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13-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 prosecutor. 

Constitutional Law, Assistance of counsel, Identification. 

Evidence, Identification, Photograph, Argument by 

prosecutor, Rebuttal, Firearm. Firearms.

Indictments found and returned in the Superior Court 

Department on July 2, 2010. 

The cases 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 robbery 

while masked, G. L. c. 265, § 17; home invasion, G. L. c. 265, 

§ 18C; and kidnapping, G. L. c. 265, § 26. On appeal, he argues 
2

that (1) the judge erred in not -- sua sponte, and without a 

defense request -- giving the five factors concerning eye 

witness identifications set forth in Commonwealth v. Rodriguez, 

378 Mass. 296 (1979) (Rodriguez); (2) his trial attorney's 

failure to request such a full Rodriguez instruction constituted 

ineffective assistance; (3) the Commonwealth failed to produce a

report concerning a photographic (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 used 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 

witness to testify that, prior to the robbery, he had seen the 

defendant at a barbershop with a MAC-11 and a sawed-off shotgun, 

even though defense counsel voiced no objection and had elected

to inform the jury in his opening statement that no such weapons

were found in a search of the barbershop. We affirm.

1. Background. The following is a summary of the trial 

evidence. On June 13, 2010, Gary Leger held one of his regular 

high stakes poker game at his apartment in North Andover. The 

game started 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 progress. (As shall be 

seen in further disclosure of the facts, Shorty was an 

accomplice with the defendant in the planning, 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, later identified as the defendant, held what Shorty 

later described to the police as a .380 caliber semiautomatic 

handgun. The defendant ordered the players around the table to 

place their cellular telephones (cell phones) and hands on the 

table, while the other masked man went around the table 

collecting cash and cell phones and tied 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 defendant, and stated to all the card 

players present, "Yeah, it was me. I did it. I set it up." 

The robbery lasted approximately thirty to forty minutes. The 

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 Shorty, 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

Route 495. Soon afterwards, the two men reported to a North

Andover 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, the 

defendant accompanied Fernandez to the North Andover police 

station. 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.

Fernandez gave Detective Cronin her Massachusetts driver's 

license. The defendant, who referred to Fernandez as "his 

girl," produced a business card from Prudential Real Estate with 

his photograph and name, Santiago Navarro, appearing thereon.

On June 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 another array that included a 

photograph of the defendant. Only two players, Leger (the game 

organizer) and Marelis (one of the players who had followed the 

robbers in the Mitsubishi) were able to identify the defendant.

Both men told the detective that their degree of certainty was 

eight out of ten.

2. The identification instructions. On the fourth day of 

trial, the judge asked counsel to provide him with proposed jury 

instructions. Defense counsel did not do so. Notwithstanding 

the lack of such a request, the judge did give eye witness 

instructions to the jury.

1

 

1 In his jury charge the judge first highlighted 

identification as a central contested issue stating 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."

The 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 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."
6

 

Next, the judge emphasized that the identification burden 

of proof rests 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 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."

The essence of the above identification instruction, in 

accord with Pressley, emphasized the potential for honest goodfaith 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 Judicial 

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 instructions, 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 

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?"
7

The predicate instruction for all of the identification 

factors set forth in Rodriguez originates with a request 

thereof. "Fairness 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 testimony 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 may have been [honestly] mistaken" [emphasis added]). 

Hence, in the absence of any request for identification 

instructions, "there was no error by the judge." Commonwealth

v. Rodriguez, 457 Mass. 461, 475 (2010). In this case, we 

conclude that the eyewitness instructions given by the judge 

were adequate. See note 1, supra.

