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SJC-12469
COMMONWEALTH vs. RAFAEL FONTANEZ.
Suffolk. December 4, 2018. - April 16, 2019.
Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.
Evidence, Testimony at prior proceeding, Previous testimony of
unavailable witness, Identification. Identification.
Practice, Criminal, Appeal by Commonwealth, Interlocutory
appeal, Confrontation of witnesses, Waiver. Constitutional
Law, Identification, Confrontation of witnesses, Waiver of
constitutional rights. Supreme Judicial Court,
Superintendence of inferior courts.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on September 25, 2017.
The case was considered by Gaziano, J.
David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.
Thomas D. Frothingham for the defendant.
LOWY, J. The Commonwealth appeals from the judgment of a
single justice of this court denying its petition for relief
pursuant to G. L. c. 211, § 3. The Commonwealth petitioned the
single justice to vacate a Superior Court judge's order allowing
2
the criminal defendant's motion in limine to exclude prior
recorded testimony. The single justice denied the petition
without a hearing, stating, "This is not an exceptional
circumstance requiring the exercise of the [c]ourt's
extraordinary power, and in any event, the Commonwealth has not
shown that the trial judge abused his discretion." We reverse.
Background. For purposes of our review, the undisputed
facts are as follows. The defendant was indicted for armed
assault with intent to murder, G. L. c. 265, § 18 (b), and
assault and battery by means of a dangerous weapon causing
serious bodily injury, G. L. c. 265, § 15A (c) (i). The alleged
victim was stabbed in a bar in Springfield and, when presented
with a photographic array, identified the defendant as the
culprit. The defendant filed a motion to suppress that and
other out-of-court identifications. He also moved to remain out
of view during eyewitness testimony at the hearing on his
motion. The defendant's motion to remain out of view was
allowed, and during witness testimony the defendant sat behind
the judge's bench. He did not see the witnesses, and the
witnesses did not see him. After the hearing, the defendant's
motion to suppress identification was denied as to three
witnesses, including the victim, and allowed as to one witness.
The victim subsequently died for reasons unrelated to the
stabbing.
3
The Commonwealth moved in limine to introduce at trial a
transcript of the victim's testimony from the suppression
hearing, and the defendant filed a motion in opposition. In a
written decision, a judge, other than the judge who ruled on the
defendant's motion to suppress, concluded that admitting the
transcript in evidence would violate the defendant's right to
face-to-face confrontation under art. 12 of the Massachusetts
Declaration of Rights because the defendant sat out of view
during the suppression hearing. Accordingly, the judge allowed
the defendant's motion to exclude the victim's prior testimony
and denied the Commonwealth's motion to admit the testimony.
Pursuant to G. L. c. 211, § 3, the Commonwealth petitioned
a single justice of this court to vacate the judge's order
excluding the victim's prior testimony.1 The single justice
1 We have considered a preliminary procedural question not
addressed by the parties: whether, instead of petitioning
pursuant to G. L. c. 211, § 3, the Commonwealth should have
sought leave to appeal from the single justice pursuant to Mass.
R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017).
Although the underlying matter arose on cross motions in limine
and not on a motion to suppress, the defendant's motion and the
judge's ruling on it had some of the same characteristics as a
suppression motion and ruling. See Commonwealth v. Grady, 474
Mass. 715, 718 (2016); Commonwealth v. Gonsalves, 445 Mass. 1,
15-16 (2005), cert. denied, 548 U.S. 926 (2006). See also
Commonwealth v. Arrington, 455 Mass. 437, 437-438 (2009), in
which we considered a nearly identical motion pursuant to Mass.
R. Crim. P. 15 (a) (2).
Both sides proceeded in the county court and in the full
court as if Mass. R. Crim. P. 15 did not apply. The single
4
denied the petition without a hearing, stating, "This is not an
exceptional circumstance requiring the exercise of the [c]ourt's
extraordinary power, and in any event, the Commonwealth has not
shown that the trial judge abused his discretion." The
Commonwealth appealed from this decision to the full court.
Discussion. "In reviewing the single justice's
determination to deny the Commonwealth's petition brought under
G. L. c. 211, § 3, this court looks to whether 'the single
justice abused his or her discretion or made a clear error of
law.'" Commonwealth v. Ruiz, 480 Mass. 683, 685 (2018), quoting
Rogan v. Commonwealth, 415 Mass. 376, 378 (1993). "An abuse of
discretion occurs only where the judge makes '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. Keown, 478 Mass. 232,
242 (2017), cert. denied, 138 S. Ct. 1038 (2018), quoting L.L.
v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
A single justice faced with a G. L. c. 211, § 3, petition
performs a two-step inquiry. We address each step in turn.
