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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.
