Commonwealth v. McWilliams (Lawyers Weekly No. 10-020-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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.     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 […]

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