1. Step 1: Whether to review petition's merits. First,
the single justice must decide, in his or her discretion,
whether to review "the substantive merits of the . . .
justice also considered the underlying ruling to be a ruling in
limine and not a suppression ruling. We shall do the same.
5
petition." Commonwealth v. Baldwin, 476 Mass. 1041, 1042 n.2
(2017). The single justice does not determine in this initial
step whether the challenged ruling was erroneous, although a
cursory look at the merits might help the single justice decide
whether the petition is suitable for review. Rather, the focus
of step one is on answering a threshold question: whether to
employ the court's power of general superintendence to become
involved in the matter. "This discretionary power of review has
been recognized as 'extraordinary,' and will be exercised only
in 'the most exceptional circumstances.'" Planned Parenthood
League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706
(1990), quoting Costarelli v. Commonwealth, 374 Mass. 677, 679
(1978). The single justice is not required to become involved
if the petitioner has an adequate alternative remedy or if the
single justice determines, in his or her discretion, that the
subject of the petition is not sufficiently important and
extraordinary as to require general superintendence
intervention. "No party, including the Commonwealth, should
expect this court to exercise its extraordinary power of general
superintendence lightly." Commonwealth v. Richardson, 454 Mass.
1005, 1006 (2009), S.C., 469 Mass. 248 (2014).
In criminal cases, defendants' petitions under G. L.
c. 211, § 3, are often denied on the ground that the defendant
has an adequate alternative remedy, namely, a direct appeal as
6
of right after trial in the event he or she is convicted.
Petitions brought by the Commonwealth present a different
situation because, in most circumstances where it receives an
adverse ruling in the trial court, the Commonwealth has no other
avenue to obtain appellate review either through interlocutory
avenues or after trial. Even if the Commonwealth has no other
remedy, however, it is not automatically entitled to review as
of right under G. L. c. 211, § 3. See Commonwealth v. D.M., 480
Mass. 1004, 1004 n.2 (2018); Commonwealth v. Yelle, 390 Mass.
678, 685-687 (1984); Commonwealth v. Cook, 380 Mass. 314, 319
(1980) ("that the Commonwealth has no other remedy does not make
c. 211, § 3, review automatic"). To obtain review the
Commonwealth must still demonstrate to the single justice that
its petition presents the type of exceptional matter that
requires the court's extraordinary intervention.2 Exceptional
2 It is for these reasons, when the Commonwealth appeals
from single justice denials of its petitions under G. L. c. 211,
§ 3, that we routinely remind the Commonwealth in our orders
allowing its appeals to proceed pursuant to S.J.C. Rule 2:21, as
amended, 434 Mass. 1301 (2001), that it must do more than
demonstrate to the full court that it had no adequate
alternative remedy. Our order in this case is illustrative. We
stated:
"The Commonwealth should be mindful . . . as it pursues
this appeal, that the fact that it has no other remedy does
not automatically entitle it to consideration of the
substantive merits of its claim. See Commonwealth v.
Richardson, 454 Mass. 1005, 1005-1006 (2009)[, S.C., 469
Mass. 248 (2014)]; Commonwealth v. Cook, 380 Mass. 314, 319
7
circumstances might exist if, for example, the Commonwealth's
petition involves a novel question of law, a systemic issue that
will have an effect not just on the current case but on numerous
other cases, or a lower court ruling that, if allowed to stand,
would have a truly crippling effect on the Commonwealth's case.
On the other hand, we routinely uphold single justice denials of
the Commonwealth's petitions where there are no novel, systemic,
or case-determinative issues, or other aspects that make the
petitions exceptional. See, e.g., Commonwealth v. Hernandez,
471 Mass. 1005, 1006-1007 (2015); Commonwealth v. Samuels, 456
Mass. 1025, 1027 n.1 (2010); Commonwealth v. Snow, 456 Mass.
1019, 1019-1020 (2010); Richardson, 454 Mass. at 1005-1006.
(1980). It will first be incumbent on the Commonwealth to
demonstrate that this is the type of 'rare case' and
'exceptional circumstance' that requires the exercise of
the court's extraordinary power of general superintendence;
more specifically, that the single justice abused his
discretion in declining to employ the court's extraordinary
superintendence power in these circumstances. See
Commonwealth v. Barros, 460 Mass. 1015, 1016 (2011);
Commonwealth v. Richardson, supra. This being an appeal
from the single justice's decision, and not a de novo
review of the petition or second bite at the apple, it will
not be enough for the Commonwealth simply to repeat the
same arguments to this court that it pressed unsuccessfully
before the single justice. Commonwealth v. Samuels, 456
Mass. 1025, 1027 n. 1 (2010). See Commonwealth v. Barros,
supra at 1017. The full court will reach the substantive
merits only if it first determines that the case presents
the type of extraordinary situation requiring consideration
of the merits under G. L. c. 211, § 3, and that the single
justice abused his discretion in ruling otherwise."
