Opinion
PM/18-3350
11-13-2024
FRANCISCO DIAZ v. STATE OF RHODE ISLAND
For Plaintiff: John F. Cicilline, Esq. For Defendant: Daniel Guglielmo, Esq.
(P1/14-2042AG)
For Plaintiff: John F. Cicilline, Esq.
For Defendant: Daniel Guglielmo, Esq.
DECISION
KRAUSE, J.
In April 2015, a jury convicted Franciso Diaz of trying to kill his girlfriend and her mother. He is serving fifty-five years in prison, fifteen without parole, for those assaults as well as other firearm offenses. Ten years later, in a postconviction-relief petition, he says that he was ill-served by his two trial attorneys, criticizing them for allegedly failing to apprise him of disposition possibilities and not investigating the case. He also alleges that they snuffed out his right to testify at trial. The Court disagrees.
At trial, Diaz was represented by Joseph J. Voccola and Thomas F. Connors (dec. 2016), each of them accomplished criminal defense practitioners. Mr. Voccola testified at the September 9-10, 2024 postconviction-relief hearing. The term "counsel," although assigned to Mr. Voccola for clarity of dialogue at that hearing, should generally be attributed to both attorneys, unless differentiated by context, as they were univocal in their trial strategy and advisements to Diaz. Diaz and his close family friend Narde Rosario also testified at the hearing. The parties have filed multiple briefs and provided several exhibits, many of which are transcripts drawn from the record of the case. They have dispensed with oral argument and submitted the matter to the Court for decision.
The facts underlying the charges are fully set forth in the Supreme Court's denial of Diaz's direct appeal. State v. Diaz, 159 A.3d 1053 (R.I. 2017). Very briefly, Diaz and Jessica Nunez, his girlfriend and mother of his child, had an uneven relationship. In early April 2014, Diaz, a possessive and jealous man, assaulted Jessica at knifepoint, threatened to stab her, slash her face, and kill her. She was not injured, but she left shortly thereafter and moved in with her mother, Theodora Nunez. About two weeks later, Diaz went to Theodora's house with a loaded handgun tucked in his waist. He and Jessica spoke outside without incident until she told him that she had gone out with some friends. He followed her into the house, became violent, and threatened to kill her parents.
He drew his gun when Theodora appeared, and Jessica, who had been pushed to her knees, struggled to check Diaz's control of the firearm, but he was able to level the weapon and shot Theodora in the chest. He then put the gun to Jessica's head and tried to shoot her, but it malfunctioned. He immediately drove away, threw the firearm in a river, and fled to New York.
Both Jessica and Theodora testified at trial; Diaz did not. The jury rejected his defense that the shooting was accidental, and this Court denied his motion for a new trial on April 28, 2015. Facts relating to Diaz's postconviction-relief (PCR) claims will be supplied as needed.
* * *
General Laws 1956 § 10-9.1-1 cedes to a convicted felon an opportunity to seek postconviction relief if, inter alia, his conviction resulted from a violation of his constitutional rights. An applicant must prove that claim by a preponderance of the evidence, Hazard v. State, 64 A.3d 749, 756 (R.I. 2013); and if he alleges that his attorney rendered prejudicially deficient assistance, he must support that challenge by surmounting the two-tiered test prescribed by Strickland v. Washington, 466 U.S. 668, 688 (1984), followed by our Supreme Court. E.g., LaChappelle v. State, 686 A.2d 924, 926 (R.I. 1996), Brown v. Moran, 534 A.2d 180, 182 (R.I. 1987).
Under Strickland, applicants must demonstrate that counsel's performance was so deficient that it fell below an objective standard of reasonableness and that the deficiency was so prejudicial and the errors so serious that the petitioner was denied his right to a fair trial. Njie v. State, 156 A.3d 429, 433 (R.I. 2017). The Sixth Amendment standard for effective assistance of counsel, however, is '"very forgiving,"' United States v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (quoting Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)), and '"scrutiny of counsel's performance must be highly deferential."' Washington v. State, 989 A.2d 94, 99 (R.I. 2010) (quoting Strickland, 466 U.S. at 689). Moreover, when considering an ineffectiveness claim, courts allow a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Lipscomb v. State, 144 A.3d 299, 308 (R.I. 2016); Hughes v. State, 656 A.2d 971, 972 (R.I. 1995).
