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- P
- 1432 Appeals Court

COMMONWEALTH vs . SANTIAGO NAVARRO.

No. 13

- P
- 1432. Essex. October 1, 2014.

- December 30 , 2014.
Present: Berry, Hanlon, & Carhart, JJ.
Robbery
. Home Invasion
. Kidnapping
. Practice, Criminal , Assistance of counsel, Identification of defendant in courtroom, Instructions to jury, Argument by prosec utor. Constitutional Law , Assistance of counsel, Identification. Evidence , Identification, Photograph, Argument by prosecutor, Rebuttal, Firearm. Firearms
.

I ndictments found and returned in the Superior Court Department on July 2, 2010.
The case s were tried before Douglas H. Wilkins , J.

Elizabeth A. Billowitz for the defendant
. Kenneth E. Steinfield , Assistant District Attorney, for the Commonwealth.

BERRY, J. After a jury trial in Superior Court , the defendant was convicted on ten counts each of armed robbe ry while masked, G. L. c. 265, § 17 ; home invasion, G. L. c. 265, § 18C ; and kidnapping, G. L. c. 265, § 26. On appeal, he argues2

that (1) the judge erred in not

-- sua sponte, and without a defense request

-- giving the five factors concerning eye witness i dentifications set forth in Commonwealth v . Rodriguez , 378 Mass
. 296 (1979) ( Rodriguez ) ; (2) his trial attor ney's failure to re quest such a full Rodriguez instruction constituted i neffective assistance; (3) the Commonw ealth failed to produce a report concerning a photo graphic (photo) array in which an accomplice to the robbery identified the defendant , notwithstanding the Commonwealth's representation that no such report exists ; (4) it was error for the prosecutor to use, without objection, the defendant's nickname "Raw" in examination of an accomplice witness who use d that nickname to refer to the defendant and in closing when referring to that witness's testimony; and (5) it was improper to allow the accomplice witne ss to testify th at , prior to the robbery , he had seen the defendant at a barbershop with a M AC

- 11 and a sawed

- off shotgun , even though def ense counsel voiced no objection and had elect ed
to inform the jury in his opening statement that no such weapon s

w ere found in a search of the barber shop
. We affirm
. 1
. B ackground
. The following is a summary of the trial evidence
. On Jun e 13, 2010, Gary Leger held one of his regular high stakes poker game at his apartment in North Andover
. The game sta rted between 8 and 10 P . M . , with four to six card players , and later grew to ten players
. Christopher "Shorty"3

Maldonado arrived while the game was in progre ss . (A s shall b e seen in further d isclosure of the facts , Shorty was an accomplice with the defendant in the p lanning , and actual robbery , of the poker game . ) Around 2:21 A . M . , two masked men, their faces mostly hidden by some combination of masks, bandanas, hoods, kerchiefs, ski masks, hats , or caps, came through the back door
. One of the intruders, late r identified as the defendant, held what Shorty later described to the police as a . 38 0 caliber semiautomatic handgun
. The defendant ordered the players around the table to place their cell ular tele phones (cell phones) and hands on the table, while the other masked man went around the table collecting cash and cell phones and ti ed up all the players ' hands with zip ties
. The second masked man also took $2,000 from the "bank" held by Leger
. To make it appear that Shorty was also a victim in the robbery, Shorty's hands were bound with a zip tie , but the tie was left loose
. Shorty freed himself from his loosely tied zip tie while the robbery was in progress
. At that point, Shorty stood up, took the handgun from the defe ndant, and stated to all the card players present , " Y eah, it was me
. I did it
. I set it up
. " The robbery lasted approximately thirty to forty minutes
. T he defendant, Shorty , and the second masked man left via the backdoor
.4

One player, Joel Marelis , testified at trial that he and another player, Daniel Ferreras , were able to free themselves from their zip ties, looked out the window, and saw the robbers, including S horty, get into a dark blue Mitsubishi with the license plate number 7777

- MF or 777

- MF . Both men got into
Ferreras 's vehicle and followed the robbers for a few minutes , but stopped when the Mitsubishi took the entrance ramp onto
R oute 495
. Soon afterwards, the two men reported to a North Ando ver police officer that the vehicle used as the getaway car was a blue Mitsubishi Galant, license plate number 7777 MF
. At 2:58 A . M . , the police determined that the Mitsubishi was registered to a Milagros Fernandez , who was later identified as the defendant's girl friend
. The day after the robbery , t he defendant accompanied Fernandez to the North Andover p ol ice

s tation
. The two were driving a dark blue Mitsubishi, license plate number 7777

