COMMONWEALTH vs. DAVID MURRAY.

ABRAMS, J. After a trial by jury the defendant was convicted of three armed robberies (G. L. c. 265, Section 17 [1984 ed.]), entering

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a dwelling house while armed and making an assault on a person therein with intent to commit a felony (G. L. c. 265, Section 18A [1984 ed.]), and larceny of a motor vehicle (G. L. c. 266, Section 28 [1984 ed.]). [Note 1] A single justice of the Appeals Court allowed the defendant's request for a late appeal. The defendant also appeals from a Superior Court order denying his motion for new trial. In an unpublished memorandum and order, the Appeals Court affirmed the convictions and the denial of the motion for new trial, 19 Mass. App. Ct. 1102 (1984). We granted further appellate review to determine whether the judge's instructions require reversal. We also affirm the convictions and the denial of the motion for new trial.

We summarize the evidence. On Sunday evening, March 1, 1981, at approximately 8 P.M., a woman identifying herself as "Ann" arrived at a house in Dorchester and asked the woman who answered the door, one Tracey Toney, if she could speak to Larry Scott. Tracey assumed that the woman was Ann Strong, Larry Scott's former girlfriend and the mother of a young child, Nathaniel Strong, who was temporarily staying in the house. Tracey went upstairs to find Scott and on her return found two armed men, one of whom was masked. "Ann" had disappeared. The men rounded up several adult occupants of the house, tied them with electrical cords and strips of sheets and robbed them of jewelry, cash, a television set, and a stereo. A third intruder [Note 2] wearing a scarf and blue skull cap arrived later on the second floor.

Dara Toney was struck on the head with a pistol and was later treated at the hospital for a cracked skull. The intruders forced Scott to give them the keys to his car and then left.

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Immediately thereafter, one of the Toney sisters called the police. Approximately two minutes later, the police arrived and sent a description and the registration number of the missing automobile over the police radio. A police officer said that, when he arrived, he saw several adults and children in an "hysterical" state. He observed a lump over Dara Toney's right eyebrow and several knotted electrical cords and strips of sheets lying on the floor. The victims described the masked robber as a black male, "tall" (six feet), "built," and wearing a blue ski jacket, dungarees, and black shoes. The masked robber was wearing eyeglasses underneath a blue pullover ski mask. The second robber was described as being a black male, dark complexion, approximately 5'8" tall, with a stocky build and a mustache. He was wearing a knit ski hat and a blue nylon jacket. [Note 3]

Approximately fifteen minutes after the radio dispatch, the police stopped the defendant and his sister in Scott's automobile. There were no masks, guns, or stolen articles in the car. Scott was brought to the place where the automobile was stopped. Scott identified the defendant as the masked assailant. [Note 4]

The defense. According to Strong, she telephoned Scott at approximately 3 P.M. to tell him she would pick up her son, Nathaniel. [Note 5] She arrived at the house at 6 P.M. Tracey Toney refused to let her take Nathaniel because Scott was not home.

Strong went to the defendant's home. Strong wanted the defendant to help her regain custody of Nathaniel. Because it was raining the defendant telephoned his sister to get a ride, but she apparently was not home. In any event, Strong and the defendant went to Scott's home by bus. They arrived at 6:45 P.M. Strong and the defendant said that at the house there

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was a twenty-minute, bitter confrontation between Tracey Toney and Larry Scott, and Strong and the defendant. Strong and the defendant left Scott's home without Nathaniel. On leaving the home, they met the defendant's sister who was waiting for them in the rain outside the house. [Note 6] Strong said that Scott had given her a set of keys to his car months earlier, and that she and the defendant took the car "in retaliation." The three of them rode together to Strong's house about two blocks away where Strong got out of the automobile. The defendant and his sister continued on in the car until stopped by police a short time later.

The instructions. Defense counsel did not object to the judge's instructions. [Note 7] Our review is therefore limited to determining "whether it was so erroneous that it created a `substantial risk of a miscarriage of justice.'" Commonwealth v. Pickles, 393 Mass. 775, 776 (1985), quoting Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). See Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979).

The defendant asserts that the judge erred in his instructions by removing disputed issues of fact from the jury and by expressing his opinion on the credibility of witnesses. In support of his assertions, the defendant "parses the charge and attacks it piecemeal. We, however, view the charge in its entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury." Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980). See Commonwealth v. Albert, 391 Mass. 853, 857-858 (1984).

