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SJC-11878

COMMONWEALTH vs. SANTIAGO NAVARRO.

Essex. October 5, 2015. - May 5, 2016.

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

Hines, JJ.

Identification. Practice, Criminal, Instructions to jury, 

Assistance of counsel. Constitutional Law, Assistance of 

counsel.

Indictments found and returned in the Superior Court 

Department on July 2, 2010.

The cases were tried before Douglas H. Wilkins, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Elizabeth A. Billowitz for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the 

Commonwealth.

Karen A. Newirth, Kevin Puvalowski, Shin Hahn, & Jean 

Ripley, of New York, & Matthew Nickell, for The Innocence 

Network & another, amici curiae, submitted a brief.

HINES, J. In January, 2012, a Superior Court jury 

convicted the defendant, Santiago Navarro, on thirty 
2

indictments, ten each charging armed robbery while masked, in 

violation of G. L. c. 265, § 17; home invasion, in violation of

G. L. c. 265, § 18C; and kidnapping, in violation of G. L. 

c. 265, § 26. The indictments stemmed from an incident during 

which the defendant and an accomplice invaded a home in North 

Andover and robbed the players in a high stakes poker game. The 

defendant appealed, asserting various claims of error. The 

Appeals Court affirmed the convictions. Commonwealth v. 

Navarro, 86 Mass. App. Ct. 780 (2014). We granted the 

defendant's application for further appellate review to consider 

the sole issue of the propriety of the judge's eyewitness 

identification instructions. More specifically, we decide 

whether the judge's failure to instruct the jury in accordance 

with Commonwealth v. Rodriguez, 378 Mass. 296 (1979)

(Rodriguez), S.C., 419 Mass. 1006 (1995), may be reviewed under 

the prejudicial error standard where the defendant neither 

requested the instruction nor objected to its omission.1 For the 

 

1 The defendant frames the issue as judicial error, arguing 

that the judge was required to provide an instruction pursuant 

to Commonwealth v. Rodriguez, 378 Mass. 296 (1979), S.C., 419 

Mass. 1006 (1995), sua sponte. We regard this as a strategic 

gambit that the defendant appears to believe would call for

review under the more favorable "prejudicial error" standard 

rather than the substantial risk of a miscarriage of justice 

standard applicable to the defendant's alternative ineffective 

assistance of counsel claim. The gambit fails, however, because 

even if we were to conclude that the judge was required to give 

such an instruction sua sponte, the issue was not preserved and

we would still determine whether the omission created a 
3

reasons set forth below, we conclude that in the absence of a 

request, the defendant may not attribute the omission of a

Rodriguez eyewitness identification instruction to judicial 

error and, as a consequence, he is not entitled to review on 

that ground. Instead, we review the issue under the rubric of 

the defendant's alternative claim that counsel's failure to 

request a Rodriguez instruction was constitutionally 

ineffective. We agree that counsel's performance in this 

respect fell "measurably below that which might be expected from 

an ordinary fallible lawyer," Commonwealth v. Saferian, 366

Mass. 89, 96 (1974), but we conclude that the lapse was not so 

prejudicial as to result in a substantial risk of a miscarriage 

of justice.

Background. From the evidence admitted at trial, the jury 

could have found the following facts. On June 13, 2010, two 

roommates hosted a high stakes poker game at their apartment in 

North Andover. The apartment was on the second floor of a twofamily home. The poker room was in the rear of the apartment

and was accessible by a rear door. The poker game was a regular 

event that attracted eight to ten friends on average. Each card 

player entered the game with one hundred dollars or more, with 

 

substantial risk of a miscarriage of justice. See Commonwealth

v. Alphas, 430 Mass. 8, 13 (1999).
4

the option to reenter the game with more cash if he lost his 

initial stake.

On the night in question, the poker game started sometime 

after 9 P.M. with a small group that, around 10:30 P.M., had 

grown to eleven card players. Among this group was Christopher 

Maldonado, known as "Shorty." After losing his money, Maldonado

stayed in the apartment, where the victims observed him sending 

text messages on his cellular telephone. Sometime after 

Maldonado was out of the game, two masked men entered the 

apartment. One of the men was armed with a gun and demanded the 

card players to empty their pockets and place their cellular 

telephones on the table. After collecting the items, the 

assailants bound the victims' hands. Initially, Maldonado

pretended to be a victim and, as with the others, the robbers 

bound his hands and demanded his cash. Later as events 

progressed, Maldonado announced that he "set [the robbery] up"

and that he was "hungry [for money]." Maldonado then assisted in 

collecting the victims' property and escaped with the robbers. 

