Summary
The Massachusetts Supreme Judicial Court affirmed the defendant’s convictions for murder in the first degree and unlawful possession of a firearm, as well as the denial of his motion for a new trial. The court rejected claims of ineffective assistance concerning jury-venire representation and expert testimony, concluded that alleged newly discovered evidence concerning the medical examiner did not warrant a new trial, and upheld the admission of prior recorded testimony from an unavailable witness. The court also declined to grant relief under G. L. c. 278, § 33E.
Topics
Practice areas
Questions Presented
- Whether trial counsel was ineffective for failing to challenge alleged racial and ethnic underrepresentation in the jury venire or request that minority jurors be seated out of turn.
- Whether trial counsel was ineffective for failing to retain a defense expert concerning the firearm's contact with or proximity to the victim's face.
- Whether evidence concerning a medical examiner's disciplinary proceedings constituted newly discovered evidence warranting a new trial.
- Whether the Commonwealth established that a witness was unavailable and whether the defendant had an adequate prior opportunity to cross-examine him so that his recorded testimony from the first trial could be admitted at the second trial.
- Whether relief was warranted under the Massachusetts Supreme Judicial Court's plenary review authority under G. L. c. 278, § 33E.
Holdings
- Counsel was not ineffective for failing to seek a remedy for alleged minority underrepresentation because the defendant failed to establish unconstitutional underrepresentation. A visual assessment of one venire was insufficient, and no statistically significant evidence or proof of systematic exclusion was presented.
- Counsel was not ineffective for failing to retain a defense expert because the decision was deliberate or tactical, and the expert affidavit did not show that additional expert testimony would have added anything of substance or created a substantial likelihood of a miscarriage of justice.
- The medical examiner's consent order and related disciplinary information did not warrant a new trial because the information was either discoverable before trial or did not cast real doubt on the justice of the conviction.
- The trial judge properly admitted Fernando Santana's recorded testimony from the first trial because the Commonwealth made a good-faith, diligent effort to locate him and the defendant had a constitutionally adequate prior opportunity and motive to cross-examine him.
Key quotations
“A mere visual assessment of the jurors, however, is not a sufficient basis on which to establish the racial and ethnic composition of the venire.” (827)
“Newly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial.” (832)
“Whether the Commonwealth carries its burden on the question of sufficient diligence in attempting to obtain the attendance of the desired witness depends upon what is a reasonable effort in light of the peculiar facts of the case.” (833)
Factual background
After an altercation involving the defendant, Maria Diaz, and Angel Baretto, the defendant went to his apartment, stated that he would get revenge, obtained a firearm, and returned near the location of a baby shower attended by Diaz's son, Carlos Cruz. Witnesses testified that the defendant summoned Cruz outside and shot him in the face before fleeing; the defendant later told a witness that he had hit someone and the gun had gone off. The defense argued that the shooting was accidental and resulted from using the gun to strike Cruz, while forensic testimony indicated a near- or partial-contact gunshot wound.
Procedural history
The defendant was first convicted in 1996, but those convictions were reversed for ineffective assistance of counsel and the case was remanded for a new trial. The second trial again resulted in convictions on both indictments. A different Superior Court judge denied the defendant's motion for a new trial because the original trial judge no longer served in the Superior Court. The Supreme Judicial Court affirmed the convictions and the order denying a new trial and declined to grant relief under § 33E.