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SJC-11763
COMMONWEALTH vs. ELVIN BASTALDO.
Hampden. February 5, 2015. - June 25, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Mayhem. Arrest. Resisting Arrest. Identification. Evidence,
Identification, Consciousness of guilt, Flight. Practice,
Criminal, Identification of defendant in courtroom, Request
for jury instructions, Instructions to jury.
Indictments found and returned in the Superior Court
Department on March 14, 2013.
The cases were tried before Constance M. Sweeney, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
Karen A. Newirth, of New York, & Sarah L. Leddy, for The
Innocence Project, Inc., amicus curiae, submitted a brief.
Jessica LaClair, for Juan Bastaldo, amicus curiae,
submitted a brief.
2
GANTS, C.J. In the parking lot of a night club in
Springfield, the defendant, Elvin Bastaldo, punched the victim,
Juan Benito, several times in the face using brass knuckles,
blinding him in one eye, while the victim was standing near a
police officer who was arresting the defendant's brother, Juan
Bastaldo (Juan).1 The defendant was convicted by a Superior
Court jury of mayhem, in violation of G. L. c. 265, § 14, and
resisting arrest, in violation of G. L. c. 268, § 32B.2,3
On appeal, the defendant claims that he is entitled to a
new trial because (1) the judge abused her discretion in denying
the defendant's requested cross-racial and cross-ethnic
eyewitness identification jury instruction where two of the
three eyewitnesses were "Caucasian" and the defendant was a
1
Because the defendant, Elvin Bastaldo, and his brother,
Juan Bastaldo, share the same last name, we will refer to the
brother as Juan and Elvin as the defendant. We note that the
victim, Juan Benito, shares the same first name as the
defendant's brother; we will refer to him only as the victim.
2
The trial judge dismissed an indictment charging assault
and battery by means of a dangerous weapon causing serious
bodily injury, G. L. c. 265, § 15A (c) (i), as duplicative of
the mayhem charge. The defendant was sentenced to serve from
six to seven years in State prison on the mayhem conviction, and
two years in a house of correction on the resisting arrest
conviction, to be served concurrently with the mayhem sentence.
3
The defendant and Juan were tried together. Juan was
convicted of assault and battery causing serious bodily injury,
two counts of assault and battery, and resisting arrest. Juan's
appeal was stayed in the Appeals Court pending our opinion in
this case.
3
"dark-skinned Hispanic of Dominican descent"; (2) the admission
of three in-court eyewitness identifications created a
substantial risk of a miscarriage of justice where it was the
first time any of them had formally identified the defendant;4
and (3) the judge committed prejudicial error by giving a
consciousness of guilt instruction that suggested to the jury
that the defendant was the assailant.5
We conclude that because this case was tried before our
opinion issued in Commonwealth v. Gomes, 470 Mass. 352, 376, 382
(Appendix) (2015), where we prospectively required that a jury
instruction on cross-racial eyewitness identification be given
in these circumstances, the judge did not abuse her discretion
in declining to give the defendant's requested cross-racial and
cross-ethnic instruction. We now revise the content of the
provisional model jury instruction regarding cross-racial
4
It is not clear from the briefs whether the defendant
challenges the admission of all three or only two of the in-
court eyewitness identifications. Out of an abundance of
caution, we treat the defendant's argument as challenging the
admission of all three in-court eyewitness identifications.
5
The defendant also claims that the judge abused her
discretion by denying his motion to expand the appellate record
to include a photograph of the defendant. This issue was
rendered moot after the Commonwealth responded to our request at
oral argument by supplementing the record with the photograph of
the defendant that the defendant had sought to add to the
record. The Commonwealth agrees that the photograph is
"accurate as to the defendant's general appearance and skin tone
at the time of trial." A photograph of the victim had been
admitted in evidence as an exhibit at trial.
4
identification that we issued in Gomes, as well as our guidance
as to when such an instruction should be given. In criminal
trials that commence after the issuance of this opinion, a
cross-racial instruction should always be included when giving
the model eyewitness identification instruction, unless the
parties agree that there was no cross-racial identification. We
authorize judges in their discretion to include a cross-ethnic
eyewitness identification instruction in appropriate
circumstances.
We further conclude that where this case was tried prior to
the issuance of Commonwealth v. Crayton, 470 Mass. 228 (2014),
and Commonwealth v. Collins, 470 Mass. 255 (2014), the admission
of the in-court eyewitness identifications did not create a
substantial risk of a miscarriage of justice. Finally, although
under the circumstances of this case the judge erred in
instructing the jury regarding consciousness of guilt, we
conclude that the error was not prejudicial. We therefore
affirm the judgments of conviction.6
Background. The jury could have found the following facts
from the evidence admitted at trial. At approximately 12:30
A.M. on September 2, 2012, Juan and three companions (not
6
We acknowledge the amicus briefs submitted by the
Innocence Project, Inc., and Juan Bastaldo.
5
including the defendant) attempted to enter a night club in
Springfield. The victim, who, by his description, served as the
"doorman, security, [and] host" of the club, denied their entry
because the companions with Juan were under twenty-one years of
age. A brief verbal and physical altercation ensued in which
Juan punched the victim in the chest, and the victim countered
by punching Juan below the eye. Springfield police officer
Thomas Liebel, who was working a security detail at the club,
ordered Juan to leave the area, which he did.
The club closed at 2 A.M. As Liebel walked to his vehicle
to leave, Juan and two or three other men appeared from a nearby
alleyway and headed toward the main entrance of the club.7 When
they attempted to enter the club, Liebel approached them and
ordered them to leave. The victim was standing inside the club
near the entrance, along with Ronald Kenniston, a club employee
who worked as a "bar back-up." As soon as the victim opened the
entrance door, Juan punched the victim in the side of the face.
