Commonwealth v. McWilliams , 473 Mass. 606 ( 2016 )

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revision and are superseded by the advance sheets and bound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-11900
COMMONWEALTH vs. ROBERT McWILLIAMS.
Middlesex. October 8, 2015. - February 12, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Robbery. Attempt. Constitutional Law, Assistance of counsel.
Practice, Criminal, Assistance of counsel, Motion to
suppress, Admissions and confessions, Discovery,
Defendant's decision not to testify, Prior conviction.
Evidence, Admissions and confessions, Prior conviction,
Identification. Identification.
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 postconviction discovery, filed on March 13, 2014, were
considered by her.
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.
2
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
3
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 money, he left the bank through the
automated teller machine (ATM) room and removed his mask.
Before the defendant left the bank, El Hafidi was able to
observe that the defendant had a shaved head. The bank's
surveillance camera showed the defendant leaving at 1:24 P.M.
When he left the bank, the defendant turned right, heading in
the direction of Third Street. A parking garage is located
around the corner from Third Street, which is less than a one-
minute walk from the bank. The garage also is accessible
through One Broadway. Once the defendant left, Saint-Surin
notified the police, who arrived within approximately five
minutes. El Hafidi described the defendant as a tall, African-
4
American man who was "not too fat but a little skinny." He was
wearing "sports clothes" including a "beige white" long-sleeve
T-shirt. He was carrying a "big black gun" and a black bag.
The customer also described the defendant as a tall man wearing
a long-sleeve shirt and nylon wind pants carrying a black or
navy bag. Saint-Surin described the defendant as an African-
American man wearing a white top and pants with a white stripe
on both sides.
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
5
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 lunch room and from there they were able to see
outside the bank. At that time, El Hafidi saw the man walk by
the front of the bank. She entered the main part of the branch
to get a better view. The defendant was then sitting at a table
about twenty-five feet away from the bank, facing the bank. El
Hafidi recognized him because of his race, his build, his gait,
and how he was dressed. Once she recognized the defendant, she
said, "Oh my god, it's him." She called to Saint-Surin and told
her that someone had seen the person who had robbed them outside
the bank. Saint-Surin looked out the window but became
frightened and only looked at him sidewise. She was afraid to
look at his face. She knew it was the same person from July 7
because he was wearing the same type of outfit and had the same
gait. Garris telephoned the Cambridge police.
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
6
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-sleeve 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
7
later, after the interview ended, the defendant asked the
booking officer if he could talk to Crowley because he needed a
favor. The defendant asked Crowley to get his backpack that was
locked to his bicycle. He said his eyeglasses were in the
backpack, and he needed them to see. He told Crowley that the
bicycle was at the entrance of a parking garage located in the
same building as the bank, and that the key was with his other
belongings in the police station. When Crowley went to retrieve
the eyeglasses, he noticed that the garage had a surveillance
camera. He made arrangements with the garage's property
management company to obtain a copy of the surveillance video
recording from July 7. The recording showed the defendant
leaving the garage on July 7, two to three minutes after the
bank robbery.
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
8
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 G. L. c. 274, § 6, the general attempt statute, is not
extensive. The statute requires "a showing that the defendant,
after preparing to commit the crime, has undertaken overt acts
[with specific intent] toward fulfilling the crime that 'come
near enough to the accomplishment of the substantive offence to
be punishable.'" Commonwealth v. Bell, 455 Mass. 408, 412
(2009), quoting Commonwealth v. Peaslee, 177 Mass. 267, 271
(1901). In order for a defendant to be guilty of attempt, the
distance between his or her actions and the completed crime must
be "relatively short" and "narrow." Bell, supra at 415, quoting
Commonwealth v. Hamel, 52 Mass. App. Ct. 250, 258 (2001).
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 mistake in judgment. Bell, supra at 412-413,
quoting Peaslee, supra at 271. The second, and more complicated
category, occurs when a person is still in preparatory mode and
9
has not committed the last act necessary to achieve the crime.
Bell, supra at 413, quoting Peaslee, supra at 271-272. "That an
overt act although coupled with an intent to commit the crime
commonly is not punishable if further acts are contemplated as
needful, is expressed in the familiar rule that preparation is
not an attempt." Peaslee, supra at 272. However, certain
preparations may be enough to support a conviction of attempt.