- MF
-- matching the description of the getaway

car . The pair requested to speak with Detective Daniel Cronin
. Fe rnandez gave Detective Cronin her Massachusetts driver's license
. T he defendant , who referred to Fernandez as "his girl," produced a business card from Prudential R eal E state with his photograph and name, Santiag o Navarro , appearing thereon
. On Ju ne 14, 2010, Detective Cronin arranged a photo array that included Shorty
. Nine out of the ten players identified Shorty as the inside man
. Three days later, on June 17,5

Detective Cronin put together an other array t h at included a photo graph of the defendant
. O nly t wo players, Leger (the game organizer) and Marelis ( one of the players who had follow ed the robbers in the Mitsubishi ) were able to i dentify the defendant
. Both men told the detective that their degree of certainty was eight out of ten
. 2
. The identification instruction s . On the fourth day of trial, the judge a sked counsel to provide him wit h proposed jury instructions
. Defense counsel did not do so
. Notwithstanding the lack of such a request , the judge did g i ve eye witness instructions to th e jury
. 1

1 In his jury charge t he judge f i r st highlighted identification as a central contested issue stating as follows :

" Now, o ne of the most important issues in this case is the identification of the defendant as the alleged perpetrator of the crime. "
T he judge then instructed the jury on the potential for honest good

- faith mistaken identifications as set forth in Commonwealth v. Pressley , 390 Mass. 617, 620 (1983).

" 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 truth or is lying, you must also consider whether that witness's testimony is accurate or instead is an honest mistake. Sometimes people p erceive 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. "6

Next , the judge emphasized that the identification burden of proof res ts with the Commonwealth.

" 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 exami ning 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 whet her that witness's identification is accurate or instead may well have been an honest good

- faith identification that nonetheless may have been mistaken. " The essence of the above identification instruction, in accord with Pressley , emphasized the potentia l for honest good

faith mistaken identifications and that the Commonwealth's burden of proof extended to proving identification beyond a reasonable doubt. These considerations are very close to the factors set forth in Rodriguez
. Indeed, as the Supreme J udicial Court has noted, the identification instruction approved in Pressley "simply identifies more specifically what is intended by the Rodriguez instruction." Commonwealth v. Pires , 453 Mass. 66, 71 (2009). In his credibility instruction s , the judge essentially told the jurors to ponder whether the witnesses had the opportunity to see the events and then accurately describe them
.

"Did the witness appear to know what the witness was talking about, what was the opportunity or lack of opport unity 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?"7

The predicate instruction for a ll of the identification factors set forth in Rodriguez originates with a request there o f
. " F airness to a defendant compels the trial judge to give an instruction on the possibility of an honest but mistaken identification when the facts permit it and when the defendant requests it " (emphasis added). Commonwealth v . Caparrotta , 34
Mass . App . Ct . 473, 476 (1993), quoting from Commonwealth v . Pressley , 390 Mass
. 617, 620 (1983) . See Commonwealth v . Franklin , 465 Mass
. 895, 912 (2013) (" [W] here requested by the defendant , a judge should provide specific guidance to the jury regarding the evaluation of such eyewitness te stimony through some variation of the approved identification instruction" [ emphasis added ] ) ; Commonwealth v . Jones , 423 Mass
. 99, 110 (1996) (" [O] n request , specific instructions concerning eyewitness identification are often necessary
. . . [and] in certain instances, on request, a jury should be instructed that a witness ma y have been [ honestly ] mistaken " [ emphasis added ] )
. Hence, in the absence of any re quest for identification instructions, "there was no error by the judge
. " Commonwealth

v . Rodriguez , 457 Mass
. 461, 475 (2010)
. In this case, w e conclude that the eyewitness instructions given by the judge were adequate
. See note 1, supra . In addition, viewing th e full trial record, from all that
appears, defense counsel did not render i neffective assistance ,8

vis

- à

- vis, the identification defense
. D efense counsel vigorously pressed the issue of identification , and that defense was squarely placed befor e the jury
. 2 Defense counsel methodically cross

- examined each eye witness, relentlessly pressing their opportunities and capacities to accurately observe the faces of the masked intruders, taking each witness step by step through the entire ordeal, repeat edly eliciting testimony that only a narrow band of the defendant's face

