Commonwealth v. Navarro (Lawyers Weekly No. 10-062-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11878 COMMONWEALTH vs. SANTIAGO NAVARRO. Essex. October 5, 2015. – May 5, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Practice, Criminal, Instructions to jury, Assistance of counsel. Constitutional Law, Assistance of counsel. 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. 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.[1] 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 […]