Supreme Judicial Court of Massachusetts, Middlesex
October 8, 2015.
Indictments found and returned in the Superior Court
Department on October 25, 2011.
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.
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
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
N.E.3d 99] Spina, J.
this case, we address the question left open in
Commonwealth v. Fortunato, 466 Mass. 500, 509, 996
N.E.2d 457 (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, 661 N.E.2d 71 (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.
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.
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.
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-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 [45 N.E.3d
100] wearing a white top and pants with a white stripe on
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.
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
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.
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-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 [45 N.E.3d 101] said that she was "
positively certain" that it was the person who had
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
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
Motion for a required finding of not guilty -- attempted
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.
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, 393 N.E.2d 370 (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, ...