Argued: October 1, 2014.
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.
Present: Berry, Hanlon, & Carhart, JJ.
[21 N.E.3d 983] 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 tat (1) the judge erred in not -- sua sponte, and without a defense request -- giving the five factors concerning eyewitness identifications set forth in Commonwealth v. Rodriguez, 378 Mass. 296, 391 N.E.2d 889 (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 from 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 firearm 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.
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 [21 N.E.3d 984] 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 ...