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Commonwealth v. Wiggins

Supreme Judicial Court of Massachusetts, Hampden

September 6, 2017

COMMONWEALTH
v.
MAXWELL WIGGINS, JR. (and twenty-eight companion cases[1]).

          Heard: February 10, 2017.

         Indictments found and returned in the Superior Court Department on September 25, 2007.

         Pretrial motions to suppress evidence were heard by Cornelius J. Moriarty, J.; and the cases were tried before Peter A. Velis, J.

          Alan Jay Black for Maxwell Wiggins, Jr.

          Jeffrey L. Baler for Swinkels Laporte.

          Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Hines, Lowy, & Budd, JJ. [2]

          BUDD, J.

         On the evening of August 29, 2007, two armed and masked men entered a home in Springfield, assaulting and robbing its occupants at gunpoint. As they left, the homeowner, Tracy Bennett, who was returning home, was shot and killed. Swinkels Laporte and Maxwell Wiggins were identified as the assailants and, following a joint jury trial in the Superior Court, were found guilty of murder in the first degree, as well as other offenses related to the home invasion.

         On appeal, they primarily claim that witnesses were improperly allowed to identify them as the perpetrators during the trial. They also raise various evidentiary issues, and claim error in the prosecutor's closing argument. Wiggins further challenges the denial of his motions to sever and for a mistrial, based on co-counsel's cross-examination of a witness regarding a previously suppressed out-of-court identification. Laporte separately challenges his nonmurder sentences. Finally, both defendants seek relief pursuant to G. L. c. 278, § 33E.

         We discern no reversible error and, after a thorough review of the record, decline to reduce or set aside the verdicts under G. L. c. 278, § 33E. Accordingly, we affirm the defendants' convictions. However, we remand for resentencing Laporte's convictions of home invasion and armed robbery while masked.

         Background.

         We summarize the facts the jury could have found, reserving certain details for discussion of the issues.

         Tracy Bennett lived with her adult daughter, Susan; her eighteen year old son, Daniel; Susan's three young children; and a seventeen year old family friend, Angel Colon.[3] The defendants were friends of Daniel and visited him frequently at the Bennett home, where they would often see Susan, Tracy, and Colon as well. The defendants and Daniel usually spent their time in Daniel's room, where they played video games on Daniel's new Xbox video game console. In his room, Daniel kept a safe containing money and marijuana that he sold to friends; the defendants were aware of the safe and had seen its contents. A couple of weeks before the killing, Colon thought he overheard the defendants discussing wanting to take the Xbox.

         On the evening of August 29, 2007, Tracy had gone out; Colon and Susan were watching television in Susan's room, and Daniel was with his girl friend in his room. At approximately 10 P..M., two masked African-American men carrying guns entered the home. One was short and skinny; the other was tall and stocky.[4] They wore dark hooded sweatshirts, dark pants, and dark baseball caps. One of the sweatshirts had a zipper, and the other was a pullover, like sweatshirts Colon had seen Wiggins and Laporte wear on multiple occasions. The intruders also wore black bandanas over their noses and mouths. Colon, who looked down the hallway to see whether Tracy had come home, saw the two proceed toward him and thought that Daniel's friends, Wiggins and Laporte, were playing a joke. He quickly learned the intruders' intentions when the shorter one said, "Where's the fucking shit? We ain't playing. This ain't no joke, " and punched him in the face. Colon and Susan were forced to lie face down on the bed as the shorter assailant took items from the room, including Susan's cellular telephone, a piggy bank, and a small camcorder.

         Simultaneously, the taller intruder banged on Daniel's locked bedroom door and then forced the door open. He pointed a gun at Daniel's face and said, "Give me your shit. I know you've got it." The two struggled briefly, then the intruder hit Daniel in the head with the gun, and Daniel opened the safe. The intruder instructed Daniel to put cash, marijuana, the Xbox console, games, and digital video disc (DVD) movies into a large trash bag.

         As soon as Colon heard the two men leave the house, he telephoned 911. As he was on the telephone with the dispatcher, he, Daniel, and Susan heard a gunshot. They ran outside and found Tracy shot in the face and bleeding profusely.

         First responders arrived at the scene shortly after 10 P.M. to attend to Tracy and investigate the crime. Colon reported to an officer that "Swinkels and Max" committed the crimes and told him where each lived. At approximately 10:45 £.M., officers arrived at Laporte's home, where they found the defendants. A search of that home yielded items that appeared to have been stolen from the Bennett home, including an Xbox console and components, games, DVD movies, cash and coins, jewelry boxes, and a digital scale. The officers also collected other items, including ammunition, three black hooded sweatshirts, and other clothing.