Liebel moved to arrest Juan, but when Juan "went for"
Liebel, Liebel sprayed him with mace. Juan and the other men
7
Officer Thomas Liebel testified that there were three men
with Juan, including the defendant, and he identified the
defendant in court. He noted that the defendant wore dark
clothing, another Hispanic male wore a dark-colored shirt and a
white Yankees baseball cap, and the third man wore "an orange
outfit."
6
ran away, but Liebel gave chase and caught Juan. The victim
followed to make sure Liebel was all right, and stood near
Liebel as he struggled to handcuff Juan. The victim was then
suddenly struck in the face. He did not see from where the blow
came, but it rendered him dazed and blind in his left eye. When
he turned around to defend himself, he saw the defendant, whom
he had never seen before, standing a foot or two in front of
him. The defendant punched the victim in the face two or three
more times.
The defendant then approached Liebel and yelled in English,
"I am going to fuck you up, Officer." The defendant came within
three feet of Liebel before police sirens sounded and the
defendant "bolted." Liebel watched the defendant run through a
large parking lot, transmitted a description of the defendant's
clothing and location over the police radio, and learned one
minute later that the defendant had been arrested. Liebel soon
saw the defendant again before he was placed inside a police
transport vehicle with Juan, where they threatened and cursed
Liebel in English.
Kenniston had been standing approximately fifteen feet away
from the victim when a person "came up from behind [the victim]
and sucker punched his eye a few times." He identified the
defendant at trial as the person who threw the "sucker" punches.
Kenniston testified that he got a good look at the defendant's
7
face, and observed a silver object in the defendant's hand that
covered three of his fingers. He also watched the defendant
throw an object across the street, which sounded like metal when
it landed, before the defendant ran away.8 Kenniston saw police
officers catch up to the defendant, tackle him, arrest him, and
bring him back to Liebel.
Kenniston then drove the victim to a local hospital. On
the way, he passed the police transport vehicle and saw that the
defendant was in custody.9 The victim was later transferred to
Massachusetts General Hospital, where he underwent surgery on
his eye. At the time of trial, the victim was still blind in
his left eye.
The defendant testified at trial that he and Juan had
arrived at the club at approximately 9:05 P.M. by themselves and
remained inside until 2 A.M. He then left with Juan but Juan
stayed near the entrance to talk with someone while the
defendant continued walking. The defendant had not walked far
when he turned around to see that there was fighting and that a
police officer had handcuffed Juan. He saw that Juan had lost a
shoe, so he retrieved it and walked over toward him and the
8
Liebel testified that when the defendant punched the
victim, he observed "brass knuckles" covering each knuckle of
the defendant's right hand.
9
No formal showup identification ever took place.
8
officer who had handcuffed him, asking, "What happened?" When
the police were about to take Juan away, the defendant walked
through a parking lot in the direction of his house. Before he
reached the street, he was grabbed by the police and thrown to
the ground. The defendant stated that he did not see anyone
strike the victim, and did not punch the victim himself.10
Discussion. 1. Cross-racial and cross-ethnic eyewitness
identification instruction. At the charge conference, the
defendant's attorney requested the following cross-racial and
cross-ethnic eyewitness identification instruction:
"In this case, the identifying witnesses are of a
different race or ethnicity than the defendant. Scientific
studies have shown that it is more difficult to identify
members of a different race or ethnicity than members of
one's own. In addition, studies reveal that even people
with no prejudice against other races and substantial
contact with persons of other races still experience
difficulty in accurately identifying members of a different
race or ethnicity. Quite often people do not recognize
this difficulty in themselves. You should consider this in
evaluating the reliability of the witnesses' identification
of the defendant."
As to the race or ethnicity of the eyewitnesses, Kenniston
and Liebel testified that they are Caucasian; no evidence was
10
The defendant testified that he had been an amateur
fighter in the Dominican Republic for approximately eight years,
and continued boxing for approximately six months after he came
to the United States. He said that he came to the United States
in 2000 and worked "on and off" for approximately eight years at
a hotel as a dishwasher and kitchen assistant, but did not speak
any English. He said he was unable to work at the time of the
incident because of medical problems "with [his] head."
9
offered regarding their ethnicity. The victim testified that
his father is Puerto Rican and his mother is Italian, and he
considers himself Hispanic. No evidence was offered regarding
the race of the victim; based on his photograph, his skin color
appears to be brown.
As to the defendant's race or ethnicity, the defendant
testified that he is from the Dominican Republic but did not
discuss his racial identity. Liebel testified that the person
who struck the victim was Hispanic. Kenniston was also asked if
the person who struck the victim was Hispanic, and he responded:
"Yeah . . . . Well, I mean I don't know the classification
because . . . I have friends that are . . . black, Puerto
Rican, and they can speak two languages, so . . . just
because they are a certain color, I'm not going to say they
are Spanish or Black. . . . I really need to talk to them
to know what they are."
The defendant's written request for a cross-racial and cross-
ethnic instruction stated that he is Hispanic. On appeal, he
characterizes himself as a "dark-skinned Hispanic of Dominican
descent." Based on his photograph, his skin color appears to be
black.
The Commonwealth objected to the request and questioned
whether the identifications were truly cross-racial or cross-
ethnic, as the evidence only showed that the witnesses may have
different ethnic backgrounds. The Commonwealth also asked that
10
if a cross-racial or cross-ethnic instruction were given, it not
apply to the victim because he was also Hispanic.
The judge declined the defendant's request for an
instruction, stating that Kenniston and Liebel are of different
ethnicity from the defendant, but "[w]e are not talking about a
cross-racial identification here." The judge also stated that,
even if she were to assume that the identification was similar
to a cross-racial identification, it is "far from settled" that
such an instruction should be given, and giving such an
instruction "is hardly the standard in the courts at this
point." She acknowledged that we were considering the Report
and Recommendations of the Supreme Judicial Court Study Group on
Eyewitness Evidence (July 25, 2013) (Study Group Report),11 and
that the proposed jury instructions regarding cross-racial
identification were "very controversial" in the Superior Court.
