COMMONWEALTH VS. ROBERT MCWILLIAMS.
Supreme Judicial Court of Massachusetts
February 12, 2016
473 Mass. 606 (2016)
Middlesex. October 8, 2015. - February 12, 2016.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
At the trial of an indictment charging attempted robbery, the defendant‘s conviction was supported by sufficient evidence of an overt act by the defendant that was near enough to completing the robbery to be punishable as an attempt. [610-612]
This court concluded that a criminal defendant‘s voluntary, unsolicited statements that are not the product of police questioning and that are made more than six hours after his or her arrest and before presentment do not require suppression; accordingly, a criminal defendant‘s counsel did not provide ineffective assistance by not having filed a motion to suppress such statements by the defendant and the fruits thereof. [612-615]
There was no error in the denial of a criminal defendant‘s motion for postconviction discovery. [615]
A Superior Court judge did not err in denying a criminal defendant‘s motion for a new trial, where counsel had not been ineffective in failing to file a motion to suppress certain identification evidence, in that the circumstances surrounding the witness‘s out-of-court identifications of the defendant, which were not made during procedures conducted by the police, were not especially suggestive, in that the witness‘s in-court identification of the defendant was not tainted by her previous out-of-court identifications, and in that, even if the identifications should have been suppressed, there was no reasonable possibility that the verdict would have been different [615-620]; and where counsel had not been ineffective in erroneously advising the defendant that, if he testified at trial, five prior convictions could be used to impeach him, in that the defendant failed to show that his decision not to testify had been based on that incorrect advice [620-622]; further, the judge properly determined that an evidentiary hearing on the motion was not warranted [622-623].
INDICTMENTS found and returned in the Superior Court Department on October 25, 2011.
The cases were tried before Elizabeth M. Fahey, J., and motions for a required finding of not guilty, for a new trial, and for
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Timothy St. Lawrence for the defendant.
Crystal L. Lyons, Assistant District Attorney, for the Commonwealth.
SPINA, J. In this case, we address the question left open in Commonwealth v. Fortunato, 466 Mass. 500, 509 (2013): whether voluntary, unsolicited statements that are not the product of police questioning, made more than six hours after arrest, must be suppressed under the safe harbor rule established in Commonwealth v. Rosario, 422 Mass. 48, 56-57 (1996). Robert McWilliams, the defendant, was convicted of robbery while armed and masked, occurring on July 7, 2011; and of attempted robbery, occurring on July 26, 2011. On appeal, he argues that the judge erred by (1) denying his motion for a required finding of not guilty; (2) denying (without a hearing) his motion for a new trial, in which he asserted several claims of ineffective assistance of counsel; and (3) denying his motion for postconviction discovery. For the following reasons we affirm the judge‘s rulings.
1. Background. The jury could have found the following facts. On July 7, 2011, a bank located in the Kendall Square area of Cambridge was robbed at gunpoint of $2,614.
Prior to the robbery, Edward Grigoryants, an employee of a business located at One Broadway, the same building as the bank, was taking a smoking break around midday in the designated smoking area located in front of the bank. He noticed a tall African-American man wearing a “doo rag” on his head, leaning against a column near the smoking section. The man had broad shoulders and short hair and was carrying a small black pouch. Grigoryants identified this man as the defendant in court. After two to three minutes, Grigoryants went back inside.
At 1:23 P.M., the bank‘s surveillance cameras show the defendant entering the bank. At the time, a customer, Marie Saint-Surin, the bank‘s assistant manager, and Kaltoum El Hafidi, a teller, were in the bank. The defendant was masked at the time, but El Hafidi still could see his eyes and part of his mouth and nose. The defendant approached the teller window. He pointed a “big black gun” at El Hafidi and said that he was sorry to scare her and that he was not going to hurt her, and demanded she give him the money. El Hafidi complied. Once the defendant received the
On July 26, 2011, Grigoryants was taking another smoking break in the same area around midday. While he was smoking, Grigoryants recognized a man walking by him as the man who robbed the bank on July 7. The individual had the same body build, broad shoulders, and height; however, his hairstyle was different. He had dreadlocks as opposed to the short hair observed on July 7, and the dreadlocks appeared to be a wig. The defendant was carrying a small black pouch that was similar to the one the robber carried on July 7. Grigoryants followed the man a short distance and used his cellular telephone to take a photograph of the man‘s back.