         The State police crime laboratory performed forensic testing on the sweatshirts. The cuffs of one sweatshirt tested positive for gunshot residue (GSR) as well as occult blood. A second sweatshirt also tested positive for occult blood. Investigators also performed deoxyribonucleic acid (DNA) testing on swabs taken from the wear areas of the sweatshirts. DNA testing of samples from the sweatshirt with GSR did not produce any conclusive matches. However, the investigators found that the second sweatshirt contained a DNA profile matching that of Laporte and a third sweatshirt contained a DNA profile matching Wiggins.

         At trial, the defendants sought to convince the jury that any identification of the defendants as the intruders was a mistake. They argued that Daniel had only mentioned their names to the police when he was asked whether he had any African-American friends and that the police had inappropriately focused on them. Laporte in particular argued that, although the stolen property had been found at his home and his DNA profile matched a sample from one of the black sweatshirts also found there, the robbery could have been committed by his brother, which would also explain those facts. We discuss the defendants' arguments in more detail below.

         Discussion.

         1. In-court identification of the defendants.

         Although the defendants' theory was misidentification, this is not a case where the alleged perpetrators were unknown to the eyewitnesses. Daniel, Susan, and Colon had known the defendants for some time. The jury heard testimony that Wiggins and Daniel had been friends for a couple of years prior to the robbery and shooting, and Wiggins frequently visited Daniel. Daniel had known Laporte for approximately six months, during which time Laporte visited Daniel with Wiggins on multiple occasions. Both Susan and Colon saw the defendants when they visited Daniel. Colon, who had already known Laporte for several years, would sometimes play video games with Wiggins, Laporte, and Daniel in Daniel's room. However, despite the witnesses' familiarity with the defendants, compare, e.g., Commonwealth v. Johnson, 420 Mass. 458, 459-460 (1995) (armed robbers were unknown to defendant), the defense argued that because the intruders wore masks, the witnesses mistook them for the defendants.

         On the night of the break-in and shooting, each of the witnesses viewed each defendant separately in what was later determined to be an unnecessarily suggestive showup procedure.[5]As a result, the motion judge suppressed the out-of-court identifications that Colon and Susan had made during the showup and that Daniel had made afterwards at the police station. Nevertheless, the judge allowed all three to make in-court identifications of the defendants at trial: Colon identified both defendants as the intruders; Susan identified Laporte as one of the two intruders; and Daniel identified Wiggins as one of the intruders, although the identification was equivocal. The defendants assert that this was prejudicial error. We disagree.

         Colon testified that despite the masks, he recognized the intruders as Wiggins and Laporte as they walked toward him. He recognized the defendants by voice, clothes, build, and the way they walked. He told police at the scene who the assailants were and where they lived. Colon further pointed out Laporte as the intruder who punched him in the mouth during the home invasion. Although the defendants objected to Colon's in-court identifications, there was an independent source for that identification because Colon unequivocally identified the defendants as the perpetrators prior to the suggestive showup procedure.

         In court, Susan identified Laporte as the shorter intruder without objection. She testified that although he wore a mask, she recognized Laporte as he walked down the hall toward her by his walk, voice, size, and build. She testified that she told a police officer at the scene that she believed the person who robbed her was Laporte, but she could not recall who she spoke with (no officer confirmed her statement). Because Susan's testimony that she identified Laporte by name before the suggestive procedure would be admissible regardless of the admissibility of her in-court identification, we conclude that there is no substantial likelihood of a miscarriage of justice arising from defense counsel's failure to object to her in-court identification.

         As for Daniel, on direct examination by the Commonwealth, and without objection, Daniel identified Wiggins as the intruder who came into his room.[6] He testified further (without objection) that despite the hood and bandanna, he recognized Wiggins from Wiggins's build, skin tone, and voice, but he later stated that he could not be sure.[7] Although Daniel did not directly identify either of the defendants prior to the tainted showup, he effectively made at least an equivocal identification of Wiggins by his actions at the scene of the crime: Daniel testified that after the shooting he took his mother's keys, got into her vehicle, and planned to go to Wiggins's home to see whether Wiggins had been the intruder in his room. When Colon took the keys away, Daniel telephoned Wiggins's home and Wiggins's sister in an attempt to locate him. This evidence would allow a reasonable jury to conclude that, at a minimum, Daniel had made an equivocal identification of Wiggins as a perpetrator prior to the suggestive procedure. As a result, we conclude that there is no substantial likelihood of a miscarriage of justice arising from the failure by Wiggins's attorney to object to an in-court identification that, viewed in its totality, also was equivocal.