After the robbers escaped, two of the victims freed themselves 

and, from a window in the apartment, observed the robbers 

getting into a dark blue Mitsubishi Galant automobile bearing 

Massachusetts license plate number 777-MF or 7777-MF. The 

victims got into a vehicle and pursued the robbers until they

reached an entrance to Route 495. At that point, they abandoned
5

the chase and returned to the apartment, where they were met by 

Detective Daniel G. Cronin of the North Andover police 

department. Detective Cronin commenced his investigation based 

on the victims' descriptions of the suspects and the getaway 

vehicle.

The defendant came to Detective Cronin's attention as a 

suspect the day after the robbery when he and a woman appeared 

at the North Andover police station in a vehicle fitting the 

description of the vehicle that the victims had observed leaving 

the scene of the crime. The defendant identified himself to 

Detective Cronin as Santiago Navarro, and the woman produced a 

driver's license identifying herself as Milagros Fernandez. The 

defendant told Detective Cronin that Fernandez, "his girl," had 

a question about her vehicle.2 Detective Cronin spoke to them 

and observed them as they entered the vehicle and drove away.

Four days after the robbery, Detective Cronin prepared and 

showed an array containing the defendant's photograph to some of 

the victims. Of the six victims who viewed the array, only two 

identified the defendant as one of the masked perpetrators, 

specifying that he was the assailant with the gun.

 

2 The judge excluded Milagros Fernandez's statement that she 

had come to the police in response to news reports that her 

automobile, the Galant, had been used as the getaway vehicle in 

the robbery.
6

Nine days after the robbery, the police arrested Maldonado,

who immediately began cooperating in exchange for concessions in 

a plea agreement. Maldonado testified at trial that he and the 

defendant, who was known to him as "Raw," discussed a plan to 

rob the victims. About one week before the robbery, Maldonado

and the defendant drove to the victim's apartment in a blue 

Mitsubishi Galant (described by Maldonado as having a license 

plate with "a few 7's, M-F") and conducted their surveillance of 

the area. Maldonado and the defendant agreed on a plan for the 

defendant to enter the apartment during the game and commit the 

robbery. According to the plan, Maldonado would send text messages 

to the defendant to indicate when all of the players would be in 

one room and the defendant would then enter the apartment. The 

robbery occurred as planned, and Maldonado fled the scene with the 

defendant in the same Galant used to conduct their surveillance a 

week earlier.

To corroborate Maldonado's testimony regarding his contacts 

with the defendant on the evening of the robbery, the prosecutor 

introduced Fernandez's cellular telephone records. Those records 

established thirty to forty calls and text messages between 

Maldonado and the defendant beginning on the day of the robbery and 

ending in the early morning hours of the day after the robbery. At 

least twenty-five of those contacts occurred between the late 

evening on the day of the robbery and the early morning hours of 
7

\

the next day. Maldonado testified that the defendant used the 

telephone number associated with Fernandez's telephone and that he 

was corresponding with the defendant during those contacts.

Maldonado acknowledged that he expected to receive a reduced 

sentence for his role in the robbery in exchange for truthful 

testimony about the crime. Defense counsel vigorously crossexamined him about his agreement with the Commonwealth and argued 

to the jury that Maldonado was not credible because his testimony 

was entirely self-serving.

Discussion. 1. Necessity of a request for Rodriguez

eyewitness identification instructions. The defendant argues 

that the judge was required, sua sponte, to charge the jury in 

accordance with Rodriguez and that the failure to do so was 

error.3 The argument lacks merit because the law as it existed 

 

3 We note that this case was tried before our most recent 

eyewitness identification cases, which altered our jurisprudence 

so as to give effect to certain generally accepted scientific 

advances in the understanding of the reliability of eyewitness 

identification. See Commonwealth v. Bastaldo, 472 Mass. 16, 23-

30 (2015) (holding that instructions on cross-racial 

identification required prospectively unless parties agree there 

was no cross-racial identification); Commonwealth v. Gomes, 470

Mass. 352, 361-378 (2015) (augmenting and supplementing 

Rodriguez to include five specific principles shown to be 

generally accepted in relevant scientific community); 

Commonwealth v. Collins, 470 Mass. 255, 259-267 (2014)

(precluding in-court identification where witness made less than 

positive pretrial identification, except on showing of "good 

reason"); Commonwealth v. Crayton, 470 Mass. 228, 238-244 (2014)

(precluding in-court identification where witness made no 

pretrial identification, except on showing of "good reason").
8

at the time of the trial did not require a sua sponte Rodriguez

eyewitness identification instruction.

