Commonwealth v. Diaz Perez

484 Mass. 69

138 N.E.3d 1028

COMMONWEALTH

v.David Nicanor DIAZ PEREZ.

SJC-10581

Supreme Judicial Court of Massachusetts, Suffolk..

Argued October 4, 2019

Decided February 3, 2020

Cailin M. Campbell, Assistant District Attorney (John P. Pappas, Assistant District Attorney, also present) for the Commonwealth.

Robert F. Shaw, Jr., Cambridge, for the defendant.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

In 2003, the defendant was charged with murder in the first degree and possession of a firearm without a license in connection with a fatal shooting. His first trial ended in a mistrial when the jury were unable to reach a verdict. His second trial, at which the defendant had different counsel, ended in convictions. At both trials, the Commonwealth relied on the testimony of two eyewitnesses to identify the defendant as the shooter. During the first trial only, however, an alibi witness testified that he had been inside a building with the defendant when the shooting took place on a street outside the building. After his convictions, the defendant moved for a new trial, arguing that his second attorney's failure to call or even investigate this witness amounted to constitutionally ineffective assistance of counsel. The second trial judge agreed and granted the motion. The Commonwealth appealed from the allowance of a new trial. Because we discern no abuse of discretion or clear error of law in the judge's decision, we affirm and remand for a new trial.

1. Background. a. Facts. On March 22, 2003, the victim, Quirico Romero, was fatally shot at a baby shower. The baby shower was attended by roughly one hundred guests (including the defendant), many of whom did not know one another. The event was held inside a hall, and featured both a disc jockey and an open bar. As midnight approached and the event concluded, the guests began to gather outside. An argument then broke out between the shooter, his companion, and another guest in the street outside the hall. This argument escalated into physical violence. Eventually, the shooter produced a gun, firing it once into the air and then twice more. The victim, who also had been outside but who had not been involved in the initial confrontation, attempted to flee after the first shot was fired. He was shot in the back and later died of his injuries.

b. Proceedings at trial. On July 1, 2003, the defendant was indicted on charges of murder in the first degree and unlawful possession of a firearm. His first trial began in May of 2006. A mistrial was declared because, after more than a week of deliberation, the jury were still unable to reach a verdict. After the first trial, the defendant was appointed new counsel. On June 12, 2007, the jury at the defendant's second trial, which involved the same prosecutor but a different judge, found him guilty of both charges. Accordingly, he was sentenced to life in prison without the possibility of parole for the murder conviction. He also received a concurrent sentence of from four to five years for the firearm charge.

The principal factual issue at each trial was whether there was sufficient evidence to identify the defendant as the shooter. The Commonwealth produced no physical or forensic evidence directly tying the defendant to the crime;¹ it relied almost exclusively on eyewitness testimony. While investigating the shooting, the police prepared a photographic array containing the defendant's photograph.² This array was shown to six individuals who claimed to have witnessed the shooting or the preceding altercation. Only two of them identified the defendant as the shooter.³ Neither witness had seen the defendant before the baby shower, and only one of them claimed to have seen the defendant actually fire the gun. Both witnesses identified the defendant as the shooter at trial and were cross-examined. The Commonwealth also introduced corroborating eyewitness testimony regarding the shooter's appearance, including his ethnicity,⁴ height, and attire.

One of the witnesses testified at the defendant's first trial but not at the second: Analdi Sanchez. Sanchez asserted that he had been inside the hall with the defendant when the shooting occurred. He also denied having seen the defendant with a gun. On cross-examination, the Commonwealth identified gaps in Sanchez's memory. The prosecutor also questioned Sanchez about his claim that he had not spoken with the defendant about the shooting, and his reluctance to come forward with his testimony until contacted by a defense investigator.

c. Subsequent procedural history. Following his convictions, the defendant filed a timely notice of appeal in this court. His appeal has remained stayed due to various delays. In March 2017, the defendant filed a motion for a new trial in this court, and that motion was remanded to the Superior Court. Represented by yet another attorney, the defendant argued that the failure of his second trial counsel (successor counsel) to call Sanchez or to investigate Sanchez's prior testimony constituted ineffective assistance of counsel, and therefore violated his rights under the Sixth Amendment to the United States Constitution. Sitting as the motion judge, the judge who had presided at the defendant's second trial conducted evidentiary hearings on June 28 and August 6, 2018.