Additionally, in assessing counsel's efforts, a reviewing court should strive to eliminate the "distorting effects of hindsight." Strickland, 466 U.S. at 689-90; and a "heavy burden" attends a PCR applicant who claims that his attorney rendered constitutionally defective assistance. Rice v. State, 38 A.3d 9, 17 (R.I. 2012). See Padilla v. Kentucky, 559 U.S. 356, 371-72 (2010) (observing that "[s]urmounting Strickland's high bar is never an easy task"). It is, after all, only the "exceptional case[]" in which counsel is ever deemed ineffective. Taylor v. Illinois, 484 U.S. 400, 418 (1988).
Even if a petitioner can overcome Strickland's first step and demonstrate counsel's deficiency, he must also pass Strickland's second sentry and demonstrate that counsel's shortcomings prejudiced his defense such that a reasonable probability exists that but for any unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Crombe v. State, 607 A.2d 877, 878 (R.I. 1992).
The Rhode Island Supreme Court has said that substantiating such prejudice is a "prodigious burden," Evans v. Wall, 910 A.2d 801, 804 (R.I. 2006), which is "highly demanding and heavy[.]" Whitaker v. State, 199 A.3d 1021, 1027 (R.I. 2019); accord, Barros v. State, 180 A.3d 823, 829 (R.I. 2018) (citing Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)). Both of Strickland's requirements must be satisfied to mount a successful ineffectiveness claim. Njie, 156 A.2d at 443.
Alleged Failure to Investigate
Diaz claims that trial counsel's investigation overlooked someone known as "Brian," a security guard who he says was employed at the Providence Community Health Center, where Jessica worked and who had designs on her. At the PCR hearing, Diaz testified that Brian had once threatened him, prompting Diaz to obtain a gun. He says that he brought the gun when he went to meet Jessica at her mother's house because Brian may have been seen in the neighborhood. Diaz criticizes counsel for not securing copies of text messages between Jessica and Diaz allegedly confirming that she had seen Brian that day.
About two weeks earlier, Jessica had moved out of the residence she had shared with Diaz, and at trial she testified that the only reason she agreed to meet Diaz at her mother's house that evening was to retrieve her camera and makeup bag from him. (Trial Tr. at 300.) She testified that on his way to meet her, Diaz sent text messages alerting her that he was on his way and/or outside the home, as well as another text message that she read later, in which he told her, "Tell your mother I'm sorry." Id. Jessica's trial testimony spanned two days and comprised 170 transcribed pages. She never mentioned Brian. Diaz never fully identified Brian at the PCR hearing, nor did he produce any evidence from the Providence Community Health Center corroborating the employment of any security guard named Brian. Further, trial counsel had no recollection of Diaz ever telling him about anyone known as Brian (PCR Tr. at 121-22, 130-31).
Diaz criticized trial counsel for not having retained his work file, resulting in counsel's occasional inability to answer some inquiries. Counsel explained that his office had purged its files because Disciplinary Counsel advised that they could be disposed of seven years after counsel had completed representing a client. The R.I. Code of Professional Responsibility, Rule 1.15(a), G.L. 1956 § 8-14-2, and an Ethics Board Advisory Opinion (#94-9, February 23, 1994) direct lawyers to retain their civil files for seven years, but they do not address the length of time criminal work files should be kept. PCR counsel pointedly remarked that the ABA and some bar associations were considering adopting such time periods. (PCR Tr. at 180.) The Rhode Island General Assembly, however, has already contemplated and dismissed such a measure. In 2019, legislation was proposed requiring defense attorneys to continuously maintain a file if a client is serving a life term, and for various periods in other cases. The bill (2019 H 6089) never emerged from the House Judiciary Committee and was not reintroduced in subsequent years. Diaz says he "suspended" the file-retention issue (Mem. Sept. 18, 2024 at 1), but he does not state that he has abandoned it, either. If Diaz still harbors any such criticism, this Court finds it of no import. Trial counsel's memory was impressive regarding the key issues before the Court, and, in any case, he was not remiss in relying upon advice from Disciplinary Counsel.