"It is a question of degree. If the preparation comes very near
to the accomplishment of the act, the intent to complete it
renders the crime so probable that the act will be a [crime]
although there is still a locus penitentiae[1] in the need of a
further exertion of the will to complete the crime. . . . [T]he
degree of proximity . . . may vary with circumstances . . . ."
Id. Certain factors must be considered when determining whether
acts constitute mere preparations or are enough to establish the
crime of attempt. Bell, supra at 414. These factors include
the gravity of the crime, the uncertainty of the result, and the
seriousness of harm that is likely to result. Bell, supra at
414, citing Commonwealth v. Kennedy, 170 Mass. 18, 22 (1897).
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
1
Locus penitentiae is an opportunity for changing one's
mind or undoing what has been done. See Black's Law Dictionary
1083 (10th ed. 2004).
10
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-sleeve white or light-
colored shirt and running pants, during the midday hours in the
scorching July heat. He had disguised himself by donning a wig.
The black bag the defendant was holding, a bag that was similar
to the one used in the robbery three weeks prior, contained a
mustache and beard as well as a pellet gun. He was in close
proximity to the bank and it could be inferred from these facts
that he had the present intent to commit an armed robbery. The
only actions left for the defendant to do before actually
robbing the bank were to put on the beard and mustache, walk
into the bank and up to the counter and demand money. The
11
evidence supports findings that the defendant had the present
intention to rob the same bank he had robbed earlier that month,
that he made preparations to do so, and that he had taken steps
which put him in close proximity to completing the substantive
crime. He had undertaken overt acts which, although not the
final act in a necessary sequence, were so close to the
commission of the crime that a reasonable jury could conclude
that it was virtually certain that he would have robbed the bank
a second time had Grigoryants not recognized him and alerted
bank personnel who then summoned police. See Peaslee, 177 Mass.
at 271-272.
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 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
12
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 alleged 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 the surveillance video
recording from the garage were fruits of those statements, and
trial counsel should have moved to suppress them as well. It is
undisputed that the defendant's statements were made more than
six hours after his arrest and that they had been volunteered.
We turn to the question left open in Fortunato, 466 Mass. at
509: whether volunteered, unsolicited statements made six hours
after arrest and before presentment require suppression. We
conclude that they do not.
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
13
prong, he then must show that counsel's omission "has likely
deprived the defendant of an otherwise available, substantial
ground of defence." Id.
Rule 7 (a) (1) of the Massachusetts Rules of Criminal
Procedure, as appearing in 442 Mass. 1506 (2004), requires the
prompt presentment of an arrestee before a court. 2 The purpose
of the rule is to discourage unlawful detentions, unlawfully
obtained statements, and improper police pressure. Commonwealth
v. Powell, 468 Mass. 272, 276-277 (2014). The rule essentially
codified the existing case law. Rosario, supra at 51. Our case
law requires that an arrestee be brought before a judge as soon
as reasonably possible. Commonwealth v. Hodgkins, 401 Mass.
871, 876 (1988), and cases cited. Before Rosario, the
unreasonableness of a delay was determined on a case-by-case
basis in light of all the circumstances. Powell, supra at 277.
Commonwealth v. Perito, 417 Mass. 674, 680 (1994), and cases
cited. This case-by-case approach continued, without
suppression of any evidence by reason of undue delay in
presentment, until Rosario. Powell, supra at 278, citing
Rosario, 422 Mass. at 52.
In Rosario, this court announced a bright line rule
2
Rule 7 (a) (1) of the Massachusetts Rules of Criminal
Procedure, as appearing in 442 Mass. 1506 (2004), states: "A
defendant who has been arrested shall be brought before a court
if then in session, and if not, at its next session."
