. According to a stolen vehicle report, the Nissan was stolen between 9:30 and 10 P.M. on February 26, 1993. Comparatively, the evidence at trial placed the shooting of the victim up to ninety minutes earlier that day -- between 8:30 and 9 P.M.
Certainly, this timing discrepancy may weaken a third-party culprit defense that Johnson, Woods, or the other occupant of the stolen Nissan was involved in the shooting. But it does not mean that the motion judge abused his discretion in concluding that the newly discovered evidence casts real doubt on the justice of the defendant‘s convictions -- particularly where the
Notwithstanding this conflicting evidence, the motion judge properly determined that the newly discovered evidence “probably
Further, physical descriptions provided bases to potentially link both Johnson and the shooting victim to the Annunciation Road robbery on the day of the murder. At the time of his arrest, Johnson had a scar over his right eye, which was consistent with the injury police observed on the bleeding man who had been robbed on Annunciation Road. Additionally, the description of the perpetrator of the Annunciation Road robbery, which was committed several hours before the shooting, was consistent with that of the victim of the shooting.
The motion judge determined,
“These facts, coupled with the fact that Johnson had stolen and possessed the murder weapon, suggested a link between Johnson, the Annunciation Road robbery, and the shooting of [the victim]. This inferential link was strengthened by the trial testimony itself: (i) that the police reported that the victim of the shоoting (Robinson) may have been, or may have been confused for (indeed, the police at least initially confused him for), the Annunciation Road robber; and (ii) the victims of the Annunciation Road robbery
refused to cooperate with the police[,] and one said[,] ‘I‘ll take care of it myself.‘”
In the absence of this link, the defendant was barred from introducing evidence that Johnson had stolen the murder weapon from his father prior to the murder and that he had it with him sometime in late February 1993. The newly discovered evidence would have provided a nonspeculative basis for the defendant‘s theories of a third-party culprit. The motion judge appropriately concluded, “Such information would have likely caused the court to admit the evidence about Johnson having possessed the murder weapon in late February.”
Thus, given the foregoing, the motion judge did not abuse his discretion in finding that the newly discovered third-pаrty culprit evidence casts real doubt on the justice of the defendant‘s convictions.
d. DNA evidence.
Finally, we consider the Commonwealth‘s argument as to the newly available DNA evidence, which the motion judge found “was only discoverable with the aid of scientific techniques and data analysis tools developed long after [the] defendant‘s trial and after his second motion for a new trial.” While determining that the DNA evidence would not have been sufficient to justify a new trial on its own, the motion judge nonetheless considered it to “marginally further
The Commonwealth argues that the motion judge erred by making factual findings regarding the DNA testing without holding an evidentiary hearing where the Commonwealth could have, through cross-examination and calling its own witnesses, challenged the defendant‘s factual assertions or their significance.
In adjudicating a motion for a new trial, “[t]he judge may rule on the issue or issues presented by such motion on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits.”
“[A] claim is procedurally waived whenever a litigant fails to make a timely objection” (quotation and citation omitted). Commonwealth v. Robinson, 480 Mass. 146, 150 (2018), S.C., 493 Mass. 303 (2024). The Commonwealth -- having had an opportunity to object to the motion judge‘s decision not to hear live testimony on this issue but having failed to do so -- cannot now turn around and say that it was an abuse of discretion to make factual findings without hearing live testimony on the DNA evidence. See Commonwealth v. Mauricio, 477 Mass. 588, 594 (2017) (declining to address merits of issue where Commonwealth did not raise issuе below and, thus, merits of issue were not
3. Conclusion.
For the foregoing reasons, we hold that the motion judge did not commit a significant error of law or abuse his discretion in concluding that the newly discovered and newly available evidence casts real doubt on the justice of the defendant‘s convictions and that, therefore, the defendant is entitled to a new trial. We affirm the order allowing the defendant‘s motion for a new trial and remand the matter to the Superior Court for a new trial if the Commonwealth chooses to pursue one.
So ordered.