In any event, any text messages supposedly relating to Brian are of little or no relevance here. Diaz drew the weapon when he was already in the residence, and any such messages did not in any way diminish Diaz's violence in the house or his threat to kill Jessica's parents. No one was present except Jessica and her mother. They were not armed and presented no threat to him.
Advisement of Dispositions
Diaz says that trial counsel did not apprise him of all the contemplated proposals to resolve the case short of a trial. The credible evidence does not support that assertion.
Counsel testified that prior to indictment, and while Diaz was considering a bail hearing, the prosecutor had floated a possible ten-year disposition. When counsel shared that with Diaz, he said that he had absolutely no interest in pleading guilty to the charges and would not even consider a ten-year disposition. (PCR Tr. at 94.) He was certain that neither Jessica nor Theodora would ever come to court, and that even if they did, they would not incriminate him, a persistent theme which counsel said Diaz repeated to the day of trial. (PCR Tr. at 88, 95, 97, 109.)
Both Jessica and Theodora were, however, available to testify at a bail hearing, which, for strategic reasons, counsel decided not to pursue. (PCR Tr. at 89.) They did testify before the grand jury, but that did not deter Diaz from insisting that they would balk at testifying against him at trial. Counsel said that they warned Diaz that because the women had already appeared twice, there was every likelihood that they would do so again at trial.
Later on, when trial counsel told Diaz that he and the prosecutor were discussing a possible twenty-year disposition, Diaz again expressed disinterest. Counsel testified that they simply could not disabuse Diaz of his illusory belief that Jessica and Theodora would not incriminate him. (PCR Tr. at 88, 95-97, 109, 132-33.)
At the PCR hearing, Diaz pretended that he had never heard of a proposed thirty-year offer until the February 19, 2015 Frye hearing. (PCR Tr. at 15.) The record is clear, however, that he had been alerted to that thirty-year proposal months earlier and that the Court had provided Diaz with considerable time to think about it. On October 15, 2014, the Court had explained to Diaz, in the presence of both of his attorneys, that the Court would accept a disposition of no less than thirty years of incarceration, followed by probation and a suspended, nonparolable twenty-year term. Diaz was obviously paying close attention, and he personally inquired of the Court whether the thirty-year prison term was parolable. After explaining the plea offer, including the thirty-year parolable period of incarceration, the Court gave Diaz until November 12, 2014 to decide whether or not to accept the disposition. (Tr. at 3-4, Oct. 15, 2014.) The November 12, 2014 hearing was postponed to February 19, 2015 so that Diaz could review the discovery materials with counsel and further consider the proposed disposition.
At a Frye hearing, a defendant is offered the choice of accepting a proposed disposition or opting for a trial, with full awareness of all of the potential consequences to which he may be exposed if convicted after a trial. The hearing provides a record that the defendant was apprised of the offer and is intended to shield defense counsel from a subsequent claim that his client had not been notified of the proposed disposition in the event of a greater sentence after an adverse verdict at trial. See Missouri v. Frye, 566 U.S. 134 (2012).
At the February 19, 2015 Frye proceeding, the Court reminded Diaz of the October 15, 2014 disposition offer, and Diaz expressly rejected it, opting for a trial. (Court Ex. 3, Frye Hr'g at 1-2.) Further discussion then ensued relating to the April 13 trial date, and when the Court asked Diaz if he had any questions, his only inquiry concerned release on bail, which the Court agreed to consider if the State could not try the case by April 13. (Court Ex. 3, Frye Hr'g. Tr. at 1-2, 4.)
At no time during the Frye hearing did Diaz ever say or in any way indicate that he was surprised by or had no prior knowledge of the thirty-year proposal. When shown the transcript of the Frye hearing, rather than acknowledging its accuracy, he challenged the court reporter's transcription, insisting that it was deficient and that it omitted his statement that he had not considered accepting the proposal because his attorney was still working on a twenty-year disposition (PCR Tr. at 16), a remark which dismantles Diaz's bogus claim that his attorneys had not told him that counsel and the prosecutor had, at an earlier time, contemplated a twenty-year resolution, although they had not presented it to the Court.
