Wednesday, November 29, 2006

Hector Torres

The second absence that Diaz contends should have been raised on appeal is

his absence from a discussion regarding Hector Torres, a criminal who stated that

he had information regarding the jailhouse informant that identified Diaz as the

actual shooter in the murder of Joseph Nagy. The record shows that Diaz was

absent from the courtroom only because he was not yet ready to return from the

recess that Diaz had requested. During Diaz's absence, the trial court discussed

with the prosecution and Diaz's standby counsel the appointment of new counsel

to represent Torres regarding his request for a plea deal with the State. The

prosecution stated that Torres likely possessed only inculpatory information and, if

so, there would be no plea agreement with Torres. The prosecution also stated

that, if Torres had any exculpatory information that came to light during his

request for a plea agreement, Torres would be made available for Diaz to examine

all exculpatory information. During this portion of the trial, Diaz's presence would

have been useless because, at that time, the trial court did not suspect that Torres

held any information that would have been beneficial to Diaz. "[T]he benefit" of

Diaz's presence would have been "but a shadow." Snyder v. Massachusetts, 291

U.S. 97, 106-07, 54 S. Ct. 330, 332 (1934), overruled on other grounds Malloy v.

Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964).

When the trial court later questioned Torres's court-appointed attorney

regarding the information that Torres possessed, Diaz's presence would not have

provided any value. The attorney assigned to Torres told the court that "based on

[his] interview with Mr. Torres, he has nothing that would put the State under any

obligation to disclose any information under ... Brady v. Maryland. Nor does he

have any information that would in any way be considered exculpatory for the

defense." The trial judge confirmed that she would not allow a plea by Torres in

exchange for inculpatory information regarding the murder of Joseph Nagy. When

Diaz's standby counsel raised the issue whether Torres had "information about any

witness, specifically, Ralph Gajus[, the jailhouse informant who testified that Diaz

was the shooter,] or others that would tend to be favorable to" Diaz, the attorney

representing Torres testified that there was "absolutely no exculpatory evidence."

The only individuals with whom Torres sought to converse were prosecutors, and

the trial court flatly refused Torres's overtures for a plea agreement in return for

information that would tie Diaz to the murder of Joseph Nagy. It is clear,

therefore, that Diaz's appellate counsel was not ineffective for failure to raise the

issue of Diaz's absence at the proceedings regarding Hector Torres.

The next absence that Diaz contends his appellate counsel should have

pursued was Diaz's absence during a conversation between the trial court and the

prosecution regarding the schedule for closing arguments. During that colloquy,

the prosecution requested an hour for its closing argument and stated that Diaz

should receive at least the same amount of time as the prosecution, but the court

reserved its decision and later revisited this issue. When the trial court raised the

issue with both the prosecution and Diaz, the prosecution then requested 45

minutes for closing and Diaz asked for only one or two minutes. Any flaw in

Diaz's earlier absence was cured by that later colloquy. Diaz's appellate counsel

was not ineffective for failure to raise this issue.

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