4

As a threshold matter, we note that despite basing his 

appeal in substantial part on the contention that a defendant is 

entitled as a matter of right to a sua sponte Rodriguez

instruction, the defendant has failed to direct us to a single 

case explicitly compelling, or even marginally supporting, this 

position. Instead, he points only to the observation in 

Commonwealth v. Williams, 54 Mass. App. Ct. 236, 240 (2002), 

that a Rodriguez instruction is proper "whenever identification 

is an issue raised by the evidence." This statement, of course,

affirms a basic principle of our eyewitness identification 

jurisprudence. It does not, however, stand for the proposition 

that counsel is relieved of the burden to request an eyewitness 

identification instruction when it is appropriate to do so.

In Rodriguez, the seminal case in our law on eyewitness 

identification instructions, we linked entitlement to the 

 

4 The defendant also claims that omission of the Rodriguez

instruction violated his constitutional right to a fair trial. 

However, he presents this claim in summary fashion only, 

omitting any reference to the constitutional provisions 

underlying this claim and making no attempt to explain how the 

application of these provisions compels the result he seeks. 

Because we deem the argument insufficient to meet the 

requirements of Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 

921 (1975), we decline to consider whether the omission of an 

eyewitness instruction in accordance with Rodriguez is a 

violation of the defendant's constitutional right to a fair 

trial.
9

instruction to a specific request from the defendant. The 

necessity of a request is implicit in our statement that "a 

defendant who fairly raises the issue of mistaken identification 

might well be entitled to instructions" alerting the jury to the 

risk of misidentification and suggesting factors that might 

mitigate that risk in evaluating eyewitness identification 

testimony (emphasis added). Rodriguez, 378 Mass. at 302. The 

myriad post-Rodriguez cases,

5 reflecting the state of the law at 

the time of the trial in this case, have reiterated that counsel 

should request a Rodriguez instruction when eyewitness 

identification is a live issue in the case. More recently in 

Commonwealth v. Franklin, 465 Mass. 895, 912 (2013), we 

underscored the point, noting that "where requested by the 

defendant, . . . a judge should provide specific guidance to the 

jury regarding evaluation of such eyewitness testimony"

(emphasis added). This court's reference in Franklin to "where 

requested" follows the path charted by Rodriguez and its progeny 

 

5 See, e.g., Commonwealth v. Watson, 455 Mass. 246, 259-260

(2009) (judge's eyewitness instructions in accordance with 

Rodriguez and Commonwealth v. Pressley, 390 Mass. 617, 619 

[1983], given at defendant's request, sufficient without 

"cautionary" instructions); Commonwealth v. Pires, 453 Mass. 66, 

72 (2009) ("when the evidence so warrants and when a defendant 

requests the instruction," no harm in giving "honest but 

mistaken" language from Pressley with Rodriguez instruction).
10

in presuming the necessity of a request by the defendant.6

Therefore, we reject the defendant's contention that at the time 

of the trial in this case a sua sponte Rodriguez instruction was 

required and that the failure to provide it sua sponte was 

error.

We address briefly the defendant's reliance on the Supreme 

Judicial Court Study Group on Eyewitness Evidence: Report and 

Recommendations to the Justices (July 25, 2013), available at 

http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidencereport-2013.pdf [http://perma.cc/WY4M-YNZN] (Study Group 

Report), to support the argument that at the time of the trial 

in this case the judge was obliged to instruct the jury sua 

sponte in accordance with Rodriguez. This reliance is 

misplaced. The Study Group Report is the product of this 

court's charge to the study group to offer guidance as to how 

 

6 Because the issue in this appeal involves the law at the 

time of the trial, we caution against any implication that a 

judge should not give an eyewitness identification instruction 

unless the defendant requests it. Before the adoption of the 

Model Jury Instructions on Eyewitness Identification, 473 Mass. 