At the request of Diaz's PCR attorney, the court reporter reviewed her notes and has assured the Court and counsel that nothing had been omitted from the Frye hearing dialogue between Diaz and the Court. PCR counsel has accepted that representation. (See Court Exhibit 1 and PCR Tr. at 189-90, 192, 196.)
In a post-hearing memorandum, Diaz now blames his "faulty recollection" for forgetting that he had been advised by the Court of the thirty-year offer before the February 19, 2015 Frye hearing. (Mem. Sept. 16, 2024 at 1.) Given the particularized explanation of that thirty-year proposed disposition at the October 15, 2014 proceeding, which also included Diaz's personal interaction, it is inconceivable that he could have ever discarded from his memory the only in-court disposition which had been offered to him. The Court finds this proposed "forgetfulness" supposition unworthy of belief.
Likewise, the Court also considers Diaz's testimony - that he would have "definitely accepted the 20 years that [Mr. Voccola] was supposed to be working on" (PCR Tr. at 42) - as arrant fiction. The credible evidence is that Diaz never had an interest in accepting any disposition and had always persisted in his demand for a trial. (PCR Tr. at 103-04, 117.) Counsel credibly testified as follows at the PCR hearing:
"He made it clear to me he wanted a trial. He made it clear to me he didn't want to take any deal. He made it clear to me he didn't want to take the 30 years. He made it clear to me he didn't want to take ten years. * * *
"[W]hen [the prosecutor] told me ten years, he didn't want to hear it. Didn't want to hear it. When [the prosecutor] told me 20, before it got to Judge Krause, [he] didn't want to hear it. Went to him, begged him, told him - - did everything I could to help . . . Every single thing. Met with the family. Met with them. Talked to them. Any time anybody had wanted to speak to me, I talked to them. I bent over backwards to see him. Did every single thing I could to try to help him, then it got to the point he didn't want to hear it. Didn't want to hear it. He wanted to go to trial. . . . When the 30 years was rejected, we knew we had to go to trial." (PCR Tr. at 142-43.)
The Court finds, beyond peradventure, that from the preindictment stage to the time of trial, Diaz's counsel never withheld any disposition information from him.
Diaz's unsupported complaint that his trial attorneys essentially ignored him is also far afield from reality. Counsel testified that they met with Diaz several times. (PCR Tr. at 92-94.) The ACI records of Diaz's visitors from June 16, 2014 to the April 13, 2015 trial include as many as fourteen meetings, six with Mr. Voccola and Mr. Connors, and eight with three of their associate attorneys, not counting the occasions when counsel also may have met with him when they had signed in to visit other clients and made the rounds to speak with additional clients, as well as conferring with Diaz at the courthouse, along with telephone conversations with him. (PCR Ex. 4; PCR Tr. at 172.) Of the six meetings immediately preceding trial (February 13 through April 8, 2015), five were with Mr. Voccola or Mr. Connors.
Decision Not to Testify
Diaz professes that he had intended to testify at trial but that his lawyers stifled that option. That claim is positively rebutted by the record in this case.
Although "of relatively recent origin," the right of an accused to testify in his own defense is now a well-regarded fundamental right. Nix v. Whiteside, 475 U.S. 157, 164 (1986); State v. Feole, 797 A.2d 1059, 1063-64 (R.I. 2002). There is no justification today for a rule that denies an accused the opportunity to offer his own testimony. Rock v. Arkansas, 483 U.S. 44, 52 (1987).
See G.L. 1956 § 12-17-9: "No respondent in a criminal prosecution, offering himself or herself as a witness, shall be excluded from testifying because he or she is a respondent[.]"
On the other hand, the right to testify can be waived by a defendant, and counsel bears the primary and ethical responsibility of informing and advising the client of that option. Casiano-Jimenez v. United States, 817 F.3d 816, 820 (1st Cir. 2016); Feole, 797 A.2d at 1064. Counsel is "obliged to explain that the decision to testify or not belongs exclusively to the defendant," Smith v. Dickhaut, 836 F.3d 97, 104 (1st Cir. 2016), because '"the right to testify may not be waived by counsel acting alone."' Casiano-Jimenez, 817 F.3d at 820 (quoting Owens v. United States, 483 F.3d 48, 58 (1st Cir. 2007). After all, "it is the client who is the master of his or her own defense." State v. Morel-Vargas, 273 A.3d 661, 675 (Conn. 2022).