The judge instead instructed the jury in accordance with the
then-existing model eyewitness identification instruction, based
on Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (Appendix)
(1979), as modified in Commonwealth v. Cuffie, 414 Mass. 632,
640-641 (Appendix) (1993), and Commonwealth v. Santoli, 424
11
See Supreme Judicial Court Study Group on Eyewitness
Evidence: Report and Recommendations to the Justices (July 25,
2013) (Study Group Report), available at
http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-
report-2013.pdf [http://perma.cc/WY4M-YNZN].
11
Mass. 837, 845 (1997), including the instruction regarding the
possibility of a good faith mistake. See Commonwealth v.
Pressley, 390 Mass. 617, 620 (1983). Because the defendant
objected at the close of the instructions to the absence of the
requested instruction, we review its denial for prejudicial
error. See Commonwealth v. Meas, 467 Mass. 434, 454, cert.
denied, 135 S. Ct. 150 (2014).
In Gomes, 470 Mass. at 366-367, we concluded that a
principle of eyewitness identification may be appropriate for
inclusion in a model jury instruction "where there is a near
consensus in the relevant scientific community adopting that
principle." Because it was not argued that the identifications
in that case were cross-racial, we did not address that issue,
but we included an instruction on cross-racial identification in
the provisional model jury instruction that we required to be
given, where appropriate, in trials that commence after the
issuance of that opinion. Id. at 376, 382 (Appendix). That
instruction provided that, in deciding whether a witness's
identification is accurate, a jury should consider "whether the
witness and the offender are of different races -- research has
shown that people of all races may have greater difficulty in
accurately identifying members of a different race than they do
in identifying members of their own race." Id. at 382
(Appendix). Including that instruction reflected our conclusion
12
that this principle had been adopted by a near consensus in the
relevant scientific community. Id. at 382 n.10 (citations
providing support for near consensus on cross-racial
identification). But we declined to give the new provisional
model jury instruction any retroactive application, id. at 376,
so it has no bearing on this case, which was tried one year
before the issuance of Gomes.
Under our case law at the time of trial, a judge was not
precluded "in the exercise of discretion from instructing a jury
that, in determining the weight to be given eyewitness
identification testimony, they may consider the fact of any
cross-racial identification and whether the identification by a
person of different race from the defendant may be less reliable
than identification by a person of the same race." Commonwealth
v. Hyatt, 419 Mass. 815, 819 (1995). But a defendant "was not
entitled to such an instruction." Commonwealth v. Bly, 448
Mass. 473, 496 (2007) ("While we acknowledge the significant
body of scientific literature on the problems inherent in cross-
racial identification, . . . we have never held that those
problems require a jury instruction when cross-racial
identification testimony is offered, and we decline to do so
here" [citation omitted]). Therefore, the judge did not err in
declining to read the requested instruction.
13
Although it was not error before Gomes for the judge to
decline to give a cross-racial instruction, such an instruction
must be given in trials that commence after Gomes where there is
a cross-racial identification. See Gomes, 470 Mass. at 376, 382
(Appendix). The existence of the "cross-race effect" (CRE) --
that people are generally less accurate at identifying members
of other races than they are at identifying members of their own
race -- has reached a near consensus in the relevant scientific
community and has been recognized by courts12 and scholars13
12
See Commonwealth v. Gomes, 470 Mass. 352, 382 & n.10
(Appendix) (2015) (provisional model instruction includes
instruction on cross-race effect [CRE], to be given "if witness
and offender are of different races"); State v. Guilbert, 306
Conn. 218, 237-238 (2012) (CRE accepted by "[c]ourts across the
country"); State v. Cabagbag, 127 Haw. 302, 310-311 (2012)
("Researchers have found that several variables tend to affect
the reliability of an eyewitness's identification," including
CRE); State v. Henderson, 208 N.J. 208, 299 (2011) (research
justifies giving cross-racial instruction "whenever cross-racial
identification is in issue at trial"); State v. Lawson, 352 Or.
724, 775 (2012) (noting "widespread acceptance of the [CRE] in
the scientific community").
13
See Study Group Report, supra at 134 (proposed jury
instruction stating that "people of all races and all
ethnicities may have greater difficulty in accurately
identifying members of a different race or a different
ethnicity"); National Research Council of the National
Academies, Identifying the Culprit: Assessing Eyewitness
Identification 96 (2014) (National Academies) (existence of CRE
"generally accepted" and it "occurs in both visual
discrimination and memory tasks, in laboratory and field
studies, and across a range of races, ethnicities, and ages").
See also Hourihan, Benjamin, & Liu, A Cross-Race Effect in
Metamemory: Predictions of Face Recognition Are More Accurate
for Members of Our Own Race, 1 J. Applied Research in Memory &
14
alike. We remain convinced that jurors who are asked to
evaluate the accuracy of an identification should be informed of
the CRE.14
Cognition 158, 158 (2012) ("The [CRE] . . . in face recognition
is one of the most replicated findings in cognitive and social
psychology").
14
Although there is a near consensus in the relevant
scientific community that the CRE may arise regardless of racial
prejudice, there is no near consensus regarding the explanation
for the CRE. See J.C. Brigham, L.B. Bennett, C.A. Meissner, &
T.L. Mitchell, The Influence of Race on Eyewitness Memory, in 2
Handbook of Eyewitness Psychology 267-268 (2007) (Brigham et
al.); Meissner & Brigham, Thirty Years of Investigating the Own–
Race Bias in Memory for Faces: A Meta–Analytic Review, 7
Psychol., Pub. Pol'y, & L. 3, 6-7, 21 (2001). See also National
Academies, supra at 96 (existence of CRE is "generally accepted"
but causes of it are "not fully understood"); Young, Hugenberg,
Bernstein, & Sacco, Perception and Motivation in Face
Recognition: A Critical Review of Theories of the Cross-Race
Effect, 16 Personality & Social Psychol. Rev. 116, 116 (2012)
("despite the straightforward nature of the CRE, the social
ramifications of face recognition errors, and the decades of
research devoted to the topic, isolating a primary mechanism
responsible for the effect has proven vexing").