In addition, viewing the full trial record, from all that 

appears, defense counsel did not render ineffective assistance,
8

vis-à-vis, the identification defense. Defense counsel 

vigorously pressed the issue of identification, and that defense 

was squarely placed before 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, repeatedly 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 witnesses' recollections, such as what the intruders were 

wearing, whether they wore gloves, and even the color of their 

clothing. Defense counsel 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 decision 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, that is, Rodriguez instructs 

jurors to focus on the eyewitness's "capacity and opportunity to 

observe the suspect" and the "length of time before 

identification[]." Here, Shorty clearly spent a lot of time 

with the defendant. Furthermore, the robbery transpired over 

thirty minutes during which the two card players observed the 

robbers, and the identifications were made by the two card 

players within three days of the incident. 
9

of ten. Defense counsel then expounded on the elicited 

inconsistencies and "ably targeted [the] 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 miscarriage 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 telephone records. The Commonwealth introduced 

telephone records that showed that from June 7 to June 14, 2010, 

a few days before and the night of the robbery, fifty-eight 

calls were made or attempted between Shorty and the cell phone

number he 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 defendant 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 miscarriage 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 made between that number and 

the cell phone number of Fernandez, the defendant's "girl."

Further corroborating, and bolstering, the strength of the 

Commonwealth's proof of identification was the 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 Detective Cronin in that very same 

car.

3. The photo array report. At trial, Shorty made an incourt identification of the defendant. Shorty testified at 

trial that he "believe[d]" he had viewed a photo array and 

thought 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 thought Shorty had selected the 

defendant's picture from a photo array. 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 would "have to go back 

and look at everything." The judge said he would give an 
11

instruction to strike 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 diligent search, no such report of a photo 

array displayed to Shorty exists.

4

4. The defendant's nickname. The defendant next claims,

for the first time on appeal, that the prosecutor's unobjectedto use of his nickname, "Raw," during Shorty's examination and 

in closing argument was error and caused a substantial risk of a 

miscarriage of justice. That 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, the 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 commission 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 identification 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 charges or criminal conduct. At the motion in limine 

hearing, prior to trial, the prosecutor indicated that he did 

not intend to introduce any bad acts evidence.

At trial, during his opening statement, defense counsel,

previewing a future challenge to Shorty's truthfulness, referred 

to a MAC-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 barbershop prior to the robbery,

6 but no such 

 

5 The defendant 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 

stated as follows:

"[The police] got a search warrant to search the 

establishment of [the defendant], a barbershop in Lowell 

where . . . Shorty, the convicted criminal, said you're 

going to find that gun; you're going to find it in the 

basement of a barbershop in a freezer.

"So the police get a search warrant. They go to the 

barbershop. They look for a gun. They don't find that 

gun.
13

guns, contrary to Shorty's story, were found in a search 

conducted at the barbershop. Given this revelation in the 

defendant's opening, near the end of Shorty's direct examination

(before asking any questions about the guns) the prosecutor, at 

a sidebar conference, requested clarification from the judge 

concerning whether the defendant's pretrial motion in limine was 

intended to include as prior bad acts reference to the MAC-11 

and the sawed-off shotgun. The judge noted 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 the door

allowing the prosecutor to ask about those guns. Indeed the 

judge had specifically stated to defense counsel, "I assume that 

you wouldn't object to him asking questions about that." 

Defense counsel responded, "No." Thereafter, as Shorty's 

testimony resumed, Shorty testified that, prior to the robbery,

he had seen the defendant at the barbershop with a MAC-11 and a 

sawed-off shotgun. There was no objection or motion to strike

following that 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 silencer.'

"Police didn't find those guns either."

7 Defense counsel's belated objections during direct 

examination of Shorty to questions about why and where the 

defendant was moving those guns did not preserve the objection

as to inadmissible prior bad act evidence -- contrary to the 
14

The defendant now claims that Shorty's testimony concerning 

those guns was improperly admitted. There was no error. That

line of inquiry was opened up by the defendant's opening

statement. Further, the 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) ("Rebuttal 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"). 

Judgments affirmed.

 

defendant's contention. See Commonwealth v. Howell, 49 Mass. 

App. Ct. 42, 48 n.7 (2000).