The First Circuit has advised that "no specific requirements govern the nature or content of those essential conversations between counsel and his or her client." Smith, 836 F.3d at 104. '"There are no magic words; the inquiry is whether 'some sort of conversation' has occurred between the attorney and his client, such that 'the client can make a knowing and informed decision' regarding whether to testify in his own defense."' Id. (quoting Casiano-Jimenez, 817 F.3d at 820 and Rock, 483 U.S. at 51, 53 n.10). Counsel's advice should include an explanation to his client of the "strategic ramifications" of whether or not to testify. Casiano-Jimenez, 817 F.3d at 820. If trial counsel has complied with those responsibilities, "courts generally will assume that a defendant who has not taken the stand has knowingly and voluntarily waived his right to testify." Feole, 797 A.2d at 1064.
Although Rhode Island has not adopted a rule which obliges a trial justice to verify a defendant's waiver of his right to testify, Brennan v. Vose, 764 A.2d 168, 171-72 (R.I. 2001), followed in Sifuentes v. State, 43 A.3d 49, 55 n.9 (R.I. 2012), nothing in Brennan prevents a trial justice from addressing the defendant to ensure that he or she appreciates their options, and the First Circuit has observed that federal trial judges commonly do so. United States v. Tull-Abreu, 921 F.3d 294, 302-03 (1st Cir. 2019). The Brennan Court chose to follow a majority of jurisdictions which, in 2001, did not expect trial judges to engage in such a dialogue with a defendant, but the Court also noted, without criticism, that other courts, both federal and state, have endorsed such a procedure. Id. at 172 (collecting cases).
The gap between the two points of view appears to have narrowed, as there has been some attrition from the majority's position. The First Circuit, which Brennan identified as among the majority of the courts not inviting trial courts to make such an inquiry, has nevertheless noted that "it is not uncommon for district judges to make sure defendants . . . are fully apprised of their testimonial rights." Tull-Abreu, 921 F.3d at 302-03; followed, United States v. Anderson, 1 F.4th 1244, 1257 (11th Cir. 2021).
The Wisconsin Supreme Court, included in Brennan's majority group, has also retreated from that position. "[A]s a practical matter, we recognize that conducting an on-the-record colloquy 'is the clearest and most efficient means' of ensuring that the defendant has validly waived his or her right not to testify 'and of preserving and documenting that valid waiver for purposes of appeal and postconviction motions." State v. Denson, 799 N.W.2d 831, 845 (Wis. 2011) (emphasis added) (internal quotations omitted).
In State v. Ford, 82 A.3d 75, 79 (Me. 2013), the Maine Supreme Court found it unsettling that the trial judge had accepted counsel's representation, without confirmation from his client, that the defendant had elected not to testify. The court said that "the best practice is for the trial court to conduct a colloquy with the defendant individually on the record to confirm that (1) he is aware of his absolute right to testify and his right to remain silent, and that no person may deprive him of these rights or make the decision for him to forgo one and elect the other; and (2) that his decision is knowing and voluntary. Such an inquiry of represented defendants would add a second layer of assurance that elections not to testify, or to remain silent, are knowingly undertaken."
Notably, the United States Supreme Court has offered no settled precedent on this issue. See People v. Knapp, 181 N.E.3d 875, 885 (Ill. 2020); Hartsfield v. Dorethy, 949 F.3d 307, 316 (7th Cir. 2020) (citing Jenkins v. Bergeron, 824 F.3d 148, 153 (1st Cir. 2016)). Courts at both ends of the spectrum, however, agree that trial judges should have such a dialogue if there is '"some indication that either the defendant actually wants to testify and is being prevented from doing so or that there is a conflict between the defendant and his lawyer on the matter."' United States v. Muslim, 944 F.3d 154, 163 (4th Cir. 2019) (quoting United States v. Manjarrez, 258 F.3d 618, 624 (7th Cir. 2001); Thomas v. State, 293 A.3d 139, 144 (Del. 2023) (stating that the trial court need not inquire into the defendant's decision not to testify "unless there is some indication" that he may have been prevented from exercising his right to testify; Morel-Vargas, 273 A.3d at 673-74 (no duty to directly inquire of the defendant "[i]n the absence of evidence of a problem in the attorney-client relationship")).