One theory is that the CRE arises not from race per se, but
from people's general tendency to think categorically about
members of the "out group" (persons of other races) while
thinking in an individuated manner about members of the "in
group" (persons of the same race). Id. at 123. Another theory
is that less interaction and familiarity with members of other
races results in a weaker ability to distinguish between faces
of other races. Id. at 116-117. See Brigham et al., supra at
266 (studies have yielded mixed results, some showing smaller
CRE in people reporting more interracial contact, and others
finding no relationship between contact and CRE).
Prior to Gomes, the District Court issued a model
supplemental cross-racial instruction, which invited the jury to
consider whether other factors may overcome the difficulty in
making a cross-racial identification. It states in part, "For
15
We take this opportunity, however, to consider when a
cross-racial instruction should be given. In Bly, 448 Mass. at
496, we declared that it is within a judge's discretion to give
a cross-racial instruction "when warranted by the evidence," and
our provisional instruction in Gomes, 470 Mass. at 382
(Appendix), provides that the instruction should be given when
the "witness and offender are of different races." See Study
Group Report, supra at 134 (proposed supplemental cross-racial
and cross-ethnic instruction should be given "[i]f the witness
and the perpetrator are of a different race or ethnicity"). But
we have yet to discuss when the evidence warrants such an
instruction and who, if anyone, should determine whether the
witness and the person identified are of different races,
perhaps because the cross-racial character of an identification
is often not contested. See, e.g., Commonwealth v. Engram, 43
Mass. App. Ct. 804, 805 n.1 (1997) (defendant was black and at
argument "it was agreed that the identifying witnesses were
white").
example, you may conclude that the witness had sufficient
contacts with members of the defendant's race that (he) (she)
would not have greater difficulty in making a reliable
identification." Instruction 9.160 of the Model Jury
Instructions for Use in the District Court (2009). We are not
convinced that there is a near consensus in the relevant
scientific community in support of the example given in this
instruction.
16
The social science research establishing the CRE often does
not define race. See Chiroro, Tredoux, Radaelli, & Meissner,
Recognizing Faces Across Continents: The Effect of Within-Race
Variations on the Own-Race Bias in Face Recognition, 15
Psychonomic Bull. & Rev. 1089, 1091 (2008) ("Face recognition
researchers have investigated the [CRE] for almost [forty]
years, but few have attempted to provide a definition of race.
This is not surprising, since the concept of race is notoriously
unclear, with most biologists asserting that it has no
defensible definition" [emphasis in original]). Roy S. Malpass,
a leading scholar on the CRE, highlights the difficulty of
defining race in this area of research, stating, "There seems to
be no good and consistent way to refer to all the various
'races,'" and "the old racial names just don't seem to work,
especially in complex multiethnic societies." They All Look
Alike to Me, in The Undaunted Psychologist: Adventures in
Research 77 (1993) ("This problem has not been solved in a
satisfying way. We have to acknowledge it, and get on with the
inquiry about facial recognition -- even if we have to
communicate by using some not so terribly appropriate
terminology"). For example, what is the race of a person whose
grandparents on his father's side were an African-American and
an Asian-American, and on his mother's side were a Caucasian and
17
a Native American? See id. And what evidence would be
admissible to ascertain the person's race?15
In facial recognition studies, the person making the
identification is generally asked to self-identify his or her
race, and that self-identification is accepted as the person's
race for purposes of the study;16 the race of the person who is
15
We shall not return to the days where a single drop of
"colored" blood defined a person as an African-American, and the
law attempted to ascertain a person's race by tracing his or her
ancestry. Johnson, The Re-Emergence of Race as a Biological
Category: The Societal Implications -- Reaffirmation of Race,
94 Iowa L. Rev. 1547, 1559-1560 (2009) ("Although not predicated
on any currently acceptable scientific basis, the 'one drop of
blood' rule represented the law of the land and served as a
vehicle to classify individuals by race and to establish whites
and whiteness as the dominant racial category"). See Hickman,
The Devil and the One Drop Rule: Racial Categories, African
Americans, and the U.S. Census, 95 Mich. L. Rev. 1161, 1227
(1997) (in cases that adjudicated whether someone was black
under one drop of blood rule, party with burden of proof often
undertook something akin to a "human title search," tracing his
or her ancestry back several generations). Cf. Plessy v.
Ferguson, 163 U.S. 537, 540-542 (1896) (Plessy was ordered by
conductor to vacate railway carriage for whites and to move to
carriage for "colored race" because he was seven-eighths
Caucasian and one-eighth "African blood").
16
See, e.g., Gross, Face Recognition and Own-Ethnicity Bias
in Black, East/Southeast Asian, Hispanic, and White Children, 5
Asian Am. J. Psychol. 181, 183 (2014) (Face Recognition) (where
study participants were children, "[c]hildren's parents reported
their child's ethnicity on a parental consent form"); Hourihan,
Fraundorf, & Benjamin, Same Faces, Different Labels: Generating
the Cross-Race Effect in Face Memory with Social Category
Information, 41 Memory Cognition 1021, 1023 (2013) (participants
"self-identified" as African-American or Hispanic on
demographics questionnaire); MacLin & Malpass, Racial
Categorization of Faces: The Ambiguous Race Face Effect, 7
Psychol., Pub. Pol'y, & L. 98, 105 (2001) (participants self-
18
identified is generally determined based on the physical
appearance of the person's face, including but not limited to
skin color.17 Although social scientists "refer to the
phenomenon as the [CRE] . . . the operative factor is perceived
facial physiognomic characteristics, regardless of racial
classification per se." Wells & Olson, The Other-Race Effect in
Eyewitness Identification: What Do We Do About It?, 7 Psychol.,
Pub. Pol'y, & L. 230, 234 (2001). See McKone, Stokes, Liu,
Cohan, Fiorentini, Pidcock, Yovel, Broughton, & Pelleg, A Robust
Method of Measuring Other-Race and Other-Ethnicity Effects: The
Cambridge Face Memory Test Format, 7 PLOS ONE, no. 10, Oct.