14
stating, "[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 of a natural disaster
or emergency. Powell, 468 Mass. at 276. Rosario, supra at 56-
57. The six-hour rule has several goals. First, it serves to
provide clarity and consistency to police officers, judges,
prosecutors, and defense counsel as to the "right of the police
to question" an arrestee as well as the "standard for
suppressing statements" made due to an unreasonable delay before
arraignment. See Commonwealth v. Morganti, 455 Mass. 388, 399
(2009), S.C., 467 Mass. 96, cert. denied, 135 S. Ct. 356 (2014),
quoting Rosario, supra at 53. Second, the rule is "intended to
facilitate a criminal defendant's right to counsel, to ensure
that a defendant receives a prompt statement by a judge or
magistrate of the charges against him, and to prevent unlawful
detention." Fortunato, 466 Mass. at 506. Third, it is a
"prophylaxis against dilatory police conduct," seeking to
prevent unlawful detentions and improper police pressure.
Commonwealth v. Siny Van Tran, 460 Mass. 535, 561 (2011). See
Powell, supra at 279 ("A bright-line rule . . . achieves the
15
goal of limiting the coercive effect of lengthy arraignment
delays"); Commonwealth v. Santana, 465 Mass. 270, 287 (2013).
"[T]he principal mischief that the Rosario rule was adopted to
prevent [was] the coercive influence of intentional delays of
arraignment to prolong custodial interrogation of unwilling and
uncounseled arrestees." Siny Van Tran, supra at 563.
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
16
defendants arrested outside of Massachusetts because the
"spirit" of Rosario was not violated. Morganti, 455 Mass. at
399-400 (interrogating officer flew from Massachusetts to
California). The "spirit" of Rosario is to prevent police
officers desirous of obtaining a confession from purposefully
delaying a defendant's arraignment. Morganti, supra. As in
Morganti, the spirit of Rosario was not violated in this case.
Crowley did not engage in conduct that could be characterized as
a subterfuge intended to thwart the spirit of Rosario.
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
17
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." Mass. R. Crim. P. 30 (c) (4), as appearing
in 435 Mass. 1501 (2001). Because we have determined that
volunteered, unsolicited statements made after the Rosario six-
hour rule has expired are admissible, the defendant has not
established a prima facie case for relief.
5. Ineffective assistance of counsel -- identification.
The defendant argues that the judge erred in denying his motion
for a new trial, which alleged 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 circumstances "especially suggestive," Commonwealth
v. Jones, 423 Mass. 99, 109 (1996), "so as to give rise to a
very substantial likelihood of a mistaken identification."
3
The defendant argues that trial counsel should have moved
to suppress the following identifications: (1) Kaltoum El
Hafidi's identification of the defendant based on the cellular
telephone photograph; (2) El Hafidi's identification of the
defendant sitting outside the bank on July 26, 2011; (3) El
Hafidi's identification given to Detective Jack Crowley; and (4)
El Hafidi's in-court identification of the defendant.
18
Commonwealth v. Moon, 380 Mass. 751, 758 (1980). He also argues
that her in-court identification was tainted by her suggestive
pretrial identifications.
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.
(2016). The "ultimate measure," id. at , in the analysis
always will be "reliability." Id. at . 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. at .
 19
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.
at .
The defendant first contends that El Hafidi's
identification of the defendant from the cellular telephone
photograph was highly suggestive because Grigoryants asked her
whether the photograph depicted the robber. 4 There is no
4
The defendant cites Commonwealth v. Day, 42 Mass. App. Ct.
242 (1997), to bolster his argument that Edward Grigoryants's
photograph was unnecessarily suggestive. In Day, two
eyewitnesses were waiting in a room at the police station,
alone, with a flyer that bore an image of the defendant's face
and said that the defendant had been in an altercation at a bar,
the same incident that occasioned the witnesses to go to the
police station. Id. at 244. The witnesses subsequently
identified the defendant's photograph from an array with six
photographs. Id. at 244, 249. The Appeals Court held that the
out-of-court identifications should have been suppressed. Id.
at 250. These identifications were far more suggestive than El
20
evidence that Grigoryants did anything to pressure El Hafidi to
confirm his suspicion. Witnesses often are shown an individual
at a showup who matches a description of a suspect.
Commonwealth v. Watson, 455 Mass. 246, 252-253 (2009), quoting
Commonwealth v. Phillips, 452 Mass. 617, 628 (2008). Showups
are disfavored because they are "inherently suggestive."
