Heard: October 5, 2015.
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.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
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. 2 65, § 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. For the 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.
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 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. 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.
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 ...