Commonwealth v. Diaz
| Decision Date | 06 January 2022 |
| Docket Number | No. 21-P-92,21-P-92 |
| Citation | 180 N.E.3d 467 |
| Parties | COMMONWEALTH v. Joaquin DIAZ. |
| Court | Appeals Court of Massachusetts |
Christopher DeMayo, for the defendant.
Marina Moriarty, Assistant District Attorney, for the Commonwealth.
Present: Wolohojian, Sullivan, & Ditkoff, JJ.
The defendant, Joaquin Diaz, appeals from his convictions, after a Superior Court jury trial, of armed robbery, G. L. c. 265, § 17, and assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (c ) (i). He also appeals from an order of a Superior Court judge denying his motion for a new trial. The prosecutor here, by her own admission, failed to fulfill her duty to inquire of the police concerning their possession of potentially exculpatory call log evidence. We conclude that the fact that evidence could reasonably be considered either inculpatory or exculpatory does not alter the prosecutor's duty to disclose it, especially upon request. Further concluding that, where defense counsel was already aware of the content of the call log and had decided not to use it for strategic reasons, there was no prejudice, we affirm the denial of the motion for a new trial.
We also conclude that the trial judge acted within his discretion in admitting evidence of the defendant's flight as consciousness of guilt, because the existence of an alternative explanation for the flight went to the weight and not the admissibility of that evidence. Further concluding that the prosecutor's isolated misuse of that evidence in closing argument and the judge's error in failing to instruct that the defendant had to know that a coventurer was armed did not create a substantial risk of a miscarriage of justice, we affirm the convictions.
1. Background. a. The attack. On May 17, 2014, the victim drove to his ex-wife's house to see their children. He parked across the street, got out of the car, and called his ex-wife to say he was there. The victim noticed three men walk by. As the victim reached the sidewalk in front of the house, the same three men, who had been walking up and down the street for a few minutes, ran up to him, the first man pointing a gun in his face. The gunman said, "Give me your chain," and all three began beating the victim, continuing to punch and kick him after he had fallen to the ground. During the attack, one of the men, who was wearing a plaid shirt, ripped a gold necklace with a horse-shaped pendant from the victim's neck. The victim suffered severe injuries from the attack.
A neighbor who had been sitting on her porch witnessed the incident. The victim's ex-wife also saw the attack on her home's security cameras. The security camera footage, which was played for the jury, shows the attack, but the resolution is not adequate for one to determine the identity of the assailants. The ex-wife ran outside, yelling, prompting the men to run away. The victim and his family members ran after the men, but could not see their faces. During the chase, the shooter turned around and fired his gun, but the bullet did not hit anyone. As the shooter was running, he lost his hat.2
The police arrived and followed a trained dog, who was alerted to the scent from the shooter's hat. The dog led the officers through a yard and over a fence. A short distance later, officers saw the defendant, yelled "police," and told him to stop. The defendant ran away and the police ran after him, apprehending the defendant at his house before he could get inside. None of the officers could remember the defendant's being pat frisked, and the transport officer acknowledged that he should have pat frisked the defendant, but did not do so.
Police brought the defendant, handcuffed, to the scene for a showup identification. As the defendant got out of the police van, a witness standing twelve to fifteen feet away heard "a metallic tinny sound," like "something fall[ing] on the ground." The witness then saw the victim's gold pendant on the ground and showed an officer. Earlier, the victim's ex-wife had looked for jewelry on the ground and found nothing.
The eyewitness neighbor had not seen the assailants’ faces, but, at the showup, she "recognized [the defendant's shirt] as the same shirt that the guy that went by [her] house was wearing." After "look[ing] at [the defendant] quickly," the neighbor " No other witness could identify the defendant or his clothing at the scene.
b. The cell phone data. Four days later, the police searched the defendant's cell phone (phone) pursuant to a warrant. The police extracted (but did not turn over to the prosecutor) 2,003 photograph and video recording (video) files from the defendant's phone.3 They did not extract any call log data, apparently because of issues with the software they were using. The prosecutor was aware that the police had seized and searched the phone, but was not aware of the photograph and video files recovered from it.
