Opinion
14-P-1674
03-24-2017
COMMONWEALTH v. Charles N. DIORIO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Norfolk County Superior Court, the defendant, Charles N. Diorio, was convicted of armed kidnapping, intimidation of a witness, carrying a firearm without a license, furnishing a false name, and possessing ammunition without a firearm identification card. On appeal he raises several issues, most notably contending that there was an error in the jury instructions and that the trial judge abused her discretion in allowing evidence from offenses committed in Suffolk County, a different jurisdiction from the Norfolk County offenses at issue here. We affirm.
The defendant raises seven further claims pursuant to Commonwealth v. Moffett , 383 Mass. 201 (1981).
Background . The defendant, who had an outstanding California parole warrant, used a series of aliases during his time in Massachusetts. He lived in a rooming house in Chelsea, and between September, 2010, and May, 2011, dated the victim of the crimes that led to the present appeal. The victim moved into an apartment in Braintree in January, 2011, and shortly thereafter bought a firearm at the defendant's urging. The victim ended their relationship in May, 2011, and returned to her apartment to discover that the defendant had removed all of his belongings, except for a pair of shoes. She did not look for the firearm that the defendant had urged her to purchase.
1. Events in Suffolk County . On the night of July 2, 2011, a resident-employee of the rooming house where the defendant lived in Chelsea saw the defendant holding a handgun outside of his room. He told the defendant, whom he knew by a different name, that he was going to call the police, and, while he was walking away, the defendant fired three shots at him, striking him once in the arm. The victim of this shooting called the police, who responded quickly, recovered shell casings and a holster for a semiautomatic firearm, and spoke to a nearby witness who identified the defendant as a man who had walked by his vehicle while cocking a silver handgun. Police recovered a live round of ammunition next to that car of the same type as the shell casings found inside. A different resident of the rooming house also recovered the defendant's wallet, which was given to police and identified the defendant by his true name, Charles Diorio.
These events do not form the basis for the convictions at issue here, but they preceded in time the events that do.
A 9 millimeter Winchester Luger.
2. Events in Norfolk County . Around the time that Chelsea police were investigating the area around the rooming house shooting, the defendant arrived at his former girl friend's apartment in Braintree. When she answered the door, he forced his way in and was "agitated." She testified that the defendant pointed the pistol that she had purchased at her and told her that he had spent much time thinking about killing her. The defendant remained at the apartment, making her lie on the bed with him while keeping one arm around her neck and the other holding the pistol. He told her that he had "messed up" in Chelsea. The defendant eventually fell asleep, and the victim was able to escape and had a friend drive her to the Braintree police station. The defendant was later arrested while exiting the victim's apartment building, and inside the apartment police found a latex glove, the victim's pistol that she had seen the defendant possess, a fully loaded magazine not loaded into the firearm, and four additional loose bullets.
Discussion . 1. Jury instructions . The defendant contends that the judge's instruction to the jury regarding the witness intimidation charge constructively amended that indictment. As there was no objection to the jury instruction at trial, we review to determine whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Lavoie , 464 Mass. 83, 89 (2013).
The defendant's essential argument is that the judge's instruction that the jury must find that the defendant intimidated "a witness or potential witness at any stage of a criminal investigation" was constructively different than the indictment returned by the grand jury, which charged the defendant as having intimidated a "potential witness ... in any stage of a trial, grand jury or other criminal proceeding."
We are unable to discern any significant discrepancy between the indictment and the judge's jury instruction, certainly not to the extent that it created a substantial risk of a miscarriage of justice. The judge's use of the language "at any stage of a criminal investigation," corresponded to the language of the indictment. As such, we conclude that no risk of a miscarriage of justice exists on these grounds.
2. Extrajurisdictional evidence . The defendant also argues that the judge abused her discretion in admitting evidence relating to the events that took place in Chelsea. The evidence included descriptions of the shooting at the rooming house and ballistics evidence that indicated the shell casings found in Chelsea were fired from the kidnapping victim's pistol. The defendant contends that this evidence amounts to impermissible character evidence, the prejudicial effect of which substantially outweighed its probative value. In response, the Commonwealth argues that this evidence was properly admitted as relevant to the defendant's motive, intent, and opportunity.
In our review for abuse of discretion, "[w]e defer to the judge's exercise of discretion unless the judge has made ‘a clear error of judgment in weighing’ the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives.' " Commonwealth v. Alleyne , 474 Mass. 771, 779 (2016), quoting from L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014). "Questions of admissibility, probative value, and unfair prejudice are left to the sound discretion of the trial judge, and will not be overturned absent clear error." Commonwealth v. Philbrook , 475 Mass. 20, 26 (2016).
We conclude that the judge's decision to allow limited testimony concerning some of the events that took place in Chelsea was well within her discretion. Evidence relevant to a defendant's motive has long been recognized as admissible in Massachusetts, and it is within the judge's discretion to consider and weigh the probative value versus any prejudicial effect of the evidence. Commonwealth v. Maldonado , 429 Mass. 502, 504 (1999). The evidence of the events that took place in Chelsea provided context for the defendant's statements to his former girl friend that he had "messed up in Chelsea" and "had to go." See Philbrook , supra . It also provided the jury with evidence of the defendant's motive behind kidnapping his former girl friend, which was particularly relevant as it clarified that the kidnapping did not occur in a vacuum. The judge weighed the probative value of the evidence offered against its possible prejudicial effect, properly limited portions of it, and gave appropriate limiting instructions.
In addition, the ballistics evidence recovered from Chelsea was particularly relevant in order to prove the firearm-based offenses at issue here. The firearm found in the defendant's former girl friend's apartment in Braintree matched bullet casings found in Chelsea, and as the firearm was not found on the defendant's person nor was it registered to him, it was necessary to admit this evidence to establish the defendant's possession of the weapon. We conclude that the judge's evidentiary decisions were not an abuse of her discretion.
3. Moffett claims . We have considered the defendant's seven additional claims brought pursuant to Commonwealth v. Moffett and reject each of them. We briefly address some of the arguments.
The defendant first argues that allowing evidence of each Suffolk indictment violated his right to counsel at every "critical stage" of the criminal process. The defendant was represented by counsel at this trial, and his argument that not having additional counsel representing his interests for the Suffolk indictments violated his constitutional rights is meritless.
Next, the defendant contends that the judge erred in admitting (1) a photograph of him used in a photo array following the events in Chelsea and (2) evidence seized from his room in Chelsea. His arguments that the photograph was unnecessarily suggestive and that the evidence seized from his room was the result of an unreasonable search were never raised before this appeal, and have thus been waived. See Commonwealth v. Cote , 386 Mass. 354, 358 n.6 (1982).
The evidence seized from the defendant's room in Chelsea and offered in evidence at trial is as follows: two shell casings, a gun holster, the defendant's wallet with his California identification cards, and partially empty ammunition boxes.
The defendant further argues that the judge violated his right to self-representation by not allowing him to make a separate, additional opening statement after his counsel's. He presents no compelling argument that his inability to supplement his counsel's opening statement violated his constitutional rights. There was no error.
Next, the defendant claims that the admission of evidence that he was a fugitive from justice "irremediably prejudic[ed] his defense." The judge considered the defendant's motion in limine to exclude this evidence and rejected it on the grounds that the evidence was relevant to motive. This was a reasonable exercise of the judge's discretion, and the court safeguarded its ruling with a proper limiting instruction to the jury directing them to consider this evidence for purposes of motive only. See Philbrook , supra . Again, we discern no error.
To the extent that we have not addressed other issues that have been raised by the defendant, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
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Judgments affirmed .