Commonwealth v. Bryan Diaz.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

                       COMMONWEALTH OF MASSACHUSETTS

                                 APPEALS COURT

                                                  23-P-1032

                                  COMMONWEALTH

                                       vs.

                                  BRYAN DIAZ.

               MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

       After a jury trial in the Superior Court, the defendant was

 convicted of armed assault with intent to murder, G. L. c. 265,

 § 18 (b) (2014); aggravated assault and battery by means of a

 dangerous weapon resulting in serious bodily injury, G. L.

 c. 265, § 15A (c) (i); assault and battery by discharging a

 firearm, G. L. c. 265, § 15E (2015); unlawful possession of a

 loaded firearm, G. L. c. 269, § 10 (n) (2015); and unlawful

 possession of a firearm, G. L. c. 269, § 10 (a) (2015).1               On

 appeal, the defendant argues that the judge abused her

 discretion by admitting prejudicial testimony from the




       1The defendant was also found guilty of unlawful possession
 of ammunition. That charge was dismissed at sentencing at the
 request of the Commonwealth "as merged."
Commonwealth's gang expert, Sergeant Stephen Roche of the

Worcester police department.    We affirm the convictions.

    Background.     The following facts are not disputed.    The

defendant was indicted in connection with a 2018 drive-by

shooting in Worcester.    Although the police had some evidence

that the defendant was the shooter, the culprit's identity

remained a live issue at the time of trial.

    The Commonwealth's theory of the case included evidence of

the defendant's motive to commit the crimes.    To that end, the

prosecution moved in limine to introduce Roche's expert opinion

evidence to show that the defendant and the victim, Michael

Diaz, were members of rival gangs, and to support the

Commonwealth's argument that the shooting was part of a spike in

local gang-related violence.    The defendant opposed the

Commonwealth's motion and cross-moved to exclude evidence of his

gang membership, arguing that the proposed testimony was

inadmissible propensity evidence.

    The judge conducted a voir dire to assess the foundation of

Roche's opinions.    On direct examination, Roche testified that

he had been a Worcester police officer for thirty-four years and

had worked in the gang unit for twenty-two years.    He also

testified that the members of the gang unit identify local gang

members using "a ten[-]point system," under which certain

evidence of gang membership -- for example, a person's self-


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identification as a gang member -- is valued in "points" and

contributes to an overall score.       An individual who scores ten

or more points is deemed to be an active gang member.

    At the motion hearing, Roche testified to his familiarity

with local gangs and gang rivalries in Worcester, and to the

increase in gang-related violence in Worcester in the period

leading up to the shooting.   In particular, he testified that

the Kilby and MOB gangs were rivals, and that rival gangs

engaged in frequent retaliation against one another.

    Roche opined that the defendant belonged to the Kilby gang,

and that the victim was a member of the MOB gang; this opinion

relied on verification performed in 2014 by another member of

the Worcester gang unit, Officer Thomas Duffy, using the ten-

point system noted above.   Moreover, Roche's testimony confirmed

his awareness that both the defendant and the victim had

previously "self-identified" as members of those gangs to Duffy

and, separately, to staff at the house of correction.

Specifically, Roche testified that a corrections officer, John

Sables, told him that the defendant and the victim confirmed

their memberships in the Kilby and MOB gangs, respectively, as

part of each individual's intake at the house of correction in




                                   3
2014.2   At the hearing, the defendant did not challenge the

validity of the ten-point system Roche described in his

testimony, nor -- with one exception as to hearsay that the

defendant appears to have withdrawn -- did he object to the

substance of any of Roche's testimony.

     At the conclusion of the voir dire, the judge allowed the

Commonwealth's motion to present Roche's expert testimony,

subject to carefully-tailored limitations set forth in a

detailed written order.   Notably, the judge ruled that Roche

could testify to his opinion that the defendant and the victim

belonged to rival gangs, but that the Commonwealth could not

elicit from him any testimony about the methodology on which he

relied in forming that opinion, unless the issue was raised by

the defendant on cross-examination.   The judge explicitly stated

that, at any party's request, she would give limiting

instructions that the only permissible use of the expert

testimony was to motive, and at trial, she did so.   Roche

testified in accordance with the judge's order.3




     2 Roche was not asked about the context in which the
defendant and the victim self-identified to Duffy. He did,
however, testify that correctional personnel collect information
from detainees about their gang affiliations to ensure the jail
does not house rival gang members together.

     3 At trial, the defendant did not discuss the methodology
underpinning Roche's opinion.



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    Discussion.    The defendant argues that Roche's expert

testimony was inadmissible on various grounds.       We address each

in turn.

    1.     Daubert-Lanigan challenge to expert testimony.     The

defendant's challenge to the reliability of the "ten-point"

system Roche used to form his opinion on the defendant's gang

membership was not raised below.       With no record developed to

support it, the argument fails.    See Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 589 (1993); Commonwealth v.

Lanigan, 419 Mass. 15, 24 (1994); Commonwealth v. Coutu, 88

Mass. App. Ct. 686, 693-694 (2015).

    We are not persuaded by the defendant's related arguments.