The judge found that successor counsel had spoken with the defendant's previous counsel to obtain the defendant's case file after being appointed to represent him in July 2006. Upon reviewing the file, successor counsel knew that the defendant's first trial had ended in a mistrial and that it had turned on the reliability of eyewitness testimony. The file, however, did not contain a trial transcript. So, in October of 2006, successor counsel filed a motion to obtain transcripts from the first trial.

Before the second trial began, successor counsel met with the defendant's mother. His mother mentioned that Sanchez had testified and might be available to do so again, but she did not explain the substance of Sanchez's testimony.⁵ Successor counsel thus had "no idea" that Sanchez's testimony placed the defendant away from the scene of the shooting when it happened. She did not hire a private investigator to locate or talk to Sanchez, or make any effort to contact him or to ascertain the content of his testimony, a decision the judge called "inexplicabl[e]." While counsel ultimately did put Sanchez on her witness list, she testified at the evidentiary hearing that her practice was to provide the names of all possible witnesses so that potential jurors could hear them.

Two weeks before the second trial began, the trial transcripts still had not arrived. Only then did successor counsel move for a continuance. Her motions did not mention Sanchez or explain that she needed the transcripts to understand his testimony; the motions were denied.⁶ The transcripts arrived at the eleventh hour: the certification for the transcript volume containing Sanchez's testimony is dated May 31, 2007, which is the very day that the second trial began. At trial, successor counsel had the transcripts, but she did not call Sanchez or attempt to show that he was unavailable in order to introduce his prior testimony. At the evidentiary hearing, counsel acknowledged that she could have taken either course of action, and she could not explain why she had not.

Based on these findings, the judge concluded that successor counsel had provided ineffective assistance of counsel. Applying the traditional standard this court set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), the judge reasoned that counsel's failure to investigate Sanchez fell short of the standard of competence expected from an ordinary lawyer, and that this failure deprived the defendant of a substantial ground of defense.

The judge described the Commonwealth's case as "far from overwhelming," noting that only two out of six eyewitnesses presented with the photographic array had identified the defendant as the perpetrator. She also observed that the incident took place at night following a party where alcohol had been consumed. Accordingly, she wrote that evidence "placing the defendant elsewhere when the shooting occurred would necessarily be important." The judge was not persuaded that issues with Sanchez's testimony, including inconsistencies between his account of events and those given by other witnesses, would have negated the impact of the testimony; such issues were for the jury to decide. In September of 2018, the judge therefore allowed the defendant's motion for a new trial. The Commonwealth then appealed.

2. Discussion. The Commonwealth contests both that successor counsel was ineffective and that any error on her part prejudiced the defendant. Even if we found its arguments persuasive, which we do not, the Commonwealth has not shown that the judge abused her discretion in allowing the defendant's motion for a new trial.

a. Standard of review. "The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). The decision to allow a new trial is reviewed for abuse of discretion and "will not be reversed unless it is manifestly unjust." Commonwealth v. Gorham, 472 Mass. 112, 117, 32 N.E.3d 1267 (2015), quoting Commonwealth v. Nieves, 429 Mass. 763, 770, 711 N.E.2d 571 (1999). Accord Commonwealth v. Wright, 469 Mass. 447, 461, 14 N.E.3d 294 (2014) (decision on motion for new trial is reviewed for "significant error of law or other abuse of discretion" [citation omitted] ). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Martin, 467 Mass. 291, 316, 4 N.E.3d 1236 (2014).

Taking this deferential approach, this court is called upon to determine...