The defendant asserts that the judge's instructions undercut his entire defense by focusing on the identification issue. This emphasis, he claims, "submerged" the most crucial issue -- whether a crime had occurred -- and usurped the fact-finding

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function of the jury. See Commonwealth v. McDuffee, 379 Mass. 353, 360 (1979). To illustrate this contention, the defendant points to the following language in the instruction: "Now, I think ... both lawyers would agree that the most important issue in this case, the most important issue in this case is the identification of the defendant as the perpetrator of the crime. The Commonwealth has the burden of proving identity of this defendant as the man who was in that house on the occasion in question .... If you are not convinced beyond a reasonable doubt that the defendant was the person -- or who had this mask and who did what the Commonwealth says -- if you are not convinced beyond a reasonable doubt as to the identity of that man, then you are required to acquit this defendant." The defendant also attacks another portion of the identification instructions as conveying a message to the jury that the crime actually occurred. [Note 8] As a corollary, he argues that the judge, by indicating that the crime had occurred, impermissibly commented on the defendant's credibility.

The Commonwealth responds that the challenged instructions in the context of the over-all instruction "clearly and accurately" informed the jurors that the Commonwealth had to prove the elements of each crime, as well as the identification of the defendant as the perpetrator. In support of its position, the Commonwealth first points to the judge's prophylactic instruction at the outset of the charge in which he cautioned the jurors against making any inference about his opinion of the facts. [Note 9] Next, the Commonwealth points to the particular emphasis

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the judge placed on the jurors' role as fact finders in a case where the testimony was so "widely divergent." [Note 10]

The Commonwealth notes that the judge repeated the admonition to the jurors that they were the sole finders of the facts. When the judge instructed them on their duty in assessing credibility, [Note 11] he told them they must find facts solely from the

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evidence, [Note 12] and that the Commonwealth proves guilt by proving the facts beyond a reasonable doubt. [Note 13] Further, the Commonwealth points out that, although the judge omitted the word "alleged" before the word "crime" in the identification instructions, he also used the phrase "who did what the Commonwealth says," thus negating a possible inference that a crime had occurred. In concluding this portion of the instructions, the Commonwealth notes, the judge emphasized that the burden of proof is on the Commonwealth as to every element of the crimes charged, which includes the identification of the defendant.

The judge then described the elements of each offense charged and advised the jury that "each of these elements must be established in evidence beyond a reasonable doubt before you may convict the defendant." The defendant does not argue that the "boilerplate" instructions were erroneous. Rather, he asserts that in this case the "boilerplate" instructions undercut his defense and thus exceeded the bounds of proper comment. [Note 14] We do not agree.

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We believe that, read as a whole, the judge's instructions made it very clear to the jury that the responsibility for finding the facts was theirs and theirs alone, and that establishing the elements of the crimes charged was part of the fact-finding function. The omission of the specific words which appellate counsel might have preferred does not require a conclusion that the instructions were so flawed as to necessitate a new trial. The fact is that, if the jurors concluded that the Commonwealth proved each and every element of the crimes beyond a reasonable doubt, they necessarily determined that the crimes occurred.

The defendant next argues that the instructions on identification impermissibly intruded into the jury's fact-finding function. He contends, because he did not assert a defense of mistaken identification, it was error for the judge to instruct on identification as an issue in this case. We reject the defendant's argument. It was incumbent on the Commonwealth as part of its case to prove beyond a reasonable doubt that the masked intruder was the defendant. Thus, some instructions on how jurors should evaluate testimony concerning the identity of the masked intruder were necessary. [Note 15]

Last, the defendant argues that the judge should have commented on his theory of defense. "[T]he defendant was to some extent merely negating the propositions of fact as tendered and sought to be proved by the prosecution, and a negative does not lend itself readily to illustration; ... [further,] any references to the defendant's theory of the case must steer clear of the shoal of intimating that the jury must accept that theory in order to acquit him." Commonwealth v. Therrien, 371 Mass. 203, 206 (1976). Trial counsel's decision not to request an instruction on his theory of the case well might reflect a determination on his part that the instructions on the Commonwealth's burden of proof should not be diminished by any

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reference to the defense. "When the arguably reasoned tactical or strategic judgments of a lawyer are called into question, we do not `second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty.'" Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979), quoting Commonwealth v. Stone, 366 Mass. 506, 517 (1974). [Note 16]

We remind counsel that Federal as well as State law requires parties to make their objections to instructions known initially to the trial judge, not the appellate court. "Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." (Footnote omitted.) Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Without a valid objection our reviewing function is limited to whether there is a substantial risk of a miscarriage of justice. Commonwealth v. Sheline, 391 Mass. 279, 291-292 (1984). See Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979). No such showing is made on this record. [Note 17]

Judgments of the Superior Court affirmed.

Order denying motion for new trial affirmed.