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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 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 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 in-
court 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 unobjected-
to 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).