However, it is only when showups conducted by the police are
"unnecessarily suggestive" that the resulting identification
must be suppressed. Phillips, supra at 627, quoting
Commonwealth v. Martin, 447 Mass. 274, 279 (2006). El Hafidi's
identification of the photograph was made in circumstances
comparable to a permissible showup conducted by a police
officer. Had the showup been conducted by a police officer, it
would not have been deemed unnecessarily suggestive. If the
identification procedure was not "unnecessarily suggestive," see
Johnson, 473 Mass. at , had it been conducted by the police,
it could not have been "especially suggestive" because it was
conducted by a third party, as here. See id. at . Moreover,
there was "good reason" to do it in the circumstances. See
Martin, supra at 282-283. It was important to ascertain whether
the defendant was the robber from July 7 while he was just
outside the bank, so the police could be summoned if he were.
Hafidi's identifications, and we add that there was some, though
minimal, government involvement in Day.
21
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 defendant as the man in the photograph at that
time. Whatever suggestiveness Grigoryants may have imparted was
not so high that the danger of unfair prejudice outweighed the
probative value of her identification, where that identification
was substantially grounded in El Hafidi's experience with the
robber on July 7. It was not until she saw the defendant
walking and ultimately sitting outside the bank, and drawing
upon the observations of his gait, build, and race, which she
had made during the July 7 robbery, that she was sure that he
was the same man who robbed her on July 7.
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 . El Hafidi consistently had
described the defendant as the robber and even questioned the
22
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
23
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 (1995). In that case the witness was working at a
donut shop where she was robbed. Id. at 92. She telephoned the
police and gave a description of the man who had robbed her.
Id. at 92-93. About two weeks later, the same witness was
working at another branch of the donut shop and a coworker
called from the front of the store asking her to look at a
customer. Id. at 93. When the witness did so, she saw the
individual who she believed had robbed her two weeks before.
Id. She telephoned the police, and when they arrived, she
described the customer, who had left the store. Id. The police
apprehended the defendant at a nearby subway station and brought
him to the donut shop where the witness was working. Id. He
was positioned outside the shop, in handcuffs, next to a police
officer and a police vehicle. Id. The witness identified him
as the robber. Id. The court held that the identification was
not unnecessarily suggestive. Id. at 94-95. In the present
case, the police did not bring the defendant to El Hafidi. She
was inside the bank while the defendant was being arrested, and
when the police asked her if it was the same individual, she
said yes. This identification was not unnecessarily suggestive.
She had already identified the defendant based on her experience
24
of being robbed three weeks earlier and merely repeated her
identification to the police.
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.
5
We note that trial counsel was successful in requesting
eyewitness identification jury instructions that were more
favorable than the typical jury instructions given at the time.
See Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979)
(Appendix), S.C., 419 Mass. 1006 (1995) (setting forth model
jury instruction for eyewitness identification). The defendant
requested jury instructions from New Jersey. The New Jersey
model instructions on eyewitness identification were published
in July, 2012, one month before the trial in this case
commenced. See Commonwealth v. Gomes, 470 Mass. 352, 357 n.10
(2015). These instructions were drafted pursuant to the
landmark decision in State v. Henderson, 208 N.J. 208 (2011),
and they were pertinent to this court’s decision and proposed
model jury instruction in Gomes, supra. Subsequent to our
decision in that case, we approved and recommended the use of
the final Model Eyewitness Identification Instruction, which
replaced the provisional instruction in the appendix of Gomes,
supra at 379-388, and which is very similar to the model jury
25
Finally, the defendant has not shown that even if El
Hafidi's identifications should have been suppressed, there was
a reasonable possibility that the verdict would have been
different. See Commonwealth v. Pena, 31 Mass. App. Ct. 201, 205
(1991). There was other powerful evidence from which the jury
could have convicted the defendant, including videotapes and
photographs from the bank's surveillance camera and the parking
garage camera from July 7, which depicted the robbery and the
defendant, as well as the photograph that Grigoryants took with
his cellular telephone. There was testimony from witnesses to
the July 7 robbery who gave similar descriptions of the robber.
There was evidence of the similarities in the defendant's
actions, dress, transportation, and items on his person on both
July 7 and July 26.
