The Massachusetts Supreme Judicial Court today ruled that there is a “constitutional exception” to the hearsay rule that has not been previously recognized in Massachusetts. The name of the case is Commonwealth v. Drayton.
The defendant, a drug dealer, was convicted by a superior court jury of shooting to death another drug dealer in a Boston apartment. The apartment’s resident, James Jackson, allowed both the defendant and the victim to sell drugs in the apartment in exchange for money and free drugs for himself. In September of 2001, the defendant was drinking and rolling cocaine-laced cigarettes in Jackson’s apartment. The victim showed up and began arguing with the defendant. Jackson testified at trial that he went into the bathroom alone and then heard a gunshot. When he returned to the living room, he saw the defendant shoot the victim five times.
Jackson was a nightmare of a witness. He admitted during the trial that he started drinking alcohol when he was seven years old and began using cocaine in his late-20s. He had been using crack cocaine for almost a decade and was drinking and smoking crack on the day of the murder. Further, he had barely slept in the days leading up to the killing. Adding to his credibility problems were endless inconsistencies between his trial testimony and other statements he had previously made to the 911 operator, the police, and the grand jury. Jackson was the only percipient witness to testify at the trial and despite his obvious credibility problems, the jury convicted the defendant of first-degree murder.
Approximately a year and a half after his conviction, the defendant filed a motion for a new trial based on newly discovered evidence in the form of an affidavit by a woman named Debra. Debra had been in the apartment at the time of the shooting. She did not want to be involved in the case, and she refused to testify at the trial. However, after the verdict, Debra was diagnosed with terminal cancer and decided to clear her conscience and tell her story. She wrote in an affidavit that at the moment the victim was shot, she was having sex with Jackson in the bathroom. Therefore, it would have been impossible for Jackson to have seen the shooting, as he claimed in his trial testimony.
The defendant’s attorney requested permission to conduct a deposition of Debra, but she died before the judge made a decision. The trial judge then denied the defendant’s motion for a new trial, reasoning that Debra’s statements contained in her affidavit were hearsay and therefore would be inadmissible.
There is an exception to the hearsay rule called the “dying declaration.” A statement made by someone who believes death is imminent and dies shortly thereafter is admissible if the statement concerns the cause or circumstances involving the person’s own impending death. For example, if the police respond to a hospital to interview a shooting victim, and the victim tells the police right before her death that her boyfriend shot her, the victim’s statement will likely be admissible as a dying declaration. Debra’s statements in this case are not dying declarations because they do not involve her own impending death.
However, the Supreme Judicial Court ruled that Debra’s statements might qualify as “constitutionally-based” hearsay exceptions. Pursuant to the Sixth Amendment’s compulsory process clause and the Fourteenth Amendment’s due process clause, a defendant is entitled to introduce trustworthy evidence that is critical to his defense. In this case, Debra’s statements would clearly be critical to the defendant’s case. The question, then, is whether her statements bear “persuasive assurances of trustworthiness.” The SJC remanded the case to the superior court to allow a judge to consider that question. If Debra’s statements are deemed trustworthy, the defendant will likely receive a new trial.
While the constitutionally-based hearsay exception will rarely be applicable in criminal cases, this defendant deserves to have a jury hear Debra’s statements. A murder conviction based on the type of flimsy evidence in this case should not stand.