By Stella Lorence
BU News Service
BOSTON — The Massachusetts Supreme Judicial Court began hearing arguments Friday in a motion for a new trial for a man convicted of murder more than 13 years ago in Roslindale.
A jury at the U.S. District Court sentenced David Nicanor Diaz Perez to life in prison after finding him guilty of first-degree murder and unlawful possession of a firearm in June 2007, according to the Commonwealth’s brief. The conviction came after a mistrial the year before.
Perez was arrested in 2003 outside the Amvets Post on Belgrade Avenue, where he was attending a baby shower, after police said he fatally shot 19-year-old Quirico Romero. Analdi Sanchez, a friend of Perez’s, testified in the 2006 trial that he was with Perez inside Amvets Hall for the baby shower and testified to Perez’s innocence
According to the case briefs, one of Romero’s friends, Kenneth Nova, was standing outside the front of the hall drinking a beer shortly after the shower let out around midnight. Perez made a “confrontational comment” to Nova, which eventually resulted in a four-person brawl that included Perez. Perez pulled out a gun and fired once in the air, then two more times, presumably towards the victim and his friend, who had fled after the initial shot.
Perez also faced additional concurrent sentences for unlawful possession of a firearm, according to the Commonwealth’s brief.
Perez filed a motion for a new trial to the Supreme Judicial Court in April 2017, after the appeal he filed following his 2007 trial was suspended due to “apparent transcript issues,” according to the defendant’s brief. The appeal was returned to the lower court, where a trial judge ruled in September 2018 that Perez was “entitled to a new trial.”
Perez’s motion for a new trial was based on “ineffective assistance” from trial counsel Edna James. Specifically, James did not use Perez’s friend, Analdi Sanchez, as a witness, according to Perez’s new representative Robert Shaw. In the 2006 trial, Sanchez testified he had been with Perez inside a building where they had been attending a baby shower when they heard shots fired outside.
There was disagreement about both the importance of Sanchez’s potential testimony, as well as his absence in the second trial. Cailin Campbell, a representative for the Commonwealth, said Sanchez’s answers “were mostly ‘I don’t remember,’” in his first testimony.
Shaw said he thought Sanchez was “actually a compelling witness.”
There were also disagreements about potential negligence from James and how much the “apparent transcript issues” account for such negligence.
Perez claimed James failed to conduct any investigation into Sanchez, which directly translated into her failure to call him as a witness, according to Shaw. Although James knew that Sanchez testified in the first trial, she made no effort to contact him or Perez’s attorney from the first trial to find out what he had testified, focusing instead on obtaining transcripts from the first trial, according to the Commonwealth’s brief.
“I think she did little to nothing, quite frankly,” Shaw said.
James testified in a June 2018 evidentiary hearing she had been “overwhelmed” by the small pieces of transcripts coming in, especially after wrongly assuming that her motion to continue the trial would be accepted, according to the facts of the case.
“You can almost hear her voice testifying about all these transcripts, all these inconsistencies,” Justice David Lowry said Friday. “I imagine she would’ve gotten the continuance if she had explained the situation well.”
“At the point that [James] decides not to call [Sanchez], she’s had the transcripts for nine days,” Campbell said. “It’s not as if its a voluminous transcript with hundreds of pages.”
Campbell also argued that the content of the transcripts would not have changed James’ defense.
“This was not an easy case for Ms. James,” Shaw said. “When you look at the certifications of the transcripts, a lot are for the first day of the trial.”
Gaziano also pointed out that James testified inconsistently at the evidentiary hearing in 2018. The motion for a new trial took so long partially because Perez cycled through five post-conviction attorneys before settling on Shaw.
“I don’t think the Commonwealth should be faulted for Attorney James’s memory,” Campbell said, arguing against a new trial.