         2. Daniel's out-of-court identification.

         Wiggins asserts that there was error in admitting testimony of a police officer about Daniel's out-of-court identification of Wiggins because it had previously been suppressed. Wiggins also argues that the trial judge erred in denying his motions to sever and for a mistrial based on co-counsel's cross-examination of Daniel that led to the police officer's testimony. We conclude that there was no abuse of discretion in denying Wiggins' motions. Further, we conclude that there was no substantial likelihood of a miscarriage of justice in admitting evidence of Daniel's out-of-court identification.

         The out-of-court identification, made during police questioning following a showup procedure on the night of the murder, was suppressed because the showup was found to be unnecessarily suggestive. See note 5, supra. During cross-examination by Laporte's counsel, Daniel was questioned about his ability to see the perpetrator given the lighting and the mask, as well as his failure to identify Wiggins to the police as one of the perpetrators until much later in the night, when police informed him that his mother had died. This included multiple questions pertaining to the previously suppressed out-of-court identification by Daniel of Wiggins.[8] Wiggins did not object to this questioning at the time. Wiggins also did not object when the prosecutor, in turn, asked Daniel about his out-of-court identification of Wiggins during redirect examination. However, both defendants later objected to the prosecutor's questioning of the detective who had taken Daniel's statement, which included Daniel's identification of Wiggins. The defendants also moved for a mistrial. The judge denied the motion but ordered the prosecutor not to inquire "in the slightest fashion, regarding anything that [the motion judge] suppressed."

         The next morning, the prosecutor asked the judge to allow her to question the detective about the identification of Wiggins, arguing that Laporte had "open[ed] the door" and Wiggins had failed to object. In response, Wiggins moved to sever and for a mistrial. The judge denied both motions. In addition, after reviewing the transcripts, the judge ruled that Wiggins had waived his right to enforce the suppression ruling, at least as to whether Daniel had identified Wiggins at the police station. The judge allowed the prosecutor to elicit the same testimony as Laporte's counsel, i.e., that after Daniel heard that his mother had died, he identified Wiggins as the robber.[9]

         Laporte waived any objection to the admission of Daniel's out-of-court identification based on his counsel's cross-examination of Daniel on this topic; thus, had the defendants been tried separately, Laporte would have "opened the door, " allowing the Commonwealth to respond. See Commonwealth v. Alcantara, 471 Mass. 550, 557 n.6 (2015), citing Commonwealth v. Williams, 379 Mass. 600, 604-605 (1980) (where defendant waives issue by using challenged statements, he "open[s] the door to their use by the Commonwealth"). Accord PettiJohn v. Hall, 599 F.2d 476, 481 (1st Cir.), cert, denied, 444 U.S. 946 (1979) ("Once a defendant attempts to introduce testimony that is intimately interrelated with previously suppressed testimony, the defendant waives his objections to the introduction of that related evidence"). Wiggins contends, however, that Laporte's counsel's actions could not waive Wiggins's rights, for due process reasons. We agree. Cf. Commonwealth v. Collado, 426 Mass. 675, 676 (1998) (defendant's waiver of right to jury trial did not affect codefendant's right). Accord United States v. White, 887 F.2d 267, 269-270 (D.C. Cir. 1989).

         However, although Laporte could not waive Wiggins's rights, Wiggins failed to object to his codefendant's cross-examination of Daniel, to the prosecutor's redirect examination, or to Daniel's in-court identification of Wiggins. As a result, where admission of any of the related identifications would have been error, we consider how those errors could have combined to cause a substantial likelihood of a miscarriage of justice in the context of the evidence adduced at trial.[10] See Commonwealth v. DePina, 476 Mass. 614, 623 (2017). Based on Daniel's in-court identification of Wiggins as one of the perpetrators, Daniel's actions to check Wiggins's whereabouts following the killing, and the fact that Colon named Wiggins to police officers at the scene of the crime, the jury had a reasonable basis to conclude that Wiggins had participated in the robbery. In this context, Laporte's line of questioning did not cause a substantial likelihood of a miscarriage of justice. We reach the same conclusion as to the Commonwealth's examination of the police detective on this issue, as the prosecutor was not permitted to inquire beyond the testimony that had already been elicited by Laporte.[11] Compare note 8 with note 9, supra.

         Further, in the circumstances, we conclude that the trial judge did not abuse his discretion in denying Wiggins's renewed motion for a mistrial and his motion to sever. See Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990) (mistrial is subject to judge's discretion); Commonwealth v. Jackson, 391 Mass. 749, 759 (1984), quoting Commonwealth v. DiPietro, 373 Mass. 369, 387 (1977) (ground for mistrial "must be called to the attention of the judge immediately, or when the aggrieved party first learns of it"); Commonwealth v. Moran, 387 Mass. 644, 658 (1982) (abuse of ...


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