2012, at 1 (McKone) ("we use the term race of a face to refer to
the relatively large physical differences in faces with ancestry
from different major world regions, such as Europe, Asia, or
Africa" [emphasis in original]).18 In short, when we speak of
identified as Hispanic by self-report while signing in for
experiment).
17
See, e.g., Face Recognition, supra at 184 (author and
four undergraduate students selected photographs of Asian,
black, Hispanic, and white persons "that appeared to be good
exemplars of the four ethnicities"); Wilson & Hugenberg, When
Under Threat, We All Look the Same: Distinctiveness Threat
Induces Ingroup Homogeneity in Face Memory, 46 J. Experimental
Social Psychol. 1004, 1005 (Wilson & Hugenberg) (2010)
(photographs were "pretested to ensure that they were
consistently categorized as 'White' or 'Hispanic'").
18
See S.M. Smith & V. Stinson, Does Race Matter? Exploring
the Cross-Race Effect in Eyewitness Identification, in Critical
19
cross-racial identification in the context of eyewitness
identification, we mean that based on facial appearance, the
person who made the identification is likely to have perceived
the person identified to be of a different race.
Because differences in race based on facial appearance lie
in the eye of the beholder, we shall not ask judges to determine
whether a reasonable juror would perceive the identification to
be cross-racial. Rather, we shall direct that a cross-racial
instruction be given unless all parties agree that there was no
cross-racial identification. This obviates any need for the
judge to decide whether the identification was actually cross-
racial, or whether jurors might perceive it to be. If the jury
receive such an instruction but do not think the identification
was cross-racial, they may simply treat the instruction as
irrelevant to their deliberations. Consequently, we amend our
provisional instruction in Gomes to the extent that, in criminal
trials that commence after the issuance of this opinion, the
Race Realism: Intersections of Psychology, Race, and Law 106
(2008) ("operationally defining race is very difficult in [the
eyewitness identification] context, and it may be more useful to
consider perceived facial variability instead"); Sporer, Special
Theme: The Other-Race Effect and Contemporary Criminal Justice:
Eyewitness Identification and Jury Decision Making: Eyewitness
Identification: Recognizing Faces of Other Ethnic Groups: An
Integration of Theories, 7 Psychol., Pub. Pol'y, & L. 36, 36 n.1
(2001) ("the term race is only used for differences in
physiognomy").
20
following instruction should be included when giving the model
eyewitness identification instruction, unless all parties agree
to its omission:
"If the witness and the person identified appear to be of
different races, you should consider that people may have
greater difficulty in accurately identifying someone of a
different race than someone of their own race."19
We also take this opportunity to consider whether a cross-
ethnic instruction should be included with the cross-racial
instruction. Ethnicity is generally distinct from race; for
instance, a person who identifies as Hispanic may be of any
race.20 Yet, in facial recognition studies, the terms "race" and
19
The model instruction announced in Gomes, 470 Mass. at
376, was made provisional "to allow for public comment and
possible future revision," and the Supreme Judicial Court Rules
Committee solicited public comments on the provisional
instruction through May 29, 2015. See Notice Inviting Comment
on Provisional Jury Instruction Regarding Eyewitness Evidence,
http://www.mass.gov/courts/case-legal-res/rules-of-court/rule-
changes-invitations-comment/invitation-to-comment-provisional-
jury-instructions-eyewitness-identification.html
[http://perma.cc/8LBP-YJX7]. The cross-racial instruction
announced today may again be amended once we release a revised
model instruction. Even when our model instruction is no longer
provisional, it is still subject to revision as the research
regarding eyewitness identification evolves. See Gomes, supra
at 368 ("we acknowledge the possibility that, as the science
evolves, we may need to revise our new model instruction's
description of a principle").
20
See State v. Romero, 191 N.J. 59, 68 (2007), quoting
United States Census Bureau, Overview of Race and Hispanic
Origin: Census 2000 Brief 1-2 ("Hispanics may be of any race").
See also Gross, Own-Ethnicity Bias in the Recognition of Black,
East Asian, Hispanic and White Faces, 31 Basic & Applied Social
21
"ethnicity" are often conflated and used interchangeably; when
they are defined separately, ethnicity may refer to "the smaller
physical differences that exist within a race, such as with
ancestry from Norway versus Greece within Europe, or China
versus Japan within Asia, or Nigeria versus Ethiopia within
Africa." McKone, supra at 1. From our review of the social
science, we are aware of studies that support the conclusion
that people are better at recognizing the faces of persons of
the same ethnicity than a different ethnicity.21 But there is
Psychol. 128, 129 (2009) (Own-Ethnicity Bias) ("Within the
community that identifies itself as Hispanic, there is much
cultural and physical diversity. Nonetheless, within this
population there are those who present distinctive physical
profiles, having mixed Spanish and Central and South American
Indian heritage"). Cf. Reyes, The 2010 Census and Latinos:
What Race Are We?, Christian Sci. Monitor, Apr. 6, 2010,
available at
http://www.csmonitor.com/Commentary/Opinion/2010/0406/The-2010-
Census-and-Latinos-What-race-are-we [http://perma.cc/8SLW-P9N9]
(opining that "overwhelming majority of Hispanics are a
combination of Spanish and indigenous peoples" so race option of
"multiracial" on census may better suit many Hispanic people).
21
See Own-Ethnicity Bias, supra at 132 (study revealed that
white participants recognized white faces better than they
recognized Hispanic, Asian, and black faces, but found no
significant difference between Hispanic participants'
recognition of white faces and Hispanic faces); Platz & Hosch,
Cross-Racial/Ethnic Eyewitness Identification: A Field Study,
J. Applied Social Psychol. 972, 979, 981 (1988) (Mexican-
American and white convenience store clerks better recognized
customers of their own group than customers of other group);
Wilson & Hugenberg, supra at 1006-1008 (white undergraduate
students showed CRE when identifying white and Hispanic faces in
control group of experiment studying own-race identifications).
