Providence
County Superior Court P1/14-2042AG Judicial Officer From
Lower Court Associate Justice Robert D. Krause
For
State: Owen Murphy Department of Attorney General
For
Defendant: Angela Yingling Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
William P. Robinson, Associate Justice
The
defendant, Francisco Diaz, appeals from the denial of his
motion for a new trial following his April 17, 2015
conviction in Providence County Superior Court on the
following counts: (1) assault on Theodora Nunez with a
dangerous weapon, "to wit, a firearm, " in a
dwelling house with the intent to murder, in violation of
G.L. 1956 § 11-5-4 (Count One); (2) assault on Jessica
Nunez[1] with a dangerous weapon, "to wit, a
firearm, " in a dwelling house with the intent to
murder, in violation of § 11-5-4 (Count Two); (3)
discharge of a firearm while in the commission of a crime of
violence, "to wit, assault with a dangerous weapon,
" causing injury to Theodora, in violation of G.L. 1956
§ 11-47-3.2(b)(2) (Count Three); (4) use of a firearm
while in the commission of a crime of violence, "to wit,
assault with a dangerous weapon" against Jessica, in
violation of § 11-47-3.2(a) (Count Four); (5) carrying a
pistol without a license, in violation of § 11-47-8(a)
(Count Five); and (6) assault on Jessica with a dangerous
weapon, "to wit, a knife, " in violation of §
11-5-2 (Count Seven).[2]On appeal, the defendant contends that the
trial justice erred in denying his motion for a new trial due
to the alleged inconsistencies and inaccuracies in and
between the testimonies of Jessica and Theodora.
For the
reasons set forth in this opinion, we affirm the judgment of
the Superior Court.
I
Facts
and Travel
The
charges against defendant stemmed from an incident involving
Jessica and defendant's use of a knife in early April of
2014 and a shooting on April 23, 2014, in which Theodora,
Jessica's mother, was injured. A trial was held on the
six above-indicated charges over five days in April of 2015.
We relate below the salient aspects of what transpired at
that trial.
A
The
Testimony at Trial
1.
The Testimony of Jessica Nunez
Jessica
Nunez testified that she and defendant had been in a
relationship until two weeks before the April 23, 2014
shooting. She stated that defendant is the father of her
ten-year-old son. It was her testimony that she and defendant
separated because he "threatened [her] with a knife,
saying that he would stab [her], slash [her] face." She
then proceeded to testify in more detail about the incident
that caused their separation. She stated that, two weeks
before April 23, 2014, defendant picked her up from work and
drove towards Foxwoods Casino in Connecticut. According to
her testimony, defendant kept asking her questions about the
previous night, when she "went out with [her] sister to
buy an outfit." It was her testimony that, during the
drive, she told defendant that she was "fed up;"
she added that he then said that he "was going to jump
off a bridge." She stated that she told defendant that
she "no longer wanted to be with him" and that then
"[defendant] said that he was going to drive [them] off
a bridge." Jessica testified that, in reaction to the
latter statement, she called 911, "opened the car door,
[put her] hand and [her] foot out one side" and that
defendant took her phone away and hit her with it. It was
Jessica's further testimony that she then began
"act[ing] as though * * * [she and defendant] were still
going to be together after the incident."
According
to her testimony, upon returning to the home she shared with
defendant and their son, Jessica "immediately * * *
started packing." Jessica next testified that, while she
was packing in the bedroom, she heard "a gasping sound
from the living room" and found defendant "hanging
from the chandelier" "by a wire" "around
his neck." Jessica stated that she then twice grabbed
the chair he had stood upon in order to reach the chandelier
and put the chair back underneath him; she added that she
threatened to call 911. It was her testimony that defendant
then removed the wire from his neck. Jessica stated at trial
that she returned to the bedroom and told defendant that she
was leaving.
According
to Jessica's testimony, when defendant returned to the
bedroom, she "could tell he was holding something behind
him" and defendant "pulled out a knife." She
testified that she was within five inches of the knife and
"felt very afraid." She added that defendant
threatened to stab her and to "slash [her] face."
Jessica's testimony reflects the fact that she and
defendant moved to the bathroom and then to the kitchen while
defendant was still holding the knife. She stated during her
testimony that she had "tried to run" but
"d[id]n't know where [she] was going." Jessica
testified that she "decided [she] was going to tell
[defendant] that it's okay, that this is not the worst
thing ever that had happened between a couple, and that why
d[id]n't [they] just go along about [their] day how
[they] were supposed to." It was her testimony that she
made that statement because she did not have access to a
phone and could not "get out of the house."
It was
further Jessica's testimony that she and defendant then
left the apartment to go to a Taco Bell restaurant, and
defendant left the knife in the apartment. She testified
that, when they were inside the Taco Bell, defendant
"wasn't able to eat;" she added that she took a
bite of her taco and then told him "[y]ou have to
go." It was her testimony that, upon her threat to
"tell everyone what [he did], " he gave her back
her phone and left the restaurant. Jessica testified that she
then called her stepfather and asked him to come and pick her
up.
It was
Jessica's testimony that she went to the apartment she
had shared with defendant only one time after the knife
incident; she stated that she went to pick up some of her
son's belongings while her mother and her son waited in
the car. She added that she and defendant continued to
communicate over the phone, by text message, and in person in
the two weeks preceding the shooting. Moreover, it was
Jessica's testimony that on April 23-the day of the
shooting-she saw defendant at his place of employment when
she went there "to collect $50." She added that she
agreed to see him that night "[b]ecause he said he would
bring [her] make-up and camera." Jessica stated at trial
that defendant showed up around seven and they stood and
talked on the porch of her mother's house, where she was
staying. It was her further testimony that they were both
calm until she told him she "went out" with some
friends; she stated that at that point she "saw that the
conversation wasn't really going anywhere [and she] * * *
started backing away." According to her testimony, she
backed into the foyer, which was separated by a door from the
living room.
When
asked what happened next, Jessica testified as follows:
"Once I was inside and just poking out my head,
[defendant] had gotten up from * * * where he was at, like,
sort of in an angle way, held onto the knob, opened it, and
immediately, like, pulled out the gun from the back of his
waist." She stated that defendant told her that he was
not going to kill her but that he wanted to shoot her parents
"[b]ecause he wanted [her] to understand what it felt
like to be lonely and suffer." It was her testimony that
defendant then opened the door into the living room and
"at that point [she] was standing in front of him, and
[she] looked towards [her] left, and [she] saw [her]
mom's face, but then [she] focused [her] attention on
[defendant], and [she] said, Don't do it. You don't
have to do it. And by that time he was underneath [her] left
arm. [She] ...