1051 (2015), ambiguity may well have clouded the boundaries of 

the judge's discretion to provide eyewitness identification 

instructions. The newly adopted model instructions seek 

prospectively to resolve that ambiguity by stressing the 

necessity of appropriate instructions tailored to the particular 

identification issues in the case. See id. at 1053 n.1 ("This

instruction should be given in any case in which the jury heard 

eyewitness evidence that positively identified the defendant and 

in which the identification of the defendant as the person who 

committed or participated in the alleged crime[s] is 

contested").
11

our courts can most effectively "deter unnecessarily suggestive 

[identification] procedures and whether existing model jury 

instructions provide adequate guidance to juries in evaluating 

eyewitness testimony." Commonwealth v. Walker, 460 Mass. 590, 

604 n.16 (2011). Consistent with this charge, the Study Group 

Report marshals the current science underlying the reliability 

of eyewitness identifications, offers a blueprint for changes in 

our eyewitness identification jurisprudence, and documents with 

some urgency the need for specific reforms to mitigate the 

possibility of wrongful convictions based on mistaken 

identifications. It does not purport to be, nor is it, an 

authoritative statement of the law governing a judge's 

obligation to provide a Rodriguez instruction in the absence of 

a request by the defendant. Thus, we reject the defendant's 

suggestion that the Study Group Report should inform our review 

of the judge's instructions in this case.

2. Ineffective assistance of counsel. In view of our 

determination that the judge's failure to provide a Rodriguez

instruction sua sponte was not error, we consider the 

defendant's alternative argument that, in failing to request a 

Rodriguez instruction, counsel rendered constitutionally 

ineffective assistance to the defendant. "[W]hen [a] claim of 

ineffective assistance of counsel is predicated . . . on 
12

counsel's failure to object to something that occurred at trial, 

the standard for evaluating the ineffectiveness claim is not 

significantly different from the substantial risk standard that 

is applicable to our review of the underlying, unpreserved 

error." Commonwealth v. Azar, 435 Mass. 675, 686 (2002). A 

substantial risk of a miscarriage of justice exists if "we have 

a serious doubt whether the result of the trial might have been 

different" if the Rodriguez instruction had not been omitted. 

Id. at 687, quoting Commonwealth v. LeFave, 430 Mass. 169, 174 

(1999). "We review the evidence and the case as a whole. We 

consider the strength of the Commonwealth's case, the nature of 

the error, the significance of the error in the context of the 

trial, and the possibility that the absence of an objection was 

the result of a reasonable tactical decision."7 Azar, supra.

At the charge conference, the judge solicited proposed 

instructions from counsel. The defendant's counsel did not 

request a Rodriguez instruction. The judge, however, instructed 

the jury generally on the issue, highlighting the importance of 

the eyewitness identifications in the case and the 

 

7 Although "our courts strongly disfavor raising claims of 

ineffective assistance on direct appeal," we may resolve the 

defendant's claim because it fits within the narrow exception to 

the rule requiring such claims to be raised in a motion for a 

new trial where the "factual basis of the claim appears 

indisputably on the trial record." Commonwealth v. Zinser, 446 

Mass. 807, 811 (2006), quoting Commonwealth v. Adamides, 37 

Mass. App. Ct. 339, 344 (1994).
13

Commonwealth's burden to prove beyond a reasonable doubt the 

identity of the perpetrators. In the only specific reference to 

the eyewitness identification issue, the judge instructed the 

jury on the possibility of an honest but mistaken identification 

in accordance with Commonwealth v. Pressley, 390 Mass. 617, 619-

620 (1983). At the end of the judge's charge, defense counsel 

offered no objection to the omission of the Rodriguez

instruction.