See also Chiroro, Tredoux, Radaelli, & Meissner, Recognizing
22
not yet a near consensus in the relevant scientific community
that people are generally less accurate at recognizing the face
of someone of a different ethnicity than the face of someone of
their own ethnicity. See American Bar Association Policy 104D:
Cross-Racial Identification, 37 Sw. U. L. Rev. 917, 927 (2008)
("The research on cross-ethnicity identification is less clear-
cut"); State v. Romero, 191 N.J. 59, 71 (N.J. 2007) ("The most
that can be said is that research in the area has begun"). See
also McKone, Hall, Pidcock, Palermo, Wilkinson, Rivolta, Yovel,
Davis, & O'Connor, Face Ethnicity and Measurement Reliability
Affect Face Recognition Performance in Developmental
Prosopagonosia: Evidence from the Cambridge Face Memory Test --
Australian, 28 Cognitive Neuropsychol. 109, 135 (2011) ("The
existence of other-race effects on face memory is well
Faces Across Continents: The Effect of Within-Race Variations
on the Own-Race Bias in Face Recognition, 15 Psychonomic Bull. &
Rev. 1089, 1091 (2008) (white South African participants better
recognized white South African faces than white North American
faces, and black South African participants better recognized
black South African faces than black North American faces). See
generally Marcon, Meissner, & Malpass, Cross-Race Effect in
Eyewitness Identification, in Encyclopedia of Psychology & Law
173 (2008) ("Studies have evidenced the CRE across a wide
variety of ethnic and racial groups. While the original
research in this area dealt primarily with Whites and Blacks in
the United States, more recent studies have included samples
from Canada, Great Britain, Germany, Turkey, South Africa, and
parts of the Middle East and Asia. Whites, Blacks, Asians,
Hispanics, Natives/Indians, Jews, and Arabs, among others, have
been included in these studies with each demonstrating a CRE in
face identification performance").
23
established. However, the question of whether . . . ethnicity
of faces within a race influences face recognition has received
less attention"). In Romero, supra at 66, a non-Hispanic
Caucasian male identified a Hispanic male that the trial court
determined was also Caucasian. The New Jersey Supreme Court
investigated the social science research and concluded that
"[s]ocial science research does not tie identification
unreliability directly to ethnic differences in the same way
that racial differences can affect identification reliability."
Id. at 63.
For now, we leave the decision to add ethnicity to the
cross-racial instruction in the judge's sound discretion.22
Where the persons involved in the identification self-identify
as being of the same race but different ethnicity, and look as
categorically different as people of different races, a cross-
ethnic instruction will generally be appropriate, because the
research suggests that cross-ethnic facial recognition in these
circumstances has reliability issues similar to the CRE. See
note 21, supra. Ethnicity should also generally be included in
the instruction where, for example, a non-Hispanic eyewitness
22
The instruction would read: "If the witness and the
person identified appear to be of different races or
ethnicities, you should consider that people may have greater
difficulty in accurately identifying someone of a different race
or ethnicity than someone of their own race or ethnicity."
24
identifies a defendant who is Hispanic and looks multiracial,
because the jury may not know whether to attribute the
difference in appearance to race or ethnicity or both; an
instruction that only references race might inadvertently lead
the jury to ignore facial characteristics that are relevant to
the CRE.23 But the addition of ethnicity may not be appropriate
where, for example, the witness and the person identified appear
to be of the same race, but one is Australian and the other
North American.24 Until the social science reaches a near
consensus, we will not require the inclusion of ethnicity in the
23
In contrast with our earlier case law regarding cross-
racial identifications, where we effectively declared that it
was never an abuse of discretion to decline to give such an
instruction, see Commonwealth v. Bly, 448 Mass. 473, 496 (2007),
we leave open the possibility that, under these or comparable
circumstances, it might be an abuse of discretion to decline a
request to add ethnicity to the cross-racial identification
instruction.
24
See McKone, Stokes, Liu, Cohan, Fiorentini, Pidcock,
Yovel, Broughton, & Pelleg, A Robust Method of Measuring Other-
Race and Other-Ethnicity Effects: The Cambridge Face Memory
Test Format, 7 PLOS ONE, no. 10, Oct. 2012, at 3-5 (2012) (white
North American participants showed nonsignificant CRE toward
white Australian faces compared with white North American
faces). See also Sporer & Horry, Recognizing Faces from Ethnic
In-Groups and Out-Groups: Importance of Outer Face Features and
Effects of Retention Interval, 25 Applied Cognitive Psychol.
424, 426-427 (2010) (Turkish participants in study did not
recognize Turkish faces significantly better than white German
faces); Luce, The Role of Experience in Inter-Racial
Recognition, 1 Personality & Social Psychol. Bull. 39, 40 (1974)
(Japanese participants recognized Japanese faces only slightly
better than Chinese faces, and Chinese participants recognized
Chinese faces only slightly better than Japanese faces).
25
model instruction but will leave its inclusion to the discretion
of the judge based on the circumstances of the identification.
2. Admission of in-court eyewitness identifications. The
first time that the victim, Kenniston, and Liebel made a formal
identification of the defendant was in court during their
testimony. The defendant now challenges the admission of these
in-court identifications. Because there was no motion to
suppress or objection at trial, "the error, if any, is reviewed
for a substantial risk of a miscarriage of justice."
Commonwealth v. Brown, 451 Mass. 200, 207 (2008).