In view of the inconsistency between Diaz's contemplated testimony after the State had concluded its case, and his change of mind after conferring with counsel during an extended recess, this Court, along the lines of Denson and Ford, did conduct such a dialogue with Diaz, see infra, ensuring that his decision not to testify was, at bottom, his own election.
At the hearing, PCR counsel questioned the necessity of that dialogue. (PCR hearing at 186-89.)
* * *
Throughout their extended representation of Diaz, his trial attorneys had believed, with Diaz's concurrence, that he did not intend to testify. (PCR Tr. at 113, 143, 152, 153.) Counsel had determined and had explained to Diaz that he would not be a good witness because he would be unable to withstand cross-examination. Id. They even put Diaz through some mock cross-examination to ensure that their concerns were not misplaced. (PCR Tr. at 151-52, 157.) At the PCR hearing, counsel testified that Diaz would have been "destroyed on the witness stand." (PCR Tr. at 184.)
As the State was nearing the end of its case, Diaz unexpectedly told counsel that he was inclined to testify. After the State had completed its presentation, the Court asked counsel if Diaz intended to testify. Surprised by their client's unanticipated change of mind, counsel advised the Court that Diaz would testify but requested a recess to confer with him, as neither trial attorney had expected such a sudden departure.
Had Diaz ultimately insisted upon testifying, counsel said that he would have requested time within which to prepare him. Had those circumstances been presented, the Court would have granted a reasonable period to accomplish that preparation.
Diaz claims that during that forty-five-minute recess, counsel overbore his will to testify and had "taken that option away from [him]." (Mem. Sept. 16, 2024 at 2-3.) The record contradicts that claim in all manner of ways.
After the recess, the following colloquy ensued:
"THE COURT: All right. A good deal of time has gone by since we last met and since the defense indicated they wished to present witnesses. I take it there has been a change of mind.
"MR. CONNORS: That's correct, Your Honor.
"THE COURT: Would you indicate what the plan is, please?
"MR. CONNORS: Yes. The plan would be to rest when the jury gets back, Your Honor.
"THE COURT: Mr. Diaz, I assume that you understand that you have a perfect right to testify in this case.
"THE DEFENDANT: I do.
"THE COURT: I know that you've been talking with your lawyers, not just today, but on a series of days and weeks prior to trial about this decision, and I take it you have now come to a decision as to whether you wish to testify or not testify. You've made that decision.
"THE DEFENDANT: Yes, I did - - do.
"THE COURT: Yes, you do what?
"THE DEFENDANT: Your Honor. Yes, I do, Your Honor.
"THE COURT: You wish to testify?
"THE WITNESS: No.
"THE COURT: Well, I don't understand when you say you wish to do. So have you made a decision as to whether you're going to get up on that witness stand and testify?
"THE DEFENDANT: I am not going to testify.
"THE COURT: And you've made that decision after conferring with your lawyers?
"THE DEFENDANT: Yes, I did.
"THE COURT: You understand that it is your decision, not your lawyers' decision.
"THE DEFENDANT: I understand.
"THE COURT: You certainly should listen to their advice, but in the end, the bottom line is it has to be your decision, not theirs. You understand that.
"THE DEFENDANT: I do. I understand.
"THE COURT: And I take it you have made that decision.
"THE DEFENDANT: I made the decision by not testifying.
"THE COURT: Your decision is not to testify. Am I correct?
"THE DEFENDANT: Yes.
"THE COURT: Is that your final decision?
"THE DEFENDANT: It is my final decision, Your Honor." (Trial Tr. at 527-29.)
At the PCR hearing Diaz acknowledged that he had been truthful during that dialogue. (PCR Tr. at 22-23.) That concession, by itself, dissolves Diaz's claim that trial counsel prevented him from testifying. But there is much more.
* * *
After that colloquy, both parties rested their cases, and the Court adjourned for the day. The following morning, with Diaz present, the Court and counsel reviewed some proposed jury charges in open court. Diaz had had the rest of the previous afternoon and an entire evening to reconsider his decision not to testify, and on two occasions during that morning's discussion, the Court mentioned that on the previous day there had been references to Diaz's potential testimony, until "[y]esterday afternoon when we recessed, and the defendant had indicated that he did not intend to testify[.]" (Trial Tr. at 532, 538.) Although presented with ample opportunity during that discussion, Diaz, who had never been shy about personally addressing the Court, easily could have reopened the prior day's dialogue and said that he had changed his mind and wanted to testify.
