BERRY, J.
After a jury trial in Superior Court, the defendant was convicted on ten counts each of armed robbery while masked,
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" 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
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, 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 eyewitness instructions to the jury.
The predicate instruction for all of the identification factors set forth in Rodriguez originates with a request thereof. "Fairness to
In addition, viewing the full trial record, from all that appears, defense counsel did not render ineffective assistance, vis-à-vis, the identification defense. Defense counsel vigorously pressed the issue of identification, and that defense was squarely placed before the jury.
Furthermore, in concluding that there was neither ineffective assistance of counsel, nor error creating a substantial risk of a miscarriage of justice,
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.
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 the prosecutor's closing argument was consistent with Shorty's testimony.
5. Reference to the barbershop firearms. Prior to trial, the defendant filed a motion in limine to exclude evidence of prior
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,
Judgments affirmed.
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).
Next, the judge emphasized that the identification burden of proof rests with the Commonwealth.
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.