-- from the bridge of his nose to his eyebrows

-- was visible, and that the players were scared and focusing on the gun rather than the man holding it
. As a result of this insistent line of questioning, defense counsel was able to elicit inconsistencies in the witness es' recollections, such as what the intruders were wearing, whether they wore gloves, and even the color of their clothing
. Defense c ounsel also ensured the jury were aware that only two out of the ten players were able to identify the defendant, and that their degree of certainty was only eight out

2 Defense counsel's decisi on not to request the Rodriguez instruction may have been tactical. First, defense counsel may have strategically decided that a Rodriguez instruction would have been counterproductive in that it emphasizes the time within which a perpetrator is seen, tha t is , Rodriguez instructs jurors to focus on the eyewitness ' s "capacity and opportunity to observe the suspect" and the "length of time before identification [] ." He r e, Shorty clearly spent a lot of time with the defendant. Furthermore, the robbery transpired over thirty minutes during which t he two card players observe d the robbers , and th e identifications were made by the two card players within three days of the incident.9

of ten
. Defense c ounsel then expounded on the elicited inconsistencies and "ably targeted [th e] infirmities in [the] identification[s]" in his closing
. Commonwealth v. Willard , 53
Mass . App . Ct . 650, 661 (2002). Furthermore, in concluding that there was neither ineffective assistance of counsel, nor error creating a substantial risk of a miscar riage of justice, 3 we bear in mind
that the Commonwealth's identification evidence proving that the defendant was the gunman was strong
. As noted, Shorty, an accomplice in the robbery, testified that the defendant was the gunman and that he and the defendant had planned and carried out the robbery together
. Significantly, Shorty's testimony was corroborated by tele phone records
. The Commonwealth introduced tele phone records that showed that from June 7 to June 14, 2010, a few days before a nd the night of the robbery , fifty

- eight calls were made or attempted between Shorty and the cell phone number h e identified as the defendant's
. Eleven of the telephone calls occurred between midnight and 2:21 A . M . on the night of the robbery
. Shorty and the d efendant also exchanged twenty
- one text messages between midnight and 2:09 A . M . on the

3 "[I]f an omission of counsel does not present a substantial risk of a mis carriage of justice
. . . , there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitution." Willard , supra at 660, quoting from Commonwealth v. Curtis , 417 Mass. 619, 625 n.4 (1994).10

night of the robbery
. In addition, Shorty's testimony that the telephone number was that of the defendant was corroborated by the record's showing that fifty

- nine calls or attempted calls and seventy

- nine text messages were m ade between that number and the cell phone number of Fernandez , the defendant's "girl
. " Further corroborating , and bolstering , the strength of t he Commonwealth 's proof of identification was t he license plate
number , 7777

- MF , reported by the two card players as being the license plate number on the getaway car , a blue Mitsubishi Galant registered to Fernandez
. Lastly, the day after the robbery, the defendant and Fernandez , in tandem , went to the police station to speak with Detect ive Cronin in th at very same

car . 3
. The p hoto a rray report . At trial, Shorty made an in

court identification of the defendant
. Shorty testified at trial that he "believe[d]" he had viewed a photo array and though t he had "pick[ed] someone out," but he could not remember signing his name or putting a date on any photograph. Detective Cronin later testified that he though t Shorty had selected the defendant's picture from a photo a rray . At a sidebar conference , defense counsel stated that he had not received a report of this identification
. The prosecutor indicated that he thought the report existed , but that he woul d "have to go back and look at everything
. " The judge said he would give an11

instruction to strik e the testimony , if a report existed and had not been disclosed
. No report was produced , and defense counsel took no further action
. The Commonwealth has represented on appeal that , after a di ligent search, no such report of a photo array display ed to Sh orty exi s t s . 4
4
. T he defendant's nickname
. The defendant next claims , for the first time on a ppeal , that the prosecutor's unobjected

to us e of his nickname, "Raw," during Shorty's examination and in closing argument was error and caused a substantial risk of a miscarriage of justice
. T hat is not persuasive
. Shorty testified only that he knew the defendant by his nickname "Raw
. " Thus, the nickname was material to identification
. See Commonwealth v . Dyer , 460 Mass
. 728, 754 (2011) , cert. denied, 132 S. Ct. 2693 (2012), quoting from Commonwealth v. Martinez , 458 Mass. 684, 697

