Commonwealth v. Bastaldo (Lawyers Weekly No. 10-103-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-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. 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 “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 […]