Commonwealth v. Wiggins

477 Mass. 732

81 N.E.3d 737

COMMONWEALTH

v.Maxwell WIGGINS, Jr.

(and twenty-eight companion cases

).

SJC–10975

Supreme Judicial Court of Massachusetts, Hampden..

Argued February 10, 2017

Decided September 6, 2017

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 P.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, 650 N.E.2d 1257 (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...