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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