CASE SUMMARY: Diaz v. Gomez, 11-P-305

Monday, July 30, 2012

Diaz v. Gomez, 11-P-305

 Plaintiff Cindy Diaz, ex-wife, sought a 209A restraining order against Defendant Juan Gomez, ex-husband, a Boston Police Officer, following an incident involving the parties’ son.  Diaz and the parties’ teenage son had a dispute during which the son pushed Diaz and she slapped him.  The son called Gomez who called the local police.  The local police went to Diaz’ home and Gomez parked his cruiser at the end of Diaz’ street where he sat in uniform while the local police were at the house.  A few days later, Diaz sought a 209A restraining order reciting the events of October 13th and alleging Gomez had been physically abusive in the past.

Diaz had obtained two prior 209A orders against Gomez as a result of physical abuse.  On this occasion, Diaz stated that Gomez had previously put a gun to her head when making a threat to put her “six feet under”, a detail she had not included in prior affidavits. 

At the extension hearing, Gomez who was represented by counsel, chose not to present any evidence but instead challenged the adequacy of Diaz’ affidavit and her testimony at the initial hearing.  The hearing judge asked Probation to contact Boston Police Sergeant Craven who had dealt with the family for years.  Sergeant Craven reportedly told probation that she was familiar with the family and had been dealing with them for years.  She noted that she had taken Gomez’ guns away from him in the past and that he has borrowed friends’ guns so she had to take those away from him too.  Defense counsel objected to Sergeant Craven’s information being considered in that fashion and the hearing judge responded that if counsel wanted to set the matter for a full evidentiary hearing he could ask for one.  Counsel did not ask for an evidentiary hearing.  The hearing judge extended the order for a year.  She made detailed findings in support of the extension.

Diaz argued that the evidence was insufficient to support an extension of the order.  The Appeals Court disagreed holding that in light of the background facts found by hearing judge along with the findings regarding the most recent incident, the judge’s finding that Diaz was in reasonable fear of imminent physical harm is supported by the facts.

Gomez next argued that the hearing judge violated his due process rights – a claim raised for the first time on appeal.  The Appeals Court held that because defense counsel participated in and helped craft the scope of the out of court inquiry that the judge undertook, Gomez had waived his right to a due process objection.