Grigoryants went into the bank and showed the photograph to Michelle Garris, the teller-manager. He asked whether she recognized the individual in the photograph. Grigoryants told Garris that he believed that the man was the person who had robbed the bank on July 7. Because Garris had not been working on the day of the robbery, she showed the photograph to El Hafidi. Grigoryants asked El Hafidi if the man in the photograph was the same man who robbed the bank on July 7. At first, El Hafidi was unsure the photograph depicted the same man because the man in the photograph had hair and a beard and was wearing sunglasses. Grigoryants told El Hafidi and Garris that the individual in the photograph was currently outside the bank. They were in the
The police were given a description of the individual and told how he was believed to have committed a bank robbery earlier that month. On receiving a dispatch, Officers Eric Derman and Marlin Rivera proceeded to the scene, arriving within three minutes of Garris‘s telephone call to the police. Once they arrived, they observed the defendant and determined that he fit the description they had been given. Officer Derman approached the defendant from the front while Officer Rivera approached him from behind. He observed the defendant holding a black nylon “draw-string type” bag and saw an outline of what appeared to be a handle of a gun. After the defendant was handcuffed, Derman determined that the defendant‘s dreadlocks were a wig. The black bag that the defendant was holding contained a plastic handgun and a beard and mustache “disguise.” At the time of his arrest, the defendant was wearing a white or light gray long-sleeved T-shirt, running pants with a white stripe down the side, and sunglasses. The gun was later determined to be a pellet gun. Detective Jack Crowley arrived on the scene after the defendant was handcuffed. Detective Crowley observed the defendant to be about six feet, two inches tall. He spoke with El Hafidi and asked her whether the person she saw outside the bank was the person who had robbed the bank on July 7. She said that she was “positively certain” that it was the person who had robbed her.
At the police station, Crowley conducted an interview with the defendant. The defendant claimed that he had been sitting outside the bank that day to get some fresh air. Sometime later, after the interview ended, the defendant asked the booking officer if he could talk to Crowley because he needed a favor. The defendant
2. Motion for a required finding of not guilty - attempted robbery. The defendant argues that the Commonwealth presented insufficient evidence to show an overt act that was near enough to completing the robbery to be punishable as an attempt and, therefore, his motion for a required finding of not guilty should have been allowed. We disagree.
When reviewing a motion for a required finding of not guilty, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). We must consider whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
This court has interpreted the law of attempt for over one hundred years; however, the case law interpreting the language of
There are two categories of attempt. Bell, 455 Mass. at 412-413, quoting Peaslee, 177 Mass. at 271-272. The first and most obvious form of attempt occurs when a person performs the last act required to complete a crime, but for some unanticipated reason, his or her efforts are thwarted, whether by bad aim or a
In this case, we are dealing with the second category of attempt. Here, the defendant was still at the preparatory stage and had not yet performed the last act necessary to commit the crime of armed robbery. The defendant argues that he still had much to do before an armed robbery could be completed and that, although the evidence indicated he was prepared to rob the bank, it did not rise to the level of an overt act that puts him near the commission of a crime. We conclude that the evidence was sufficient to convict the defendant of attempted robbery.
The defendant was seen sitting twenty-five feet away from the bank he had robbed three weeks earlier. He was close enough to the bank that Saint-Surin and El Hafidi were able to identify him as the man who had robbed the bank on July 7. Seated just outside the bank, the defendant had the then-present ability to walk into the bank and rob it. His intention to rob the bank was supported by strong evidence. He was wearing the same clothing as he did on July 7, a long-sleeved white or light-colored shirt and running
Reference to the factors articulated in Kennedy, 170 Mass. at 22, supports our decision. The first factor, seriousness of the crime, is readily satisfied. Armed robbery is a felony punishable by up to life in prison. The second factor, uncertainty as to whether the defendant was going to complete the crime, was low. The defendant had in his possession all the necessary materials to rob the bank, he had robbed the same bank three weeks before, and when he was apprehended he was sitting in front of the bank in the same area where he had been standing immediately prior to the robbery on July 7. The third factor, the seriousness of the harm that would have been done had the defendant completed the crime, was substantial. The defendant was armed with a pellet gun that could cause serious injury to a person if fired. The trial judge‘s decision to deny the motion for a required finding of not guilty was correct.
3. Ineffective assistance of counsel - motion to suppress statements. The defendant argues that the judge erred in denying his motion for a new trial, which claimed that trial counsel had been ineffective for failing to file a motion to suppress statements the defendant made to police more than six hours after his arrest, in violation of the safe harbor rule established in Rosario, 422 Mass. at 56-57. Further, the defendant argues that the bicycle and
To show that counsel was ineffective, a defendant must first show that “there has been serious incompetency, inefficiency, or inattention of counsel” and behavior that falls “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If the defendant is successful in proving the first prong, he then must show that counsel‘s omission “has likely deprived the defendant of an otherwise available, substantial ground of defence.” Id.
