Commonwealth v. Gomes (Lawyers Weekly No. 10-022-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12290 COMMONWEALTH vs. JEREMY D. GOMES. February 5, 2018. Practice, Criminal, Assistance of counsel, Request for jury instructions. Identification. Evidence, Identification. In 2015, we affirmed Jeremy D. Gomes’s convictions of mayhem and breaking and entering a vehicle in the nighttime with intent to commit a felony. Commonwealth v. Gomes, 470 Mass. 352, 378 (2015). At trial, “[t]he defendant requested that the judge provide a jury instruction regarding eyewitness identification that essentially mirrored a model instruction that had become effective in New Jersey approximately one week before the defendant’s trial commenced.” Id. at 357 & n.10, citing State v. Henderson, 208 N.J. 208, 219, 228-229 (2011). The judge instead gave the model jury instruction regarding eyewitness identification that we adopted in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979) (Appendix). Gomes, supra at 353. We concluded that the judge did not abuse his discretion in doing so where the defendant failed to furnish “any expert testimony, scholarly articles, or treatises that would reasonably have enabled the judge to determine whether the principles in the defendant’s proposed instruction were ‘so generally accepted’ that it would be appropriate to instruct the jury regarding them . . . and where there was an instruction approved by this court that was not erroneous but, at worst, inadequate and incomplete.” Id. at 359-360. In that opinion, however, “[a]fter reviewing the scholarly research, analyses by other courts, amici submissions, and the [Report and Recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence], we conclude[d] that there are various principles regarding eyewitness identification for which there is a near consensus in the relevant scientific community and that it is appropriate to revise the Rodriguez instruction to include them.” Id. at 367. We therefore proposed a provisional model eyewitness identification instruction to be given in trials commencing after the date of the Gomes opinion. Id. at 376 (new instruction intended to have no retroactive application). The defendant subsequently moved for a new trial, arguing that he was deprived of the effective assistance of counsel because his trial counsel failed to furnish the judge with the expert testimony, scholarly articles, or treatises that would reasonably have enabled the judge to determine that the principles in the defendant’s proposed instruction were generally accepted in the relevant scientific community. The motion […]