We recently announced the following prospective rule in
Commonwealth v. Crayton, 470 Mass. 228, 241-242 (2014), to be
applied in trials that commence after the issuance of the
opinion on December 17, 2014: "Where an eyewitness has not
participated before trial in an identification procedure, we
shall treat the in-court identification as an in-court showup,
and shall admit it in evidence only where there is 'good reason'
for its admission." See Commonwealth v. Collins, 470 Mass. 255,
265 (2014) (we shall prospectively apply new rule in Crayton
where, before trial, witness made "something less than an
unequivocal positive identification" during nonsuggestive
procedure). Because the defendant's trial took place before the
issuance of Crayton and Collins, those prospective rules do not
apply in this case. Instead, we evaluate the alleged errors
26
under the existing law at the time of trial. See Crayton, supra
at 245 (no abuse of discretion in admission of in-court
identifications where doing so was "in accord with the case law
existing at the time of [the judge's] decision"). See also
Collins, supra at 261 (defense counsel not ineffective for
failing to object to admission of in-court identification when
its admission "conformed to our case law").
Prior to Crayton, an in-court identification was excluded
if, in the totality of the circumstances, it was "tainted by an
out-of-court confrontation . . . that [was] 'so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.'" Crayton, supra at 238, quoting
Commonwealth v. Carr, 464 Mass. 855, 877 (2013). An in-court
identification was admissible in the absence of any prior out-
of-court confrontation. Crayton, supra ("where there had been
no out-of-court identification to taint the in-court
identification, the judge's admission of the in-court
identification conformed to our case law"). Because the
defendant does not assert that any out-of-court confrontation
took place involving Liebel, there was no error in the admission
of his in-court identification.
We also find no error in the admission of the in-court
identification made by Kenniston. Kenniston saw the defendant
in police custody near the crime scene when he drove the victim
27
to the hospital, and a police officer directing traffic said to
Kenniston, "Yeah, we got [the assailant]. He's right over
there." But a few moments before this exchange, from close
range and in a well-lit area, Kenniston not only observed the
defendant punch the victim but also saw him flee and get chased,
tackled, and arrested. Under these circumstances, the officer's
confirmation that the police arrested the assailant told
Kenniston nothing more than what he had seen with his own eyes,
and was not so impermissibly suggestive as to create a
substantial likelihood of irreparable misidentification.
We also find no error in the admission of the in-court
identification made by the victim. The victim testified that
between the original event and the trial, he saw a photograph of
the defendant in a newspaper given to him by police. We
recognize that it might be unnecessarily suggestive for police
to provide a newspaper article about the relevant crime to a
witness and ask whether the person shown in the newspaper
photograph is the assailant. Compare Commonwealth v. Jules, 464
Mass. 478, 489-490 (2013), quoting Commonwealth v. Horton, 434
Mass. 823, 835 (2001) (in absence of police manipulation or
prompting, "simple exposure to the media is not sufficient
ground to suppress an identification [on constitutional
grounds]"). But the level of suggestiveness ultimately depends
on the context of the confrontation. See Commonwealth v.
28
Cavitt, 460 Mass. 617, 632 (2011), quoting Commonwealth v.
Miles, 420 Mass. 67, 77 (1995) (unnecessarily suggestive
procedure must be proved "in light of the totality of the
circumstances"). Here, there is no evidence in the record
detailing the circumstances of the victim's viewing of the
newspaper photograph, such as what the police said to him, or
how long after the initial event he saw it. It was the
defendant's burden to prove by a preponderance of the evidence
that any out-of-court confrontation with the victim was so
impermissibly suggestive as to create a substantial likelihood
of irreparable misidentification. The defendant has failed to
satisfy that burden, especially where the victim, after the
first "sucker punch" blinded him in one eye, saw the assailant
stand within "a foot or two" of him and punch him once or twice
more in the face.25
25
The defendant also argues that the admission of the
eyewitnesses' statements indicating the level of certainty in
their identifications was erroneous. There was no objection at
trial, and no error in their admission under existing law. See
Commonwealth v. Cruz, 445 Mass. 589, 596 (2005) (determination
of weight to give to identification and "any statements of
certainty or uncertainty" is left to jury); Commonwealth v.
Watkins, 63 Mass. App. Ct. 69, 74-75 (2005) (we have "not
precluded witness testimony regarding certainty, or prohibited
counsel from probing the subject or arguing about it"). In this
case, we decline to consider the defendant's proposal to adopt
the Study Group's recommendation to limit the admissibility of
certainty testimony, see Study Group, supra at 113, where there
was no objection to its admission at trial and the relevant
29
3. Consciousness of guilt instruction. The judge
instructed the jury regarding consciousness of guilt based on
the evidence that the assailant ran away after punching the
victim and discarded the brass knuckles.26 Because the
consciousness of guilt instruction was given over the
identifications were admissible under the law prior to
Commonwealth v. Crayton, 470 Mass. 228 (2014).
26
The judge read the following instruction:
"There has been evidence in this case alleging that
[the defendant] may have fled when he was about to be
arrested for one of the offenses for which he is now on
trial and/or that he may have intentionally tried to
conceal . . . what is alleged to be a dangerous weapon in
this case by supposedly discarding it, throwing it away.
"If the Commonwealth has proved one or both of these
actions, you may take into consideration whether such
action indicates feelings of guilt by [the defendant], and
whether in turn such feelings of guilt might tend to show
actual guilt with respect to the charges under
consideration.
"You are not required to draw such inferences and you
should not do so unless they appear to be reasonable in
light of all the circumstances of this case. If you decide
that such inferences are reasonable, it will be up to you
to decide how much importance to give it or them, but
always keep in mind that there may be numerous reasons why
an innocent person might do such things. Such conduct does
not necessarily express feelings of guilt.
"Please also always bear in mind that persons having
feelings of guilt does not necessarily mean they are
guilty, for such feelings are often times found in innocent
people. Also, even if you do draw an inference of guilt
from a determination of consciousness of guilt, you may not
base a conviction solely on evidence of consciousness of
guilt. That alone will not support a conviction."
30
defendant's objection, we review for prejudicial error. See
Commonwealth v. Stuckich, 450 Mass. 449, 452-453 (2008).
