HINES, J.
In January, 2012, a Superior Court jury convicted the defendant, Santiago Navarro, on thirty 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.
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 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 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
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.
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 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
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.
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
In Rodriguez, the seminal case in our law on eyewitness identification instructions, we linked entitlement to the 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,
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 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
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 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 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
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:
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 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 substitute
b. The defendant argues that the lack of the Rodriguez instruction on the effect of failed or inconclusive identifications
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 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.
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.
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 includes a double-blind
d. As to the instruction on the length of time between the robbery and the identification,
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
We have taken due notice of the defendant's attack on the probative force of Maldonado's testimony, characterizing it as a 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.
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.
Rodriguez, 378 Mass. at 310 (Appendix).