The need for a Rodriguez instruction in the circumstances 

of this case, however, was apparent. Because the robbers were 

masked and otherwise unknown to the victims, the identification 

of the defendant was highly vulnerable to attack on grounds that 

would have been highlighted in a Rodriguez instruction. For 

example, one victim identified the defendant at trial but 

acknowledged that he was able to do so by "his eyes" only 

because no other part of the defendant's face was visible during 

the robbery. A Rodriguez instruction would have highlighted for 

the jury the importance of "the capacity and an adequate 

opportunity to observe" the perpetrator. Rodriguez, 378 Mass. 

at 310 (Appendix). Thus, it is inconceivable that, in the 

circumstances of this case involving unknown masked 

perpetrators, counsel's failure to request a Rodriguez

instruction could be justified on strategic grounds. In our 
14

view, therefore, the failure to request a Rodriguez instruction

was conduct that fell "measurably below that which might be 

expected from an ordinary fallible lawyer." Saferian, 366 Mass. 

at 96. We turn now to a determination whether counsel's error 

"has likely deprived the defendant of an otherwise available, 

substantial ground of defence," id. at 96, where we effectively 

determine whether the error resulted in a substantial risk of a 

miscarriage of justice. Azar, 435 Mass. at 686. In assessing 

the prejudicial effect of the Rodriguez omissions from the 

charge, we evaluate the impact of the claimed error in the 

context of the entire charge. See Commonwealth v. Nadworny, 396 

Mass. 342, 360 (1985), cert. denied, 477 U.S. 904 (1986).

3. Prejudicial effect of the Rodriguez omissions. 

Although we reject certain of the defendant's claims regarding 

the prejudicial effect of the Rodriguez omissions, we are 

persuaded that, considered in their totality, the instructions 

given were inadequate to assist the jury in assessing the 

reliability and accuracy of the victims' eyewitness 

identifications. In relevant part, the judge instructed the 

jury as follows:

"Now, one of the most important issues in this case is 

the identification of the defendant as the alleged 

perpetrator of the crime. Now, in addition in deciding 

whether or not to believe a witness who identifies the 

defendant as the perpetrator, remember that you must 

consider not only whether the witness is trying to tell the 
15

truth or is lying, you must also consider whether that 

witness's testimony is accurate or instead is an honest 

mistake. Sometimes people perceive an event erroneously or 

forget things or become confused.

"In deciding whether a witness is trying to be 

truthful is only the first step. You must then go on to 

decide whether the witness's testimony on this issue is 

accurate in fact.

"Now, I once again emphasize that the burden of proof 

that's on the prosecutor extends to every element of the 

crimes charged, and this specifically includes the burden 

of proving beyond a reasonable doubt the identity of the 

defendant as the perpetrator of the crimes for which he 

stands charged.

"If, after examining the testimony, you have a 

reasonable doubt as to the accuracy of the identification, 

you must find the defendant not guilty. In deciding 

whether or not to believe a witness who identifies the 

defendant as the perpetrator, remember that you must not 

only consider whether the witness is trying to tell you the 

truth or is lying, you must also decide whether that 

witness's identification is accurate or instead may well 

have been an honest good-faith identification that 

nonetheless may have been mistaken."

As given, the judge's instructions appropriately focused on the 

risk of an honest but mistaken eyewitness identification where, 

as here, the perpetrators were masked and unknown to the 

victims. The judge's strong caution as to this risk, together 

with his reiteration of the prosecutor's burden to prove 

identification beyond a reasonable doubt, provided some of the 

information necessary to assist the jury in deciding the 

credibility of the eyewitness identifications. "Although the 

charge touched on the thrust of Rodriguez by instructing the 
16

jury to consider the possibility of an honest mistake, [the 

instructions] did not equip the jury with the proper tools to 

help them recognize the circumstances that might lead a witness 

to make such a mistake." Commonwealth v. Monteiro, 51 Mass. 

App. Ct. 552, 562 (2001).

The defendant characterizes the judge's charge as a 

"complete failure" to provide guidance to the jury on the 

evaluation of the eyewitness identification evidence presented 

at trial, and argues that the particular omissions from the 

Rodriguez instruction constitute reversible error. More 

specifically, he claims prejudice from the omission of the 

following Rodriguez factors: (i) capacity and opportunity of 

the eyewitnesses to observe the perpetrators; (ii) failed or 

inconclusive identifications; (iii) influence or suggestiveness 

in the identifications; and (iv) length of time between the 

event and the identifications. We consider each of the 

Rodriguez omissions as a factor in the determination whether 

counsel's lapse resulted in a substantial risk of a miscarriage 

of justice.

a. The Rodriguez factor relating to a witness's capacity 

and opportunity to observe was essential in this case, where the 

robbery was perpetrated by three individuals, two of whom were 

masked and unknown to the victims, and the defendant was 

identified as one of the masked robbers. Here, the judge 
17

instructed the jury generally on the importance of a witness's 

"opportunity or lack of opportunity" to observe and an 

eyewitness's "ability" to understand, to recall, and to 

accurately describe what he or she observed during the event. 