Other occasions subsequently arose when Diaz could have directly told the Court that he had wanted to testify. Just eleven days later, at the April 28, 2015 hearing on his motion for a new trial, Diaz never complained that he had been unable to testify at trial.
At the sentencing hearing on July 1, 2015, during allocation, Diaz said he wanted to "explain everything," and the Court told him to "take all the time you want. This is your opportunity to make whatever statement you want." Rather than complaining that his attorneys had forced him to abandon his intention to testify, Diaz said, "I also know that I have the right to stand up and defend myself, and I didn't do it. And the reason why I didn't do it, because I feel really sorry." (Sent. Tr. at 16-21.)
Furthermore, Diaz never disclosed to Kevin Mulcahey, a senior adult probation officer who had prepared the presentence report, that his lawyers had nullified his desire to testify. Notably, trial counsel was not present when Diaz spoke with Mulcahey.
Two years later, on November 21, 2017, when the Court heard Diaz's motion to reduce his sentence, Diaz was represented by an Assistant Public Defender. Trial counsel was not present, and another clear opportunity was presented to Diaz to tell the Court that he had wanted to testify at trial. (Rule 35 Hr'g Tr. at 5-7, 10-11, Nov. 21, 2017, Ex. H to State's Mem. of Sept. 16, 2024.) Instead, Diaz admitted: "Your Honor, I will be very honest with you, and like I said to my previous lawyer, my trial lawyer, I told them that [I'll] not be testifying on the stand." Id. at 11.
* * *
Diaz additionally asserts that counsel told him he need not testify because Mr. Connors had told him that "even in his long-time career he [n]ever see[n] so much contradiction between those witness[es]." (PCR Tr. at 23.) Mr. Voccola said that the cross-examinations had been effective and that "they were done as well as anyone could possibly do them," but he testified that he had never heard Mr. Connors say anything like that. (PCR Tr. at 166, 169.) In any event, counsel said that the cross-examination of Jessica and Theodora was not the reason they had recommended that Diaz not testify (id. at 169), as counsel had always believed, and Diaz had also agreed, that he simply would have been a very poor witness:
"He rambled - it was the type of person where he couldn't be controlled. It would explode. In other words, the direct may have . . . gone over smooth, but as soon as it came time for cross-examination, the testimony, I believe, and Mr. Connors concurred, would fall apart. *** [W]e met with him. We talked with him . . . And we decided no, he shouldn't testify . . . He agreed because he felt that he wouldn't be able to help himself, or that it could . . . backfire if he testified . . . Some individuals cannot withstand the rigors of cross-examination, some can." (PCR Tr. at 156-58.)
See LaFave, Criminal Procedure (4th ed.), § 24.5(a) at 543, quoting Wilson v. United States, 149 U.S. 60 (1893):
"It is not every one [sic] who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him."See State v. Lopez, 149 A.3d 459, 464 (R.I. 2016) ("When a defendant in a criminal case elects to testify on his own behalf, he can expect rigorous cross-examination from the prosecution that may well serve as the final persuasive factor convincing the jury of his guilt.); State v. Mattatall, 603 A.2d 1098, 1109 (R.I. 1992) ("[W]hen a defendant elects to testify, he runs the very real risk that if disbelieved, the trier of fact may conclude that the opposite of his testimony is the truth.").
Diaz testified that because of the witnesses' inconsistences, trial counsel had told him that "the probability was very high that we [would] win the case." (PCR Tr. at 23.) Mr. Voccola dismissed that assertion, testifying credibly that, from day one, counsel had made it "unequivocally clear" to Diaz that the State had a "strong case" and that they had told him "[m]any times" that it was a "difficult case." (PCR Tr. at 91-93.) "I made that expressly clear to Francisco that I did not think we were going to win if we went to trial." Id. at 108.
