Supreme Judicial Court of Massachusetts, Berkshire
Argued: September 2, 2014.
Indictments found and returned in the Superior Court Department on October 24, 2011.
The cases were tried before by John A. Agostini, J.
The Supreme Judicial Court granted an application for direct appellate review.
John Fennel, Committee for Public Counsel Services, for the defendant.
John Bossé , Assistant District Attorney, for the Commonwealth.
The following submitted briefs for amici curiae.
Daniel F. Conley, District Attorney, & Cailin M. Campbell, Assistant District Attorney, for District Attorney for the Suffolk District.
Lisa J. Steele for Massachusetts Association of Criminal Defense Lawyers.
David W. Ogden, Daniel S. Volchok, Francesco Valentini, & Nathalie F.P. Gilfoyle, of the District of Columbia, & John C. Polley for American Psychological Association & another.
M. Chris Fabricant & Karen Newirth, of New York, Joshua D. Rogaczewski & Johnny H. Walker, of the District of Columbia, & Kevin M. Bolan for the Innocence Network.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[22 N.E.3d 899] Gants, C.J.
In the early morning of September 10, 2011, the defendant slashed the face of the victim, Zachary Sevigny, with a box cutter while the victim was sitting in the driver's seat of his vehicle. A Superior Court jury found the defendant guilty of mayhem, in violation of G. L. c. 265, § 14; assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A ( b ); and breaking and entering a [22 N.E.3d 900] vehicle in the nighttime with the intent to commit a felony, in violation of G. L. c. 266, § 16. On appeal, the defendant claims that the judge erred by giving the model jury instruction regarding eyewitness identification that we adopted in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311, 391 N.E.2d 889 (Appendix) (1979), rather than the instruction he requested, which would have informed the jury about various scientific principles regarding eyewitness identification. We conclude that the judge did not err by declining to instruct the jury about these principles where the defendant offered no expert testimony, scholarly articles, or treatises that established that these principles were " so generally accepted that ... a standard jury instruction stating [those principles] would be appropriate." Commonwealth
v. Santoli, 424 Mass. 837, 845, 680 N.E.2d 1116 (1997), citing Commonwealth
v. Hyatt, 419 Mass. 815, 818-819, 647 N.E.2d 1168 (1995). Therefore, we affirm the convictions of mayhem and of breaking and entering.
However, now that we have the benefit of the Report and Recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence (Study Group Report), and the comments in response to it, we conclude that there are scientific principles regarding eyewitness identification that are " so generally accepted" that it is appropriate in the future to instruct juries regarding these principles so that they may apply the principles in their evaluation of eyewitness identification evidence. We include as an Appendix to this opinion a provisional jury instruction regarding eyewitness identification evidence, and we invite comments regarding its content and clarity before we declare it a model instruction. [22 N.E.3d 901] This provisional instruction should be given, where appropriate, in trials that commence after issuance of this opinion until a model instruction is issued.
At approximately 1:30 a.m. on September 10, 2011, the defendant, who appeared intoxicated, walked into a gasoline station convenience store in Pittsfield, bumped into a customer, Lindsay Holtzman, and asked the employee who was working the cash register, Jordan Wilson, for a box of matches. Wilson asked the defendant to apologize to Holtzman. In response, the defendant cursed and stared at Wilson, and challenged him to a fight. Wilson laughed and gave the defendant a box of matches. The defendant left the store, but continued to yell at
Wilson to meet him outside to fight.
When the defendant left the store, the victim and his friend, Gerald Mortensen, were sitting in the victim's automobile, which was parked in a well-lit portion of the store's parking lot, approximately ten to fifteen feet from the front door of the store. The victim was in the driver's seat with the window down. After the victim and the defendant made eye contact, the defendant approached the vehicle and said to the victim, " What the fuck are you looking at, tough guy?" The victim responded, " I'm not looking at anything." The defendant then pulled a box cutter from his back pocket, reached inside the vehicle with his left arm, and slashed the victim with the blade behind the victim's ear and down his face.
Mortensen, who was sitting on the passenger's side, ran inside the store, said that his friend had been cut, and told a store clerk to call for help. Mortensen and Holtzman then left the store and watched as the defendant walked backwards toward a corner of the parking lot, still staring at the victim. The victim was taken to a hospital where he received approximately thirty stitches.
On September 15, Wilson went to the Pittsfield police station to meet with Detective Timothy Koenig. Wilson said that he had seen the person who injured the victim before and could identify him. Detective Koenig created a pool of 975 archived photographs that fit Wilson's description of the person. Wilson used a computer, which displayed twelve photographs per page, to look through the pool. He eventually selected the defendant's photograph. When he made the identification, he reported that he was " 110 per cent positive."
Detective Koenig then created a simultaneous array containing eight photographs, one of which depicted the defendant, and presented the array that same day to Mortensen and the victim separately. Mortensen [22 N.E.3d 902] stated that none of the photographs
showed the assailant. The victim said that he did not think the assailant " [wa]s anyone in these photos," but added that if he had to choose somebody, it would be the man with a chin similar to that of the assailant; that man was the defendant. Holtzman did not view a photographic array, although Detective Koenig attempted to reach her by telephone more than once to do so.