This instruction, however, was an inadequate substitute8 for what 

the jury should have been told in accordance with Rodriguez.

9 As 

is plain, the Rodriguez language apprises the jury in a more 

detailed fashion of the factors that bear on their assessment of 

the opportunity and ability to observe the perpetrator. In 

addition, it is important for the jury's consideration of the 

 

8 This portion of the judge's instruction provided as 

follows:

"Did the witness appear to know what the witness was 

talking about, what was the opportunity or lack of 

opportunity that the witness had to see and learn the facts 

about which he or she was testifying?

"What was the ability of the witness to understand, to 

recall and to accurately describe those things that a 

witness was testifying to?"

9 The portion of the Rodriguez instruction on this point 

provides as follows:

"Are you convinced that the witness had the capacity 

and an adequate opportunity to observe the offender?

"Whether the witness had an adequate opportunity to 

observe the offender at the time of the offense will be 

affected by such matters as how long or short a time was 

available, how far or close the witness was, how good were 

lighting conditions, and whether the witness had had 

occasion to see or know the person in the past."

Rodriguez, 378 Mass. at 310 (Appendix).
18

accuracy and reliability of the identification to hear that

instruction in the context of other factors bearing on that 

issue. We are persuaded on the basis of this omission alone 

that the eyewitness instructions to the jury were inadequate.

b. The defendant argues that the lack of the Rodriguez

instruction on the effect of failed or inconclusive 

identifications10 was inadequate where some of the witnesses in 

this case were unable to make any identification from the 

photographic array, and those who did make an identification 

were inconsistent in their level of certainty. It is doubtful 

that the omission of this Rodriguez factor was problematic on 

either ground.

None of the witnesses who were unable to identify the 

defendant from the photographic arrays made an in-court 

identification at trial. As to these witnesses at least, there 

was no necessity for a Rodriguez instruction. See Commonwealth

v. Johnson, 470 Mass. 389, 390 (2015) (declining to find abuse 

of discretion in judge's denial of request for eyewitness 

identification instruction where there was no positive 

eyewitness identification and "no other eyewitness testimony 

that significantly incriminated the defendant"). Two of the 

 

10 "You may take into account any occasions in which the 

witness failed to make an identification of defendant, or made 

an identification that was inconsistent with [the]

identification at trial." Rodriguez, 378 Mass. at 311.
19

victims made what they described as positive identifications but 

neither failed to make an identification of the defendant when 

presented with the opportunity to do so.

The defendant's claim that the eyewitnesses contradicted 

their level of certainty does not, in any event, require an 

instruction on this factor. Both eyewitnesses testified to 

being one hundred per cent certain of their identifications. 

Although neither wavered from his claim to be one hundred per 

cent certain of their identifications, Detective Cronin 

testified that they expressed less than one hundred per cent 

certainty, an eight on the scale of one to ten. Even assuming a 

contradiction in the witnesses' level of certainty, this 

instruction is not intended to address that issue directly. 

Rather, it relates primarily to the situation where a witness 

has failed to make an identification or identified a person 

other than the defendant. See Commonwealth v. Bol Choeurn, 446 

Mass. 510, 518 (2006) (inconsistent identification portion of 

Rodriguez instruction properly given to jury on factors 

considered where witness identified photograph of someone other 

than defendant). Where neither scenario occurred here, this 

instruction would not necessarily have been helpful or required 

to assist the jury in assessing the eyewitness identifications. 

In these circumstances, the judge properly could have exercised 
20

the discretion to omit this factor, and no prejudice resulted 

from its omission.

c. Next, the defendant contends that the jury should have 

been apprised of the Rodriguez factor relating to the possible 

role of influence or suggestion in the identifications.11 More 

specifically, he argues that the jury should have been 

instructed that the identification procedures used by Detective 

Cronin did not comport with the protocol suggested in 

Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009).