* * *
This Court also rejects any notion that Diaz somehow lacked the acuity or capacity at any of the several referenced proceedings to voice the criticism he now levels at trial counsel. In the presentence report, Mr. Mulcahey recounted that Diaz had obtained his GED and had bragged that he had been an "excellent student" and had been awarded "student of the month" accolades on multiple occasions.
Lastly, the Court dismisses any suggestion that Diaz's professed desire to testify was somehow dampened by Pastor Fernandez. Narda Rosario, who acknowledged her extremely close relationship with Diaz and his mother, said that the pastor had been recruited by counsel in the courthouse hallway during the recess to help persuade Diaz not to testify. However, there was no opportunity for him to have spoken with Diaz, who was in the cellblock and was immediately returned to the ACI after Court was adjourned. The ACI visitor logs do not reflect that he had visited Diaz that evening, and he would have been unable to speak with Diaz the next morning at the courthouse, either. Moreover, Diaz testified that only Rosario, his mother, and his attorneys had ever visited him at the ACI. (PCR Tr. at 21.)
Conclusion
The short of it is that after the State had completed its case, Diaz resolutely assured the Court that he had independently decided not to testify. Thereafter, during numerous opportunities he never told the Court that he had been denied an opportunity to testify. Very much to the contrary, he explained more than once why he had decided not to testify, without ever complaining of any overreaching by trial counsel. If Diaz's desire to testify on his own behalf was as strong and unrelenting as he now claims, he would not have withheld that charge for the past ten years.
Withal, this Court finds Diaz's PCR complaints baseless and rejects any intimation that his trial attorneys provided him with substandard representation prior to or during trial. Their efforts unquestionably fit easily within Strickland's presumptive scope of "reasonable professional assistance [and] sound trial strategy." Strickland, 466 U.S. at 689; Hughes, 656 A.2d at 972. They afforded Diaz as able a defense as possible under extremely challenging circumstances and in the face of forceful evidence of guilt.
Finally, as a front row observer, this Court finds Diaz's credibility substantially lacking. During cross-examination at the PCR hearing, he was frequently evasive, often fencing with the prosecutor and offering answers unresponsive to questions. This Court has already referenced multiple other instances reflecting Diaz's unreliable and specious offerings.
Trial counsel testified that the principal reason they recommended that Diaz not testify was because he would be a problematic witness and would be unable to withstand cross-examination. From this Court's vantage point, counsel's assessment was entirely accurate.
PCR counsel writes that he personally disagrees with the trial lawyers' determination that Diaz would have made a poor witness. (Mem. Sept. 16, 2024 at 3.) He had no connection whatsoever with Diaz a decade ago, however, and was wholly unfamiliar with and unaware of Diaz's frailties and weaknesses which two veteran defense attorneys had, first hand, carefully assessed. Furthermore, PCR counsel's assumption that Diaz would have been a good witness is not only impossibly attenuated from the circumstances ten years ago, it is also markedly antithetical to Strickland's admonition to avoid the "distorting effects of hindsight." Strickland v. Washington, 466 U.S. 668, 689-90 (1984); Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006).
Scaling Strickland's heights is a Sisyphean effort, and it is only the "exceptional case" where counsel can plant the flag of ineffectiveness. Taylor, 484 U.S. at 418. This is definitely not one of those singular cases. Diaz gains no toe hold in this undertaking, and he has failed to carry the burden to surmount even the first step of the Strickland analysis. This Court unreservedly finds that trial counsel's efforts were in no way deficient. Accordingly, the Court need go no further.
See Washington v. State, 989 A.2d 94, 105 (R.I. 2010) ("Because we are satisfied that applicant did not establish the first prong of the Strickland test on this issue, we need not discuss whether his defense was prejudiced by the absence of his live testimony before the jury, such that the outcome of the trial would have differed."); Barros v. State, 180 A.3d 823, 829 (R.I. 2018) (repeating the rule that '"[u]nless a defendant makes both showings, it cannot be said that the conviction or . . . sentence resulted from a breakdown in the adversary process that renders the result unreliable'") (quoting Young v. State, 877 A.2d 625, 629 (R.I. 2005); accord, Njie v. State, 156 A.3d 429, 443 (R.I. 2017).
Diaz's application for postconviction relief is hereby denied. Judgment shall enter in favor of the State of Rhode Island.