First, we do not agree that Roche's opinion lacked an adequate

foundation.   It is well settled that "an expert's opinion must

be based on (1) facts within his or her direct personal

knowledge, (2) evidence already in the record, or (3) facts or

data not in evidence if the facts or data are independently

admissible in evidence and are a permissible basis for an expert

to consider in formulating an opinion" (emphasis added).         Matter

of P.R., 488 Mass. 136, 142 (2021).      These are disjunctive

requirements; as we discuss infra, Roche's opinion rested on

independently admissible evidence tying the defendants to

specific gangs, and it therefore had sufficient foundation.          See

Matter of P.R., supra.


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    Second, there was no evidence to support the defendant's

claim that the information provided by either the defendant or

the victim to Sables and the jail staff was unreliable because

it was a coerced "confession" or "admission."    It was not

disputed that the defendant's and the victim's statements about

their gang memberships were collected for an institutional

safety purpose -- ensuring that rival gang members were not

housed together.    There was thus no basis on which to conclude

that the information regarding gang membership was solicited as

an admission of wrongdoing.

    Third, although Roche's opinion took into account the fact

that the defendant had been "stopped or arrested" with various

known gang members, this was only one consideration supporting

his opinion.   Cf. Commonwealth v. Wardsworth, 482 Mass. 454,

469-470 (2019).    We discern nothing improper in Roche's

inclusion of this observation in his analysis, and we are not

persuaded that his opinion imputed to the defendant "[gang

membership] by association."

    Finally, we are not persuaded that the information the

defendant and the victim provided in 2014 about their gang

memberships was "stale" by the time of the shooting four years

later.   This is particularly true in light of Roche's testimony

about the long-term commitment inherent in gang affiliation and

membership.    See Commonwealth v. Atchue, 393 Mass. 343, 349


                                  6
(1984), citing Sgro v. United States, 287 U.S. 206, 211 (1932)

(timeliness of facts supporting search warrant is "determined by

the circumstances of each case").

     2.   The defendant's hearsay challenge.      We are satisfied

that Roche's expert opinion, although based on hearsay, was

admissible.   This is because the facts the defendant challenges

on appeal would have been "independently admissible" through an

appropriate witness.   Commonwealth v. Avila, 454 Mass. 744, 761

(2009).   We are likewise satisfied that where Roche knew the

substance of the statements, they were evidence "to which he

could apply his own expertise."       Wardsworth, 482 Mass. at 467.

     The defendant's statements about his gang affiliation were

not hearsay when they were offered against him by the

Commonwealth, see Mass. G. Evid. § 801(d)(2)(A) (2024), and they

could have been admitted at trial by, for example, calling Duffy

or Sables to testify to them.   See Commonwealth v. Lester, 70

Mass. App. Ct. 55, 61-62 (2007).      The fact of the victim's gang

affiliation would likewise have been admissible through the

victim himself.4


     4 The defendant contends that if called to testify at trial,
"the victim would have asserted his [Fif]th Amendment right and
his testimony would have been unavailable." This is pure
speculation, as there is nothing in the record to support that
representation. Even if the victim were unavailable, however,
his statements would likely have been admissible through either
Duffy or Sables as an exception to the hearsay rule. See Mass.



                                  7
    None of the defendant's other challenges to the foundation

of Roche's opinion are persuasive.   Where the judge explicitly

prohibited the prosecution from eliciting the basis of Roche's

opinion on direct examination, and the Commonwealth complied

with the judge's order at trial, the defendant's reliance on

Commonwealth v. Nardi, 452 Mass. 379, 392 (2008), and

Commonwealth v. Greineder, 464 Mass. 580, 583 (2013), is

misplaced.   Likewise, this case is readily distinguishable from

Wardsworth, in which there was no evidence about the source of

the information included in the database on which the proposed

gang expert relied.   See 482 Mass. at 467-468.   Finally, where

Roche was aware of the defendant's and the victim's statements




G. Evid. § 804 (2024). See also Lester, 70 Mass. App. Ct. at 62
(whether statement is admission for purposes of hearsay rule
turns not on whether proponent of statement is trial adversary,
but "depends on whether there is an adversity of interests
between the introducing party and the party who made the
statement").

     To the extent that the defendant developed any record on
whether the victim's statements were "testimonial hearsay," that
record does not establish that the victim's statements to Duffy
or Sables were the product of "interrogation," cf. Commonwealth
v. Earl, 102 Mass. App. Ct. 664, 670-671 (2023), or that the
purpose of the questioning was "to establish or prove past
events potentially relevant to later criminal prosecution."
Davis v. Washington, 547 U.S. 813, 822 (2006). We are likewise
unpersuaded that the record established that the defendant's
statements -- even those made at the house of correction --
required for their admissibility the administration of Miranda
warnings. See Commonwealth v. Larkin, 429 Mass. 426, 434
(1999).



                                 8
to Duffy and Sables confirming that they belonged to the Kilby

and MOB gangs, respectively, we are not persuaded that his

opinion rested entirely on Duffy's "scoring" of the two

individuals with the ten-point system.        The judge could, and we

infer did, conclude that Roche's opinion took into account his

own assessment of these statements.    There was therefore no

abuse of discretion in admitting the opinion evidence.       See

Commonwealth v. Maldonado, 429 Mass. 502, 505 (1999) (noting

judge's "exemplary" handling of evidence of gang membership).

                                      Judgments affirmed.

                                      By the Court (Vuono, Meade &
                                        Hand, JJ.5),



                                      Clerk


Entered:   February 28, 2025.




    5   The panelists are listed in order of seniority.


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