An instruction on consciousness of guilt is appropriate
where the jury may draw an inference of guilt "'from evidence of
flight, concealment, or similar acts,' such as false statements
to the police, destruction or concealment of evidence, or
bribing or threatening a witness." Commonwealth v. Morris, 465
Mass. 733, 737-738 (2013), quoting Stuckich, supra at 453. A
defendant's flight is often considered "classic evidence" of
consciousness of guilt. Commonwealth v. Vick, 454 Mass. 418,
426 (2009). The inference of guilt may be drawn in part from
the premise that a person flees "because he feels guilt
concerning that act" and the person feels guilt concerning the
act because he "committed that act." Commonwealth v. Toney, 385
Mass. 575, 584 (1982).
In contrast, a consciousness of guilt instruction regarding
flight is generally inappropriate where there is no dispute that
the crime was committed by the person fleeing from the crime
scene, and the only contested issue is the identification of the
defendant as the fleeing offender. See Commonwealth v. Pina,
430 Mass. 266, 272 (1999), citing Commonwealth v. Groce, 25
Mass. App. Ct. 327, 331-332 (1988). Under these circumstances,
if the jury finds that it was the defendant who fled, the jury
will find him guilty, not because flight evidences consciousness
31
of guilt but because flight reveals the defendant to be the
assailant. See Vick, 454 Mass. at 439 (Botsford, J., concurring
in part and dissenting in part) ("for the jury to consider the
evidence that the assailant 'fled' from the immediate scene of
the shooting as consciousness of guilt on the defendant's part,
they would need first to conclude, based on separate evidence,
that the defendant was in fact the shooter; otherwise, they
would have no basis on which to ascribe the act of fleeing to
the defendant at all"); Groce, supra at 331-332 (consciousness
of guilt instruction was "inapposite" where "[t]here [was] no
dispute that the same individual committed the offense and fled
from the scene"). In these circumstances, a consciousness of
guilt instruction would provide no relevant guidance to the jury
but would pose the risk that the jury might think the judge was
suggesting that the defendant was the person who fled and
therefore the person who committed the crime. Groce, supra at
332 (judge who gave consciousness of guilt instruction "may well
have conveyed the notion to the jury that he believed that it
was the defendant who fled and, thus, that the victim's
identification testimony was accurate"). Where, as here, the
only live issue at trial was identification and it was plain
that the person who fled was the assailant, the risk that a
consciousness of guilt instruction might imply that the
defendant was the person who fled outweighed the negligible
32
benefit of instructing the jury that flight may be evidence of
consciousness of guilt. Therefore, the judge erred in giving
the instruction.
The error, however, was not prejudicial for two reasons.
First, the evidence of the defendant's guilt in this case was
overwhelming. Although the defendant contends the case rests
solely on three unreliable eyewitness identifications, the most
compelling evidence of guilt comes from Kenniston's testimony
that the person he saw "sucker punch" the victim was the same
person whom he saw flee and be tackled by the police. This
testimony did not rest on facial recognition; it would have
mattered little if Kenniston had never seen the assailant's
face. Where the defendant was the only person tackled by the
police, and Kenniston saw that it was the assailant who was
tackled, Kenniston's testimony provided compelling evidence of
the defendant's guilt.27 The eyewitness identifications of
Liebel and the victim corroborated Kenniston's testimony.
Liebel's testimony was stronger because, unlike the victim, he
had not been blinded by a punch and saw the defendant menacingly
27
The only evidence elicited on cross-examination of
Kenniston that put in question whether he saw the assailant
being arrested was that Kenniston admitted that, while driving
the victim to the hospital, he asked a police officer, "Did you
get the guy that did it?" and the officer responded, "Yeah, we
got him. He's right over there." However, Kenniston had
earlier testified that the officer asked him, in essence, if the
defendant "was him or not," and Kenniston said, "Yeah, right."
33
approach within a few feet of him after having beaten the
victim. Although Liebel lost sight of the defendant after
watching him run, Liebel reported the direction where the
defendant fled and the defendant was soon tackled, arrested, and
brought back to where Liebel was holding Juan. There was no
formal show-up identification, but Liebel saw that the defendant
was the person the police had arrested, and he did not tell his
fellow officers that they arrested the wrong man. The
defendant's testimony is also so inconsistent with all the other
evidence in the case and so improbable that it "adds to our
confidence in the jury's verdict." Commonwealth v. Rosado, 428
Mass. 76, 81 (1998) ("sheer implausibility of defendant's own
alibi" supported conclusion of no prejudicial error). In view
of the overwhelming weight of the evidence against the
defendant, we are confident that the jury's verdict "was not
substantially swayed by the error" in giving the consciousness
of guilt instruction. See Commonwealth v. Flebotte, 417 Mass.
348, 353 (1994).
Second, the risk that the jury understood the judge to be
suggesting that the defendant was the person who fled was small.
The judge began her instruction by saying that "[t]here has been
evidence in this case alleging that [the defendant] may have
fled when he was about to be arrested . . . and/or that he may
have intentionally tried to conceal . . . what is alleged to be
34
a dangerous weapon." The inclusion of the word "alleging" made
clear that the jury needed to evaluate the quality of that
evidence, and that the judge did not intend to suggest that the
evidence should be credited. Moreover, the judge gave the
consciousness of guilt instruction immediately following the
eyewitness identification instruction, in which the judge
emphasized several times that the Commonwealth bears the burden
of proving the defendant's identity beyond a reasonable doubt.
See Pina, 430 Mass. at 272 (no prejudicial error in giving
consciousness of guilt instruction where judge emphasized that
prosecutor bore burden of proving identity of defendant as
perpetrator). Therefore, giving the consciousness of guilt
instruction did not constitute prejudicial error.
Conclusion. The judgments of conviction against the
defendant are affirmed.
So ordered.
Commonwealth v. Bastaldo
Court: Massachusetts Supreme Judicial Court
Date filed: 2015-06-25
Citations: 472 Mass. 16
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