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Commonwealth v. McWilliams

Supreme Judicial Court of Massachusetts, Middlesex

February 12, 2016

Robert McWilliams

         Argued October 8, 2015.

          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

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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.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


          [45 N.E.3d 99] Spina, J.

          In 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.

         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

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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 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 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

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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 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 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

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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, 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, ...

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