Before his first trial,4 the defendant specifically requested "all cell phone call data." Nevertheless, the prosecutor never asked the police for call log evidence. The prosecutor remained unaware throughout both trials "what specifically had been extracted from the phone" and "exactly what was on it," and mistakenly thought that the phone was password-protected.
Further complicating matters, defense counsel had obtained phone company records detailing the defendant's call history. The records showed that the defendant had made numerous calls around the time of the robbery, including a seventeen-minute call to his wife in the Dominican Republic immediately before the assailants first appear on the surveillance video. There is also a call one minute after the attack, but no calls during either time period while the assailants appear on the surveillance video. As we discuss infra, defense counsel chose not to attempt to use the records at trial.
c. The defendant's case. The defendant called his mother and stepfather to testify. They testified that they returned home at approximately 9 P.M. , and the defendant was home then. The defendant remained in the home until approximately 10 P.M. , when his mother sent him out for milk. He returned "not even two minutes later ... screaming, ‘Mom, open the door,’ " and followed by police officers. The police took him into custody.5
d. Motion for a new trial. Three years after the defendant was convicted in a jury trial, he moved for a new trial based on ineffective assistance of counsel.6 While the defendant's motion was pending, the parties learned that the defendant's cell phone was not password-protected, making the data inside it readily accessible when the police seized the phone and obtained a warrant.7
Based on this information, the defendant supplemented his new trial motion with a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial judge denied the motion after an evidentiary hearing, and this appeal followed.
2. Denial of the defendant's new trial motion. a. Standard of review. "[W]e review the denial of a motion for a new trial for " Commonwealth v. Duart, 477 Mass. 630, 634, 82 N.E.3d 1002 (2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1561, 200 L.Ed.2d 755 (2018), quoting Commonwealth v. Forte, 469 Mass. 469, 488, 14 N.E.3d 900 (2014). Where, as here, "the motion judge was also the trial judge, [his] rulings are ‘afforded special deference.’ " Commonwealth v. Gaudette, 56 Mass. App. Ct. 494, 503, 778 N.E.2d 988 (2002), quoting Commonwealth v. Hung Tan Vo, 427 Mass. 464, 467, 693 N.E.2d 1374 (1998). "If the new trial claim is constitutionally based, this court will exercise its own judgment on the ultimate ... legal conclusions." Commonwealth v. Rodriguez-Nieves, 487 Mass. 171, 176, 165 N.E.3d 1028 (2021), quoting Commonwealth v. Tucceri, 412 Mass. 401, 409, 589 N.E.2d 1216 (1992).
The defendant moved for a new trial based on the Commonwealth's failure to produce the call log on the defendant's phone, which the police had and were holding at the station. "To obtain a new trial on the basis of nondisclosed exculpatory evidence, a defendant must establish (1) that ‘the evidence [was] in the possession, custody, or control of the prosecutor or a person subject to the prosecutor's control’; (2) ‘that the evidence is exculpatory’; and (3) ‘prejudice.’ " Commonwealth v. Sullivan, 478 Mass. 369, 380, 85 N.E.3d 934 (2017), quoting Commonwealth v. Murray, 461 Mass. 10, 19, 21, 957 N.E.2d 1079 (2011).
b. Exculpatory evidence and the duty to inquire. Due process requires "that the government disclose to a criminal defendant favorable evidence in its possession that could materially aid the defense against the pending charges." Commonwealth v. Daniels, 445 Mass. 392, 401, 837 N.E.2d 683 (2005), quoting Tucceri, 412 Mass. at 404-405, 589 N.E.2d 1216. Consistent with this mandate, a prosecutor must disclose all exculpatory facts in the "possession, custody or control of the prosecutor, persons under [the prosecutor's] direction and control," or police officers aiding in the investigation and prosecution of a case. Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444 Mass. 1501 (2005). Murray, 461 Mass. at 19, 957 N.E.2d 1079. Accord Matter of a Grand Jury Investigation, 485 Mass. 641, 649, 152 N.E.3d 65 (2020) ().
Here, the cell phone was not locked and thus the recent call log data was readily accessible to the police who had seized the phone and had a search warrant authorizing its search. The prosecutor did not know this or that any information had been...
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