Com. v. Diaz

• Decision Date: 24 February 2009
• Docket Number: SJC-09559
• Parties: COMMONWEALTH v. Johnny DIAZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

901 N.E.2d 670

453 Mass. 266

COMMONWEALTH v. Johnny DIAZ.

SJC-09559

Supreme Judicial Court of Massachusetts, Middlesex.

Argued November 6, 2008.

Decided February 24, 2009.

Kathleen M. McCarthy, Boston, for the defendant.

Jessica Langsam, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, COWIN, CORDY, & BOTSFORD, JJ.

COWIN, J.

A Superior Court jury convicted the defendant, Johnny Diaz, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel, the defendant appeals from his conviction and from the denial of his motion for a new trial. He claims that his statements during an audiotaped police interview were improperly admitted because his waiver of Miranda rights was not valid and because his replies to certain questions constituted a denial; the admission of questions in the police interview referring to unnamed "people" who identified the defendant at the scene violated his confrontation rights; the judge should not have admitted evidence of prior bad acts; the judge committed prejudicial error by failing to instruct the jury on the use of excessive force in self-defense; and the defendant was denied the effective assistance of counsel. He also maintains that the judge impermissibly denied his motion for a new trial without holding an evidentiary hearing. Finally, the defendant requests that we exercise our extraordinary power pursuant to G.L. c. 278, § 33E, to reduce the verdict or order a new trial. We affirm the conviction and the order denying the motion for a new trial, and we decline to exercise our power to alter the verdict.

1. Facts and background. We summarize the facts the jury could have found, reserving further details for discussion of the issues raised. On May 12, 2001, the victim was shot to death in Lowell at approximately 3 P.M. Immediately prior to that, the defendant had stopped at the apartment of Edwin and Jose Alcantaro, two brothers, and retrieved two guns Jose had been keeping for him. The defendant put the guns, one of which had gray tape on the handle, in the car he was driving. The defendant said that the car, a gold Mitsubishi, belonged to his cousin and offered to give the brothers a ride.¹

As they drove on Merrimack Street in Lowell, a white car came up beside them and the driver, the victim, asked the defendant who owned the gold car. The defendant said that it was his cousin's car. The victim responded that his cousin's car had been stolen and that the defendant's car looked just like the stolen one. The victim asked to see the registration for the car. The defendant produced some documents and showed them to the victim. The victim responded by calling the defendant a thief and threatening to call the police. While the defendant was still in his car, the victim punched the defendant in the mouth. At some point thereafter, the defendant got out of the car.

Three people in a Jeep Cherokee vehicle came upon the scene. At least two of the Jeep's occupants knew the defendant. They sought to calm the victim down and suggested that he call the police if he thought the car was stolen.

The defendant walked to the Mitsubishi he had been driving, went into the front passenger seat, put his hand under the seat, and pulled out a gun. He returned to the victim, aimed the gun at him, and, touching his bleeding mouth with one hand, said, "How about now? How about now?" The men from the Jeep yelled, "No, Johnny, don't do that. No, no, don't do that," but the defendant fired and the victim fell to the ground, moaning in pain. The defendant said something to the effect of "Come on, come on, hit me again," walked "really close" to the victim, and shot him twice more in the chest. Then the defendant ran off.

Jose Alcantaro retrieved the other gun from the car, threw it over a fence and returned home. Shortly thereafter, the defendant appeared there. His mouth was swollen and he asked Jose to lend him a shirt. The defendant also told Jose that he had hidden the gun in a baby carriage on the second floor in a building where a friend of Jose's lived.²

Several other witnesses corroborated some or all of the above facts. Edwin Alcantaro had been present when the defendant came to his house to obtain the guns from Jose. Edwin was also in the car during the initial confrontation between the defendant and the victim. He ran home after the victim punched the defendant. Later he saw the defendant arrive at his apartment with a split lip. Both the Alcantaro brothers identified the defendant in court; each testified pursuant to an agreement with the Commonwealth that he would not be charged with any offenses relating to this incident.

