Commonwealth v. Bastaldo
| Decision Date | 25 June 2015 |
| Docket Number | SJC–11763. |
| Citation | 32 N.E.3d 873,472 Mass. 16 |
| Parties | COMMONWEALTH v. Elvin BASTALDO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
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.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
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
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 “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, 22 N.E.3d 897 (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 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, 21 N.E.3d 157 (2014)
, and Commonwealth v. Collins, 470 Mass. 255, 21 N.E.3d 528 (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 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 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 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 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:
As to the race or ethnicity of the eyewitnesses, Kenniston and Liebel testified that they are Caucasian; no evidence was 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:
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 if a cross-racial or cross-ethnic instruction were given, it not apply to the victim...
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