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State v. Diaz

Supreme Court of Rhode Island

May 16, 2017

State
v.
Francisco Diaz.

         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] ...


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