Commonwealth v. Navarro (Lawyers Weekly No. 11-166-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-1432 Appeals Court COMMONWEALTH vs. SANTIAGO NAVARRO. No. 13-P-1432. Essex. October 1, 2014. – December 30, 2014. Present: Berry, Hanlon, & Carhart, JJ. Robbery. Home Invasion. Kidnapping. Practice, Criminal, Assistance of counsel, Identification of defendant in courtroom, Instructions to jury, Argument by prosecutor. Constitutional Law, Assistance of counsel, Identification. Evidence, Identification, Photograph, Argument by prosecutor, Rebuttal, Firearm. Firearms. 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. 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 that (1) the judge erred in not — sua sponte, and without a defense request — giving the five factors concerning eye witness identifications set forth in Commonwealth v. Rodriguez, 378 Mass. 296 (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 in 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 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. 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. […]