Commonwealth v. Ortiz

853 N.E.2d 1079, 67 Mass. App. Ct. 349, 2006 Mass. App. LEXIS 956
CourtMassachusetts Appeals Court
DecidedSeptember 14, 2006
DocketNo. 04-P-961
StatusPublished
Cited by6 cases

This text of 853 N.E.2d 1079 (Commonwealth v. Ortiz) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ortiz, 853 N.E.2d 1079, 67 Mass. App. Ct. 349, 2006 Mass. App. LEXIS 956 (Mass. Ct. App. 2006).

Opinion

Perretta, J.

On consolidated appeals from his convictions of murder in the second degree, G. L. c. 265, § 1, and related [350]*350crimes,1 and from the denial of his motions for a new trial2 and for funds for an investigator, the defendant argues that the Commonwealth misrepresented that an eyewitness to the crimes was unavailable, thereby depriving him of a missing witness instruction, and that trial counsel’s failure to call an alleged exculpatory witness constituted ineffective assistance.3 The defendant also argues that the judge abused her discretion by denying his postconviction motion for funds to locate the alleged exculpatory witness and his request for an evidentiary hearing on his motion for a new trial. Seeing no error in the judge’s rulings, we affirm the judgments and the orders denying the defendant’s motions.

1. Background, (a) The Commonwealth’s case. It was the Commonwealth’s theory of guilt that on October 25, 1999, the defendant shot and murdered Eddy Javier Reynoso because of a dispute between them concerning Grisela Gonzalez. In support of this theory, the Commonwealth offered the testimony of Gonzalez and that of various law enforcement personnel, who produced physical evidence and related the details of their investigation that led to the defendant’s arrest and confession.4 The Commonwealth also had the defendant’s written confession read to the jury.

In his confession, the defendant described how Reynoso repeatedly embarrassed and humiliated him about a poem he had written to Gonzalez, and he detailed Reynoso’s attempts to [351]*351make him jealous with claims that he, Reynoso, had a relationship with Gonzalez. The defendant stated that on the night of Reynoso’s murder he met his friend, Carlos Rodriguez; that they walked to Reynoso’s apartment; that as he, the defendant, knocked on the door to Reynoso’s apartment, Rodriguez stood off to the side; that when Reynoso opened his door and saw the defendant, Reynoso began to swear and close his door; and that he, the defendant, fired his gun three times and fled from the building with Rodriguez. The defendant further stated that after separating from Rodriguez, he hailed a taxicab, and when he saw some trees a short time later, he had the driver drop him off and he threw the gun into the woods. 5

In addition to the above evidence, one of the Commonwealth’s witnesses, State Trooper John S. Schrijn, testified that the day after Reynoso’s murder, a man named Alex Rosa was shot and killed, and that the bullets recovered from both homicide investigations were shot from the same gun and were the same type.

(b) The defendant’s case. The defendant claimed that one of the men convicted of the Rosa homicide, Kelvin Gutierrez, shot Reynoso with the same gun that he used to kill Rosa. In support of that claim, the defendant called three witnesses and entered into evidence a stipulation that Gutierrez and Jean Carlos Almo-dovar were convicted of the shooting death of Rosa. The first witness called by the defendant was John G. Murphy, the State trooper who served as the case officer for the Rosa homicide. Trooper Murphy testified that a .38 caliber bullet was recovered during Rosa’s autopsy and that he later learned ballistic tests established that the same gun was used in both the Reynoso and Rosa homicides. He also told the jury that a search of Gutierrez’s apartment produced a “speed loader with two .38 caliber class rounds.”6

Trooper Murphy further testified that he searched for a taxicab driver who picked up a fare matching the details as to time and place provided by the defendant in his confession; that [352]*352he located a driver; and that when he showed the driver a photographic array, which included the defendant, Gutierrez, and Almodovar, the driver, expressing some uncertainty, selected Gutierrez’s photograph.

On cross-examination, Trooper Murphy testified that in the course of his investigation, he found “no relationship or ties” between Gutierrez and Reynoso, or between Almodovar and Reynoso. Nor did he find any connection between the defendant and Rosa.

To rebut the notion that the defendant was unacquainted with Gutierrez, the Commonwealth presented the testimony of a correction officer assigned to the Ludlow house of correction. The correction officer testified that on October 29, 1999, he spoke with the newly arrested defendant who, speaking in English, requested that he be placed in a cell with his friend, Gutierrez. On cross-examination, the correction officer acknowledged that during the transport and intake process, new inmates are free to speak among themselves.

The defendant’s second witness was Luis A. Garcia, a man who lived in an apartment across the hall from Reynoso. Garcia testified that when he heard loud knocking on Reynoso’s door, he looked out the peep hole in his door, saw the back of a tall male with short “kinky” hair, who was wearing a black jacket, and, after hearing a man ask, “Are you Eddy?” and “Do you know Lisa or Lucy?” he returned to watching television. Garcia told the jury that he looked out the peep hole a second time, saw Reynoso in his doorway, then returned to watching television, and that less than three minutes later, he heard three gunshots. On cross-examination, Garcia again stated that he saw only one person standing in the hallway and added that if another person remained standing in the staircase or to the right of his peep hole, he would not have seen him.

The third witness called by the defendant was Thomas Nev-ille, the taxicab driver located by Trooper Murphy. Neville testified that he was dispatched to pick up a fare that was a “no show” and, as he was leaving the area, he was flagged down by a man who said he was the person who had called earlier for a taxicab. Neville described his fare as an English-speaking Hispanic man in his twenties, dark in complexion, about five [353]*353feet, six inches, to five feet, eight inches, tall, and weighing 160 to 170 pounds. Neville indicated that the fare was small, about four dollars. He also identified the photograph of Gutierrez as the one he selected from the array presented by Trooper Murphy.

2. Motion for funds for an investigator. The day after Reynoso’s murder, Wilbert Diaz gave a signed statement to the police. According to Diaz’s statement, he lived in the apartment next to Reynoso and was friends with the defendant. Diaz’s statement substantially tracked the trial testimony of Garcia, the neighbor who lived across the hall from Reynoso. See part 1(b), supra. That is, on the night of the murder, Diaz heard loud knocking on Reynoso’s door and a voice coming from the hallway ask, “Are you Eddy?” and request that Reynoso step outside his apartment. Diaz related that after Reynoso refused to step into the hallway, he heard three rapid gunshots, which he believed to be louder than shots fired from a “.357 revolver.” He next heard “people running down the stairs very fast and the door slam down stairs [sic].” Diaz then ran into his bathroom and called the police on his cellular telephone. He remained in the bathroom until he heard the police in the hallway.

Appellate counsel filed a motion for funds to hire an investigator to locate Diaz. See Mass.R.Crim.P. 30(c)(5), as appearing in 435 Mass. 1502 (2001).

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Bluebook (online)
853 N.E.2d 1079, 67 Mass. App. Ct. 349, 2006 Mass. App. LEXIS 956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ortiz-massappct-2006.