Commonwealth v. Navarro

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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 two-

family 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 cross-

examined 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-evidence-

report-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.