On September 18, Holtzman, Mortensen, and the victim were driving together, and stopped for gasoline at a different service station in Pittsfield. Holtzman and the victim entered the convenience store while Mortensen stayed inside the victim's vehicle. The victim testified that he briefly left the store to retrieve exact change from his automobile to purchase drinks and cigarettes. When he reentered the store, he immediately saw the defendant and recognized him as the assailant. After he put down his change, the victim and Holtzman left the store together, and confirmed with each other that the man in the store was the assailant. The victim then told Mortensen that the defendant was inside the store. When the defendant left the store, Mortensen agreed that the defendant was the assailant and the victim called the police on his cellular telephone.
As the victim spoke with the police, the defendant left the gasoline station in someone's automobile. The victim and Mortensen followed the defendant to an apartment complex in Pittsfield, with the victim communicating the defendant's location to the police as he was driving. Shortly thereafter, the police arrived at the apartment complex and asked the victim and Mortensen to perform a showup identification; they identified the defendant as the assailant. After the defendant's arrest, Detective Koenig interviewed Holtzman, who confirmed that the person in the convenience store on September 18 had been the same person she saw at the other convenience store on September 10.
Before trial, the defendant filed motions to suppress Holtzman's and the victim's pretrial identification of the defendant. The trial judge denied the motions. At trial, the defendant argued that he had been mistakenly identified as the assailant, and offered the testimony of his father, Earl Kirchner, who said that he lived with the defendant and that the defendant did not leave his apartment on the evening of the attack.
1. The defendant's requested eyewitness identification instruction.
The 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. [22 N.E.3d 903] The proffered jury instruction was considerably longer and more detailed than the Rodriguez instruction. It would have instructed the jury on various principles regarding eyewitness identification and human memory, most importantly that (1) human memory does not operate like a video recording that a person can replay to recall what happened;  (2) a witness's level
of confidence in an identification may not indicate its accuracy;  (3) high levels of stress can reduce the likelihood of making an accurate identification;  (4) information from other witnesses or outside sources can affect the reliability of an identification and inflate an eyewitness's confidence in the identification;  and (5) viewing the same person in multiple identification procedures may increase the risk of misidentification.
[22 N.E.3d 904] The judge denied the request and gave an identification instruction consistent with the Rodriguez instruction. The judge reasoned that the principles included in the defendant's request were
more appropriate for expert testimony or for closing argument. Furthermore, the judge explained:
" [T]his [proposed instruction] adds facts in. The process of remembering consists of three stages. That may be true. That may not be true. I have no idea myself but there is no information given to the jury that that is in fact accurate. So I cannot instruct them as a matter of law that that's what the law is."
The defendant objected to the omission of that part of his requested instruction, which recited these five scientific principles, so we review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591, 839 N.E.2d 324 (2005).
The issue before us is not whether the judge had the discretion to give the proffered instruction, but whether he abused his discretion by refusing to do so. See Hyatt, 419 Mass. at 818-819 (no error in declining to instruct on cross-racial identification, but giving proposed instruction " may be appropriate in the judge's discretion" ). We conclude that, given the record before him, the judge did not abuse his discretion in denying the defendant's proposed jury instruction.
We have long recognized that " a principle concerning eyewitness identifications may become so generally accepted that, rather than have expert testimony on the point, a standard jury instruction stating that principle would be appropriate." Santoli, 424 Mass. at 845. See Hyatt, supra (" We recognize that, based on a trial record or on the published results of studies, or both, some new principle concerning the process of eyewitness identification may become sufficiently reliable so as to justify formulating a jury instruction that should be given in particular circumstances on request, in addition to those instructions that we identified in [ Rodriguez, 378 Mass. at 310-311,] and Commonwealth v. Pressley, 390 Mass. 617, 619-620, 457 N.E.2d 1119 " ). The defendant here did not provide the judge with 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 appro-
priate to instruct the jury regarding them. Where the defendant failed to furnish such information, and where there was an instruction approved by this court that was not erroneous but, at worst, inadequate and incomplete, the [22 N.E.3d 905] judge did not abuse his discretion in denying the proffered instruction and charging the jury in accordance with the Rodriguez instruction. See Cruz, 445 Mass. at 595 n.4, 598, 600 (no error in judge's refusal to give jury instruction that " there is no proven relationship between a witness'[s] confidence in his identification and the accuracy of the witness'[s] identification" where defendant did not call expert witness and " there was no hearing or testimony regarding the reliability of these scientific studies or their general acceptance in scientific community" ); Hyatt, 419 Mass. at 818 (" The defendant points to no relevant empirical study that assessed the relative reliability of cross-racial and non-cross-racial identifications in confrontations of the sort involved here" ).
Although we conclude that the judge in this case did not abuse his discretion, and therefore affirm the defendant's convictions of mayhem and of breaking and entering a vehicle in the nighttime with intent to commit a felony, we take this opportunity to revisit our jurisprudence regarding eyewitness identification jury instructions in general and the Rodriguez instruction in particular. In Commonwealth v. Walker, 460 Mass. 590, 604 n.16, 953 N.E.2d 195 (2011), we recognized that " eyewitness identification is the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions," and declared our intention to convene the Study Group to consider, among other matters, " whether existing model jury instructions provide adequate guidance to juries in evaluating eyewitness testimony." We noted that our creation of the Study Group reflected " our willingness to revisit our jurisprudence" regarding eyewitness identification evidence. Id. at 606. With the Study Group Report completed and the comments to that report received, it is now time to do what we declared we were willing to do with respect to eyewitness iden-
tification jury ...