Commonwealth v. Bastaldo, 472 Mass. 16

Background

At a Springfield nightclub in September 2012, defendant Elvin Bastaldo allegedly struck the victim (Juan Benito) with brass knuckles, blinding him in one eye, while a police officer (Liebel) was arresting the defendant's brother, Juan.
Three eyewitnesses (the victim, Officer Liebel, and club employee Ronald Kenniston) made their first formal identifications of the defendant in court at trial; no prior formal out-of-court show-up or lineup was used.
The defendant and his brother were tried together; defendant was convicted of mayhem and resisting arrest and sentenced to concurrent terms.
At trial the defense requested a cross-racial and cross-ethnic eyewitness-identification jury instruction (defendant described as dark-skinned Hispanic/Dominican; two witnesses described as Caucasian or of different ethnicity); the judge denied the request and instead read the then-standard model eyewitness-identification instruction.
The defendant also objected to an instruction on consciousness of guilt (flight and discarding a weapon); the judge gave the instruction over objection.
On appeal the Supreme Judicial Court considered (1) denial of cross-racial/cross-ethnic instruction, (2) admission of in-court identifications that were the witnesses’ first formal IDs, and (3) the consciousness-of-guilt instruction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial judge abused discretion by denying cross-racial and cross-ethnic ID instruction	Commonwealth: evidence did not establish a cross-racial ID and instruction was not required under precedent at time of trial	Bastaldo: witnesses were of different race/ethnicity; studies show cross-race effect (CRE) and jury should be instructed	No abuse of discretion given governing law at trial date; but court clarifies that after this opinion a cross-racial instruction must be included with the model eyewitness instruction unless parties agree no cross-racial ID occurred; cross-ethnic instruction left to judge’s discretion in appropriate cases
Whether admission of in-court eyewitness identifications (first formal IDs) created substantial risk of miscarriage of justice	Commonwealth: admissible under existing case law because no impermissibly suggestive prior out-of-court confrontation tainted in-court IDs	Bastaldo: in-court IDs were effectively suggestive show-ups and should have been excluded or suppressed	No substantial risk of miscarriage of justice under precedent in effect at trial; admissions were consistent with pre-Crayton law and facts did not show suggestive taint sufficient to exclude
Whether consciousness-of-guilt instruction (flight, discarding brass knuckles) was improper	Commonwealth: instruction permissible where evidence of flight/disposal exists	Bastaldo: instruction risked implying defendant was the fleeing assailant when identity was the principal contested issue	Trial judge erred in giving the instruction (inappropriate where identification is the central disputed issue), but error was harmless given overwhelming evidence and limiting language in charge
Whether errors required new trial	Commonwealth: any instructional error harmless; identifications admissible; no new trial warranted	Bastaldo: cumulative errors warrant new trial	Affirmed convictions; errors either not present under prior law or non-prejudicial in context of overwhelming evidence

Key Cases Cited

Commonwealth v. Gomes, 470 Mass. 352 (provisional model eyewitness-identification instruction recognizing cross-race effect)
Commonwealth v. Crayton, 470 Mass. 228 (prospective rule treating first-time in-court IDs as in-court showups requiring "good reason")
Commonwealth v. Collins, 470 Mass. 255 (applied Crayton prospectively regarding in-court IDs)
Commonwealth v. Bly, 448 Mass. 473 (discretionary history on cross-racial instruction prior to Gomes)
Commonwealth v. Rodriguez, 378 Mass. 296 (baseline model eyewitness-ID instruction foundation)
Commonwealth v. Cuffie, 414 Mass. 632 (modification of eyewitness-ID instructions)
Commonwealth v. Santoli, 424 Mass. 837 (eyewitness-identification instruction authority)
Commonwealth v. Meas, 467 Mass. 434 (preservation and review standard for instructional claims)
Commonwealth v. Carr, 464 Mass. 855 (standard for excluding an ID as impermissibly suggestive)
Commonwealth v. Jules, 464 Mass. 478 (media exposure and identification admissibility)
Commonwealth v. Horton, 434 Mass. 823 (context for suppression of suggestive ID procedures)
Commonwealth v. Cavitt, 460 Mass. 617 (totality-of-circumstances review for suggestive confrontations)
Commonwealth v. Miles, 420 Mass. 67 (framework for assessing suggestiveness)
Commonwealth v. Pina, 430 Mass. 266 (inappropriateness of consciousness-of-guilt instruction when identity is the central dispute)
Commonwealth v. Groce, 25 Mass. App. Ct. 327 (similar rule on consciousness-of-guilt instruction risk when identity contested)
Commonwealth v. Vick, 454 Mass. 418 (flight as classic evidence of consciousness of guilt; cautions noted)
Commonwealth v. Stuckich, 450 Mass. 449 (preservation and prejudice standard for consciousness-of-guilt instruction)
Commonwealth v. Morris, 465 Mass. 733 (consciousness-of-guilt instruction appropriate where acts like flight/concealment are in evidence)
Commonwealth v. Rosado, 428 Mass. 76 (weight of evidence and harmless-error analysis)
Commonwealth v. Flebotte, 417 Mass. 348 (harmless error standard for instructional error)