State v. Diaz

46 A.3d 849

STATE

v.Juan DIAZ.

No. 2010–236–C.A.

Supreme Court of Rhode Island.

July 12, 2012.

Jane M. McSoley, Department of Attorney General, for State.

Janice M. Weisfeld, Office of the Public Defender, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice ROBINSON, for the Court.

The defendant, Juan Diaz, appeals from a judgment of conviction on one count of second-degree murder and one count of using a firearm while committing a crime of violence. On appeal, the defendant first contends that the trial justice erred in failing to grant his motion for a judgment of acquittal on the second-degree murder charge; the basis for that contention is the defendant's subordinate assertion that the state failed to provide legally sufficient evidence for a jury to find that he acted with malice in connection with the death of the victim. The defendant additionally contends on appeal that the trial justice erred in omitting the phrase “criminal negligence” from his instruction to the jury concerning involuntary manslaughter and instead used “confusing language,” which made it difficult for the jury to distinguish the crime of involuntary manslaughter from the crime of murder in the second degree.

For the reasons set forth in this opinion, we affirm in part and reverse in part and vacate the judgment of conviction.

IFacts and Travel

On June 25, 2008, at approximately 9:45 p.m., a telephone call was made by defendant to the main line of the Pawtucket Police Department.¹ In the course of that call, defendant informed the police dispatcher that he had “shot [his] girlfriend in the face by mistake.” Asked to clarify that statement, defendant stated: “It's an accident; I shot my girlfriend in the face by mistake.” He further stated as follows: “[S]he had my gun and when I took it away from her it hit her right in the face.” The defendant informed the dispatcher that the victim was not breathing and that she was “throwing up blood.” When asked where the gun was located, defendant responded: “[I]t's not around * * *.” Eventually defendant revealed that the incident had occurred “last night,” and he then more specifically stated that it had occurred “around three in the morning.” The defendant further stated that he “didn't know what to do” and had become “nervous.” He elaborated that he had “tried to help her” by giving her CPR. The defendant also stated to the dispatcher that he “didn't want to report it * * *.”

On June 26, 2008, the Pawtucket police department issued an arrest warrant for defendant. Pursuant to that warrant (and a related warrant which was issued in Albany, New York), defendant was arrested in Albany on the same day as that on which the warrants were issued. At the time of defendant's arrest, an Albany detective administered to defendant his Miranda rights. After executing a Waiver of Extradition, defendant was transferred to Rhode Island.

AThe Indictment and the Evidence Presented at Trial

On January 23, 2009, a Providence County grand jury indicted defendant for the murder of Mayra Cruz (the victim of the shooting at issue), in violation of G.L.1956 § 11–23–1 and G.L.1956 §§ 12–29–2 and 12–29–5; ² he was also indicted for “committing a crime of violence using a firearm [and] discharg [ing] [said] firearm resulting in the death of Mayra Cruz,” in violation of G.L.1956 § 11–47–3.2(b)(3). On February 10, 2010, defendant's trial began in the Superior Court for Providence County. The state presented the testimony of eleven witnesses. Although defendant elected not to testify, he presented the testimony of one witness. We summarize below the trial testimony pertinent to the issues on appeal.

1. The Testimony of the Law Enforcement Officers and the Medical Examiner

David Holden, a police officer employed by the City of Pawtucket, was the first witness to testify on behalf of the state. Officer Holden testified that, during his patrol shift on June 25, 2008, between approximately 9:45 p.m. and 10 p.m., he received a call “from dispatch.” Officer Holden stated that dispatch informed him that “a male had just called and indicated that he had shot his girlfriend in the face at 3:00 in the morning.” Officer Holden further stated that, at that time, it was his belief that the person who had called “was still on scene.” He testified that he proceeded to the scene of the reported shooting, which was on Reservoir Street in Pawtucket; he said that, when he arrived, there were already several other police officers present. Officer Holden testified as follows with respect to what he observed when he and the other officers eventually gained access into the apartment:

“I observed a female who was completely naked. She was only wearing her bottom underwear. * * * I immediately reached down to grab her arm to pull her from that apartment, at which time I felt her arm to be completely cold and her muscles tight and rigid. I believed she passed away, and conveyed that information to [the sergeant on the scene].”

