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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.
