NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

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).