Officer Holden further testified that, because the officers believed that the suspect “could have been inside [the apartment] hiding,” they retreated, and the special response team (of which Officer Holden was a member) was called. Officer Holden stated that he eventually reentered the apartment as a member of the special response team; he testified that, upon reentering the apartment, he saw “blood around the room.” He further stated that he observed “what appeared to be a gunshot wound under [the victim's] left eye.” Officer Holden also testified that he did not observe a gun in the immediate vicinity. ³

On cross-examination, Officer Holden acknowledged that, in his police report with respect to the above-described incident, he had written that he was initially informed that someone “had just accidentally shot his girlfriend;” he further acknowledged that he had not employed the word “accidentally” while testifying on direct examination.

Joseph Altongy, also a police officer employed by the City of Pawtucket, testified that he had first visited the address where the death of Ms. Cruz occurred “around 8:30” p.m. on June 25, 2008; he stated that it was approximately one hour before he arrived on the scene for the “death investigation.” Officer Altongy testified that the reason for his 8:30 visit involved “an unregistered auto;” he stated that it was his responsibility to “check[ ] out the vehicle, make sure if it's registered * * *.” Officer Altongy further testified that he “[ran] a registration check on the vehicle,” which revealed that the car was “registered to Mayra Cruz;” he also stated that the registration “[c]ame back suspended.” He testified that he then “requested a tow” and “documented the damage that had been sustained to the vehicle.” He further explained at trial that he “noticed that the front passenger window had been shattered.”

Alexander Chirkov, M.D., a medical examiner for the State of Rhode Island, testified as an expert in forensic pathology. Doctor Chirkov testified that, on June 26, 2008, he performed an autopsy on the body of Ms. Cruz. Doctor Chirkov further testified that, when he first observed her body, he noted that she had a “[g]unshot wound of the face;” he later stated that the bullet had entered the victim's left cheek. He added that there was “stippling around [the] entrance of [the] gunshot wound.” He explained that stippling is the “embedding [of] gunpowder in the skin.” Doctor Chirkov stated that the area of the stippling was “four by three inches.” When asked whether he could determine how far away the gun was from the victim's face when it was fired, Dr. Chirkov responded as follows: “It[ ] depend[s] on the weapons, and this can be from [a] few inches up to * * * one, two, possibly three feet.” Doctor Chirkov further stated that the trajectory of the bullet was “[s]lightly down.”

When questioned by the prosecutor as to what would be the effect of the gunshot wound on the victim, Dr. Chirkov answered as follows: “[D]ecrease [d] heart rate, also brain edema, and decrease in blood pressure, arterial blood pressure.” He proceeded to explain that edema is the “swelling of the brain as [a] result of decreased oxygen,” which he said would result in vomiting. Doctor Chirkov also noted that the victim “had some bruises on her right arm and right foot,” which bruisinghe determined had been sustained “[w]hen she was alive.” When asked how long the victim would have remained alive after sustaining her injury, Dr. Chirkov stated that, based upon his experience and the autopsy that he performed, she would have remained alive for “[a]pproximately 15, 20 minutes.” ⁴

With respect to how long the victim had been dead by the time that the medical examiner arrived at the scene of the shooting (approximately midnight on June 26, 2008), Dr. Chirkov testified that the body had “complete rigor” when the medical examiner first observed it; Dr. Chirkov stated that that meant that the victim had been “dead at least 12, up to 24 hours.” He further testified that he did not observe that the victim had any disease or internal medical problems. Doctor Chirkov also stated that, in his opinion and to a reasonable degree of medical certainty, the cause of the victim's death was a “[g]unshot wound to the head.”

On cross-examination, Dr. Chirkov testified that his description of the angle of the shot was “based on [the] normal anatomic position of the body;” he said that he did not know what the position of the body was at the moment of the shot. He further acknowledged that a bullet can “rattle” around once it enters the brain and that such movement could disrupt the original path of the bullet. Doctor Chirkov also testified that none of the victim's fingernails were damaged and that there was no debris observed under any of the fingernail clippings which he had taken. Doctor Chirkov further testified that he did not observe any evidence of defensive...