He points out that there was no double-blind array; the 

photographs were shown to the victims simultaneously rather than 

sequentially; and the procedure was not recorded or otherwise 

documented.

As a threshold matter, it does not appear that the 

defendant ever requested an instruction regarding the failure to 

comply with the Silva-Santiago protocol. Also, the defendant 

incorrectly posits that the suggested Silva-Santiago protocol 

 

11 Rodriguez, 378 Mass. at 311 (Appendix), instructs that a 

jury may consider the following circumstances:

"If the identification by the witness may have been 

influenced by the circumstances under which the defendant 

was presented to him for identification, you should 

scrutinize the identification with great care. You may 

also consider the length of time that lapsed between the 

occurrence of the crime and the next opportunity of the 

witness to see the defendant, as a factor bearing on the 

reliability of the identification."
21

includes a double-blind procedure, a sequential array, and a 

recording of the procedure. Although we noted the efficacy of 

these procedures in minimizing the risks of misidentification,

12

the protocol relates only to the content of the police officer's 

dialogue with the identifying witness. Furthermore, we 

pointedly declined to require a double-blind procedure where it 

might not be practicable, or either a sequential array or 

recording. Id. at 797-798.

d. As to the instruction on the length of time between the 

robbery and the identification,13 we agree that the lapse of time 

is a factor that may impair the reliability of an identification

and that the four-day delay in this case is a factor that the 

jury should have considered. While appropriate, the omission of 

this factor did not seriously compromise the adequacy of the 

judge's charge or otherwise result in prejudice to the 

defendant.

 

12 In Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798

(2009), we declined, based on concerns of practicality, to 

require a double-blind procedure. At the same time, we noted 

that "it is the better practice because it eliminates the risk 

of conscious or unconscious suggestion." Id. at 797.

13 In Commonwealth v. Cuffie, 414 Mass. 632, 641 (1993)

(Appendix), we revised the Rodriguez language on this point as 

follows: "You may also consider the length of time that lapsed 

between the occurrence of the crime and the opportunity of the 

witness, some time after the occurrence of the crime, to see and 

identify the defendant as the offender, as a factor bearing on 

the reliability of the identification."
22

Although we conclude that the Rodriguez instructions should 

have been given, especially in the circumstances of this case 

where the sole issue was the identity of a masked perpetrator, 

we are not persuaded that the defendant has met his burden to 

show that the result of the trial would have been different if 

those instructions had not been omitted. First, we reject out 

of hand the defendant's contention that the evidence was "less 

than overwhelming." To the contrary, the evidence of the 

defendant's identity as one of the perpetrators was strong. See 

Commonwealth v. Amirault, 424 Mass. 618, 650 (1997) ("Where 

evidence of guilt is strong and one-sided, it is generally 

concluded that no substantial risk . . . of a miscarriage of 

justice" occurred [citation omitted]). While it may be 

reasonable to discount the victims' identifications because the 

robbers were masked, the defendant's identity as a perpetrator 

of the crime did not rest solely, or even largely, on those 

identifications. The most potent evidence of the defendant's 

identity as the perpetrator came from Maldonado, his coventurer 

in the crimes. Maldonado admitted his role as an accomplice and 

testified that he and the defendant planned and executed the 

robbery and shared the proceeds.

We have taken due notice of the defendant's attack on the 

probative force of Maldonado's testimony, characterizing it as a 
23

self-serving ploy to secure sentencing concessions on the 

indictments for his participation in the crimes. Maldonado's 

self-interest notwithstanding, the defendant made no headway in 

impeaching the credibility of Maldonado's testimony, a task made 

all the more difficult by the telephone records that 

substantially corroborated that testimony.

Beyond the damaging identification by Maldonado and the 

corroborating telephone records, the jury were presented with 

unimpeached testimony from the victims who identified the 

getaway vehicle that the police later discovered to belong to 

the defendant's girl friend. The defendant's connection to the 

vehicle was confirmed when he and his girl friend appeared at 

the police station the day after the robbery in the same vehicle 

asking questions about her vehicle.

14

Conclusion. Because the defendant has not met his burden 

to establish a substantial risk of a miscarriage of justice from 

the omission of the Rodriguez instruction, we affirm the 

convictions.

So ordered.

 

14 See note 2, supra.