Two of the men in the Jeep Cherokee testified. One of them had lived in the same building as the defendant; the defendant visited him on Saturdays and referred to him as "uncle" and to his wife as "aunt." These men essentially confirmed portions of Jose's testimony, although they had driven from the scene after the defendant shot the victim the first time. Both men identified the defendant in court; one of them had earlier selected his picture from a photographic array as well. Each of the men recalled that the defendant was wearing a blue shirt.

A person who was driving in the area at the time of the incident saw people arguing and someone on the ground. He observed a person wearing a blue shirt walk to the man on the ground, fire two shots and then run away. The shooter had blood on his hands and his shirt. He identified the shooter from a photographic array as the defendant. Two other individuals who were in the area observed some or all of the above events, but were not asked to identify the defendant as the shooter. One of them remembered that the man firing the gun was wearing a blue shirt.

The day after the incident, the defendant telephoned the home of one of the men who had been in the Jeep Cherokee and asked if anyone had asked about him, either "people or the police," and if the man in the Jeep had talked with the police. The person who answered the telephone said "no" and hung up. At about the same time, the defendant told a friend that he had been punched in the face, but that he had "merked somebody," meaning that he shot someone. The friend noticed that the defendant had "broken lips."

On May 15, 2001, Jose Alcantaro took a Lowell police detective to 77 Austin Street to the second-floor landing. Inside a baby carriage the detective found a handgun whose handle was wrapped in duct tape. The gun was identified as a .32 caliber Colt semiautomatic pistol. A dark blue shirt with blood on it had been placed over the baby carriage.

Testing of the Colt pistol revealed human blood stains on the trigger guard which contained deoxyribonucleic acid (DNA) belonging to the defendant. He was also the source of the DNA found on a piece of bloody fabric cut from the front passenger seat of the Mitsubishi and the blue shirt that had been located on the baby carriage with the gun. Examination of shell casings found at the scene indicated that they were fired from the Colt weapon that had been stored in the baby carriage and that the bullets recovered from the victim's body came from the same weapon. The first two gunshot wounds were each independently fatal.

The defense was that Jose Alcantaro was the shooter. To this end, the defendant questioned the ability of witnesses to see the shooter and emphasized the facts that the gun and the blue shirt were found in the hall of an apartment where Jose's friend lived, that Jose could not remember what he was wearing the day of the killing, and that Jose and his brother Edwin fled to Connecticut after the shooting.

2. Admissibility of defendant's audiotaped interview. The defendant claims that the judge erred by denying his motion in limine³ to exclude his taped police interview because he did not knowingly, intelligently and voluntarily waive his Miranda rights and because some of his answers to the police questioning constituted a denial. See Commonwealth v. Nawn, 394 Mass. 1 4-5, 474 N.E.2d 545 (1985) (unequivocal denial of crime by defendant charged with that crime is not admissible).

The judge held a hearing on the motion at the start of the trial and made his findings immediately thereafter. Two witnesses testified, Detective Hultgren and Officer William Bernard of the Lowell police department. The judge also listened to the recording of the police interview. We summarize the judge's findings. He credited the police testimony and found that, after the defendant was arrested for the murder of Luis Ayala on May 14, 2001, he was brought to an interview room at about 2 A.M. where Hultgren and a State trooper were present. Hultgren read the defendant the Miranda warnings in English. The defendant responded in English that he understood the warnings but would prefer the presence of a Spanish-speaking officer because he did not read English well and might not understand the police. Bernard, a Spanish-speaking officer, was contacted. While awaiting his arrival, the officers and the defendant engaged in small talk about sports and "matters unrelated to the murder." The conversation was friendly, in a "comfortable" room. The defendant was seated and not handcuffed. There was no "brandishing" of weapons and the defendant was given coffee.

When Bernard arrived, he read the defendant the Miranda warnings in Spanish from a card which the judge found contained an accurate rendition of the warnings in Spanish. After each warning, the defendant responded in Spanish that he understood the right. The defendant signed a "so-called Spanish Miranda card" and his signature was witnessed by the other officers present.

The defendant agreed to continue speaking with the officers, and the ensuing portion of the interview (approximately thirty minutes) was tape recorded. During that time, the defendant never expressed interest...