– 698 (2011) ( " [A] prosecutor may refer to, or ask witnesses about, a defendant's nickname
. . . when there is a reason to do so")
. Further, t he use of the nickname "Raw" in

4 Recently, in Commonwealth v. Crayton , 470 Mass. 228, 241 (2014), and Commonwealth v. Collins , 470 Mass. 255, 265 (2014), the Supreme Judicial Court announced new rules, to be applied prospectively, requiring that, where an eyewitness who was present during the commissi on of a crime has not participated in a prior, out

- of

- court identification or has made something less than an unequivocal positive identification of the defendant during a nonsuggestive identification procedure before trial, an in

- court showup identificati on by the witness will be admissible in evidence only where there is "good reason" for its admission. We do not address whether these new rules apply to the instant case, as the defendant's trial commenced prior to the release of those decisions.12

the prosecutor's closing argument was consistent with Shorty's testimony
. 5
5
. Reference to the barbershop firearms
. Prior to trial, the defendant filed a motion in limine to exclude evidence of prior bad acts
. The motion in limine was limited to prior criminal char ges or criminal conduct
. At the motion in limine hearing , prior to trial, t he prosecutor indicated that he did not intend to introduce any bad acts evidence
. A t trial, during his opening statement , defense counsel, previewing a futur e challenge to Shorty's truthfulness , referred
to a M AC

- 11 and a sawed

- off shotgun (neither of which was the gun used in the robbery) . Defense counsel disclosed to the jury that Shorty had told the police that he had seen those guns at the defendant's bar bershop prior to the robbery , 6 but no such

5 The de fendant also claimed similar error when Detective Cronin used the nickname "Raw" in his testimony. This contention is without merit for the reasons discussed above.

6 Specifically, in his opening statement defense counsel s t a te d as follows :

"[The police] got a search warrant to search the establishment of [the defendant], a barbershop in Lowell where . . . Shorty, the convicted crimi nal, said you're going to find that gun; you're going to find it in the basement of a b arbershop in a freezer.

" So t he police get a search warrant. They go to the barbershop. They look f or a gun. They don't find that gun.13

gun s , contrary to Shorty's story , w ere found in a search conducted at the barbershop
. Given this revelation in the defen dant's opening , n ear the end of Shorty's di rect examination ( before asking any questions about the guns ) the prosecutor, at

a sidebar conference, requested clarification fr o m the judge concerning w hether the defendant's pretrial motion in limine was intended to in clude as prior bad act s reference to t he M AC

- 11 and the sawed

- off shotg un . The j udge no ted that it was defense
counsel who had referenced the MAC

- 11 and the sawed

- off shotgun in his opening statement and , in effect, had opened th e door allowing the prosecutor to ask about those guns. Indeed the judge had specifically stated to defens e counsel, "I assume that you wouldn't object to him asking questions about that." Defense counsel responded, "No." Thereafter, as Shorty 's
test imony resumed, Shorty testified that , prior to the robbery , he had seen the def endant at the barbershop with a M AC

- 11 and a sawed

- off shotgun
. There was no objection or motion to strike following th at testimony
. 7

" Shorty told them, ' Oh, by the way, not only is that gun going to be there, there's going to be a sawed

- off shotgun and a Mach 11 with a sile ncer. '

" Police didn't find those guns either."

7 Defense counsel's belated objection s during direct examination of Shorty to questions about why and where th e defendant was moving th ose guns did not preserve the objection as to inadmissible prior bad act evidence

-- contrary to the14

The defendant now claims that Shorty's testimony concerning
tho s e guns was improperly admitted
. The re was no error . Th at line of inquiry was opened u p by the defen dant's opening
statement . Further, t he testimony was admissible to rebut the argument by defense counsel that because such firearms were not found in a police search of the barbershop , Shorty was a liar
. See Commonwealth v . Whitman , 453 Mass . 331, 342 (2009) (citation omitted) (" R ebuttal is legitimate when it responds to the opponent's case")
. See also Commonwealth v . Anestal , 463 Mass
. 655, 665 (2012) (prior bad act evidence "admissible if it

' rebut [ s ] the defendant's contentions ' made in the course of trial")
. Judgment s affirmed
.

defendant's contention. See Commonwealth v. Howell , 49 Mass. App. Ct. 42, 48 n.7 (2000).