In Rosario, this court announced a bright line rule stating that “[a]n otherwise admissible statement is not to be excluded on the ground of unreasonable delay in arraignment, if the statement is made within six hours of the arrest (day or night), or if (at any time) the defendant made an informed and voluntary written or recorded waiver of his right to be arraigned without unreasonable delay.” Rosario, 422 Mass. at 56. Exceptions may apply in the rare case
Unlike in Rosario and Fortunato, the defendant‘s statements in this case were not in response to police questioning. Unlike in Fortunato, the defendant and Detective Crowley did not have a conversation about the robbery after the safe harbor period expired. See Fortunato, 466 Mass. at 502-503. The conversation here consisted solely of the defendant‘s volunteered, unsolicited request of Crowley that Crowley retrieve his eyeglasses. The fact that Crowley followed the defendant‘s directions to locate his bicycle and, in the process, noticed that there were security cameras at the garage was not a product of questioning about any crime. “[T]he mere passage of six hours,” absent any direct or indirect efforts by the police to prompt the defendant to speak about the robbery or engage him in conversation likely to lead to the subject of the robbery, does not violate the safe harbor rule. See Commonwealth v. Perez, 577 Pa. 360, 372 (2004). Furthermore, in one of the rare instances where this court found an exception to the Rosario six-hour rule, we determined that Rosario did not apply to defendants arrested outside of Massachusetts because the “spirit” of Rosario was not violated.
The goal of Rosario‘s safe harbor rule will not be furthered by automatic suppression of volunteered, unsolicited statements made by this defendant after the expiration of the six-hour safe harbor rule. The exclusionary rule was created to give protection to arrestees from the potentially coercive environment resulting from police questioning. See Commonwealth v. Duncan, 514 Pa. 395, 404 (1987), overruled by Perez, supra at 367-368, 372. Here, there was no police misconduct that offended a policy the exclusionary rule was meant to safeguard. Instead, suppression would only hinder legitimate information gathering. We conclude that a motion to suppress the statements and the fruits thereof would not have succeeded and, therefore, trial counsel was not ineffective. Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
4. Motion for postconviction discovery. The defendant argues that his request for all records relating to his booking and detention at the Cambridge police department would likely uncover evidence that would warrant granting him a new trial, and that therefore it was error to deny his motion for postconviction discovery. We disagree. “Where affidavits filed by the moving party... establish a prima facie case for relief, the judge... may authorize such discovery as is deemed appropriate.”
5. Ineffective assistance of counsel - identification. The defendant argues that the judge erred in denying his motion for a new trial, which claimed that counsel was ineffective for failing to file a motion to suppress the identification evidence.3 He contends that El Hafidi‘s pretrial identifications were made in circum-
The defendant argues that El Hafidi‘s pretrial identifications, which did not involve the police, should be suppressed under common-law principles of fairness articulated in Jones, supra at 108-109. Jones explains that “[c]ommon law principles of fairness dictate that an unreliable identification arising from the especially suggestive circumstances [that did not involve State action] should not be admitted.” Id. at 109. The court did not define the term “especially suggestive.” We recently have said that, where a judge finds an identification to be especially suggestive, a judge must “weigh[ ] the probative value of the identification against the danger of unfair prejudice, and determin[e] whether the latter substantially outweighs the former.” Commonwealth v. Johnson, 473 Mass. 594, 600 (2016). The “ultimate measure” in the analysis always will be “reliability.” Id. at 604. We also said that the especially suggestive standard “need not be set so high” as the unnecessarily suggestive standard applicable to out-of-court identification procedures conducted by the police because an unnecessarily suggestive identification procedure requires suppression, whereas one that is especially suggestive “simply triggers a reliability analysis.” Id.
To trigger a reliability analysis, “the circumstances surrounding the identification need only be so suggestive that there is a substantial risk that they influenced the witness‘s identification of the defendant, inflated his or her level of certainty in the identification, or altered his or her memory of the circumstances of the operative event. Where the independent source of an identification is slim, this level of suggestiveness may be sufficient to support a finding of inadmissibility; where the independent source is substantial, a greater level of suggestiveness would be needed to support a finding that the danger of unfair prejudice substantially outweighs the probative value of the identification.” Id.
The defendant first contends that El Hafidi‘s identification of
The record also supports a finding that El Hafidi relied solely on her experience from July 7, when she was only a few feet from the individual who robbed her, to identify the defendant. When Grigoryants showed her the photograph, which depicted the defendant from behind, she expressed doubt that he was the July 7 robber because the man depicted in the photograph had a hairstyle different from the July 7 robber. She did not identify the
Additionally, the defendant does not argue that El Hafidi‘s description of him or the robber has changed over time, or that she previously had failed to identify the defendant - factors we have said may be relevant when determining whether an identification is reliable in the totality of the circumstances. See Johnson, 473 Mass. at 601. El Hafidi consistently had described the defendant as the robber and even questioned the photograph that Grigoryants showed her because she remembered the robber as having had shorter hair than the man in the photograph. There is no reason to consider El Hafidi‘s identifications to be unreliable so as to warrant suppression under Jones.