6. Ineffective assistance of counsel -- right to testify.
The defendant argues that the judge erred in denying his motion
instruction in New Jersey. See Model Jury Instructions on
Eyewitness Identification, 473 Mass. 1051 (2015); New Jersey
Model Jury Instruction on Eyewitness Identification (rev. July
19, 2012), available at https://www.judiciary.state.nj.us/
pressrel/2012/jury_instruction.pdf [http://perma.cc/PYR6-9FWF].
The jury were instructed on the dangers of eyewitness
identification and factors to consider when deciding what weight
to give to identification testimony. The defendant, three years
before our decision in Gomes, had the benefit of jury
instructions that went well beyond the jury instructions typical
of the time. See Gomes, supra at 357 (stating provisional jury
instruction modeled after New Jersey model instruction "was
considerably longer and more detailed than the Rodriguez
instruction").
26
for a new trial because his trial counsel erroneously advised
him that if he testified at trial, five prior convictions,
including of two 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 inclined to admit the evidence because she believed
that the five prior convictions at issue were not time-barred
under G. L. c. 233, § 21. Defense counsel agreed with the trial
judge. The judge provisionally determined the prior convictions
were not time-barred but asked both attorneys to do more
research and stated that they would take up the issue the next
day. The next day, when the judge addressed the issue again,
the Commonwealth told the judge that it may be a "moot point"
and deferred to defense counsel. Defense counsel agreed,
explaining that he spoke with his client the night before and
that he did not expect his client to testify.
27
We begin by stating that the five prior convictions
pertinent to this case were all time-barred under G. L. c. 233,
§ 21. Because trial counsel agreed with the trial judge in her
misinterpretation of G. L. c. 233, § 21, the defendant argues
that he received ineffective assistance of counsel because he
relied on the misinterpretation in deciding whether to testify.
Although counsel misinterpreted G. L. c. 233, § 21, the
defendant has failed to prove by a preponderance of the evidence
"that, but for his counsel's erroneous advice concerning the
admissibility of his [prior convictions], he would have
testified in his own defense." Commonwealth v. Freeman, 29
Mass. App. Ct. 635, 642 (1990).
"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
28
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).
Based on the record, the defendant's credibility is called
into question. Before the motion in limine was discussed,
defense counsel told the judge that the defendant was most
likely not going to testify. This decision was made before the
provisional ruling to admit the prior convictions for
impeachment. When the issue was revisited the next morning,
defense counsel explained that the discussion was moot because
the defendant would not be testifying. The record suggests that
in deciding not to testify the defendant did not rely on trial
counsel's advice regarding prior convictions. Furthermore, it
is highly unlikely that the defendant would have testified
because doing so would have sacrificed his defense to the July 7
robbery in an effort to obtain a not guilty verdict on the July
26 attempted robbery charge. The defendant's affidavit said he
would have testified that he was planning to rob the bank on
29
July 26 but lost his nerve. If he had testified to this, it
would have damaged his case theory because admitting to the fact
that he intended to rob the bank on July 26 would have lead the
jury to believe that he was predisposed to robbing a bank. This
would have undermined his mistaken identity defense to the July
7 robbery. We conclude that the defendant has failed to show
that his decision not to testify was based on incorrect advice
from counsel.
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 Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass.
1501 (2001). When considering whether a motion for a new trial
warrants an evidentiary hearing, the judge must look to the
"seriousness of the issue itself and the adequacy of the
defendant's showing on that issue must be considered." Denis,
supra. See Stewart, supra at 257-258. In this case, the
30
defendant filed a motion for a new trial and submitted an
affidavit written by the defendant, police reports, a motion to
change counsel, and a motion in limine to exclude evidence of
the defendant's prior convictions. The motion and supporting
materials do not need to prove the issues raised; however, "they
must at least contain sufficient credible information to cast
doubt on the issue." Denis, supra at 629. The record does not
contain facts that would require an evidentiary hearing by the
judge. Where the motion judge was also the trial judge she "may
use [her] 'knowledge and evaluation of the evidence at trial in
determining whether to decide the motion for a new trial without
an evidentiary hearing.'" Commonwealth v. Riley, 467 Mass. 799,
826 (2014), quoting Commonwealth v. Wallis, 440 Mass. 589, 596
(2003). The motion judge properly determined that an
evidentiary hearing was not warranted.
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.