The defendant next contends that El Hafidi‘s identification of the defendant outside the bank was especially suggestive because the defendant was not under restraint and El Hafidi was in a predicament of either identifying the defendant as the robber or risking being robbed again. Further, the defendant argues that this identification was especially suggestive because it occurred at the same place and same time of day, while he was wearing similar clothing. The defendant‘s argument has no merit. The defendant controlled the circumstances in which he was identified. It was not scripted or orchestrated by anyone other than the defendant. Although he was exhibiting the same modus operandi as did the robber on July 7, this does not make the circumstances especially suggestive. The defendant was sitting, facing the bank and staring directly into it. El Hafidi, drawing from her experience on July 7, identified the defendant not only based on his clothing but also by his gait, build, and race features that she had ample time to observe on July 7. The identification was reliable.
There is no merit to the defendant‘s claim that El Hafidi‘s viewing the police draw their weapons on the defendant reinforced her previous suggestive identifications. More compelling facts were presented in Commonwealth v. Walker, 421 Mass. 90
Finally, the defendant argues that El Hafidi‘s in-court identification was tainted by inadmissible out-of-court identifications. As we have concluded above, her out-of-court identifications were reliable. Her identification to the police in response to their question whether the defendant was the person who had robbed her on July 7 was not made under conditions that were unnecessarily suggestive. It follows that her in-court identifications were not tainted. See Commonwealth v. Collins, 470 Mass. 255, 262 (2014). Because a motion to suppress likely would not have been successful, the defendant has failed to show that counsel was ineffective in the constitutional sense.5 Comita, 441 Mass. at 91.
Finally, the defendant has not shown that even if El Hafidi‘s
6. Ineffective assistance of counsel - right to testify. The defendant argues that the judge erred in denying his motion for a new trial because his trial counsel erroneously advised him that if he testified at trial, five prior convictions, including two charges of larcenies involving motor vehicles, two charges of knowingly receiving a stolen motor vehicle, and one charge of unlawful possession of a firearm, could be used to impeach him. The defendant argues that he chose not to testify because of trial counsel‘s incorrect advice, and therefore his waiver of his right to testify was invalid. The Commonwealth argues that the record contradicts the defendant‘s assertions. We agree with the Commonwealth.
In anticipation of the Commonwealth‘s resting the next day, the trial judge addressed the defendant‘s motion in limine to exclude evidence of the defendant‘s prior convictions. The judge was
We begin by stating that the five prior convictions pertinent to this case were all time-barred under
“The right to testify on one‘s own behalf. . . is fundamental.” Commonwealth v. Smith, 459 Mass. 538, 550 (2011), quoting Commonwealth v. Degro, 432 Mass. 319, 335 (2000). In his motion for a new trial, the defendant submitted an affidavit explaining that on the evening after the motion in limine was discussed, trial counsel visited the defendant and told him that if he testified, he could be impeached with his prior convictions. The defendant claims that if the prior convictions were not introduced he would have testified at trial. If he had testified, the defendant would have testified that he did not rob the bank on July 7, 2011, and explained why the person on the surveillance tapes was not him, and that he did plan to rob the bank on July 26, 2011, but “lost [his] nerve.” Trial counsel did not file an affidavit. “It is not enough to say that counsel had discouraged him from testifying.” Commonwealth v. Lucien, 440 Mass. 658, 671 (2004). “[A] motion judge may reject a defendant‘s self-serving affidavit as not credible.” Commonwealth v. Colon, 439 Mass. 519, 530 (2003), citing Commonwealth v. Grant, 426 Mass. 667, 673 (1998), S.C., 440 Mass. 1001 (2003). See Commonwealth v. Smith, 456 Mass. 476, 481 (2010).
The defendant further argues that the judge erred in denying the defendant‘s motion for a new trial without an evidentiary hearing. We disagree. “The decision whether to hold an evidentiary hearing is committed to the discretion of the motion judge, and we review that decision for an abuse of discretion.” Commonwealth v. Denis, 442 Mass. 617, 628 (2004). See Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). If no “substantial issue” is raised by the motion or the affidavits submitted, the judge has the discretion to decide postconviction motions without an evidentiary hearing. See Denis, supra, quoting
7. Conclusion. For the foregoing reasons, we affirm the defendant‘s convictions of armed robbery and attempted robbery and the orders denying his motions for a required finding of not guilty, for a new trial, and for postconviction discovery.
So ordered.