8
Here, both sides agree that the Commonwealth had no
alternative avenue to obtain review of the judge's allowance of
the defendant's motion in limine. We turn, therefore, to
whether the Commonwealth's claim is "exceptional" for purposes
of G. L. c. 211, § 3. We conclude that the single justice
abused his discretion in determining that there were no
exceptional circumstances here.
The Superior Court judge's decision appears at first to be
"a routine ruling on a relatively routine evidentiary matter."
Hernandez, 471 Mass. at 1007, and cases cited. Whether to admit
prior recorded testimony is, after all, a question regularly
considered by trial judges. See id. It is well within a single
justice's discretion to decline to review a routine evidentiary
ruling, regardless of whether the decision was erroneous. Id.
at 1006-1007.
However, on closer inspection the petition is more than
just routine: the judge's decision to exclude the now deceased
victim's testimony effectively forecloses the Commonwealth's
ability to prosecute a serious crime. This is not a situation
where the excluded evidence will merely weaken the prosecution.
The victim's prior testimony is key evidence that is critical to
the Commonwealth's ultimate success or failure in prosecuting
the case. "The Commonwealth, not unreasonably, does not want to
proceed to trial without it . . . ." Commonwealth v. Tahlil,
9
479 Mass. 1012, 1014 (2018). Cf. Commonwealth v. Williams, 431
Mass. 71, 76 (2000) (single justice "rarely" denies
Commonwealth's application pursuant to Mass. R. Crim. P.
15 [a] [2], where "Commonwealth's case depends on the evidence
that has been suppressed").
At the suppression hearing, the victim described his
earlier identification of the assailant and identified a
photograph of the assailant. If this testimony is admitted at
trial, then police officers involved in administering the
photographic array may testify that the victim identified the
defendant. See Mass. G. Evid. § 801(d)(1)(C) (2019) (prior
identification not hearsay where "declarant testifies and is
subject to cross-examination about" identification). See also
Commonwealth v. Clemente, 452 Mass. 295, 313 (2008), cert.
denied, 555 U.S. 1181 (2009) ("Prior recorded testimony is . . .
roughly equivalent to the type of testimony a jury would have
heard at trial were the witness available . . . . The party
against whom the testimony is offered will have had a reasonable
opportunity and similar motive to develop the testimony
adequately, either by direct, cross-, or redirect examination").
But if this testimony is not admitted at trial, then no evidence
of the now deceased victim's identification will be admissible.
See Commonwealth v. Housewright, 470 Mass. 665, 676 (2015),
quoting Commonwealth v. Barbosa, 463 Mass. 116, 130 (2012) ("Had
10
[witness's] prior recorded [identification] testimony been
excluded, the jury would also not have heard [police officer's]
testimony regarding [witness's] identification of the defendant
at the identification procedure, because a witness's pretrial
identification is admissible for substantive purposes only where
'the identifying witness testifies at trial and is subject to
cross-examination'").
Admittedly, there is some other evidence on which the
prosecution could conceivably rely. Surveillance video footage
captured the incident, and there were two other witnesses to the
stabbing. However, witnesses at the hearing described the video
recording as being of poor quality. And it is highly unlikely
that either of the other witnesses to the incident would be
permitted to identify the defendant at trial. One of them never
identified the defendant to the police, but rather described the
assailant as male and gave a clothing description. See
Commonwealth v. Crayton, 470 Mass. 228, 241 (2014) ("Where an
eyewitness has not participated before trial in an
identification procedure, we shall . . . admit it in evidence
only where there is 'good reason'" to do so). The other witness
did identify the defendant, but his out-of-court identification
was suppressed. See Commonwealth v. Johnson, 473 Mass. 594, 602
(2016) ("Where a witness's out-of-court identification is
excluded," in-court identification allowed only if "Commonwealth
11
proves by clear and convincing evidence that the subsequent
identification . . . rests on a source independent of the
unnecessarily suggestive confrontation").3 The prior testimony
is important enough, and the other identification evidence
appears weak enough, that excluding the prior testimony would
cripple the Commonwealth's case.
We observe also that this case implicates fundamental
constitutional rights, involves important competing legal
principles, and arises from an unusual fact pattern. We do not
suggest that every confrontation issue is suitable for review
pursuant to G. L. c. 211, § 3. Here, however, the judge
analyzed the interaction in these unusual circumstances between
the confrontation right and waiver doctrine, as well as whether
conflicting constitutional protections were implicated. The
importance of these fundamental constitutional concerns weighs
in favor of reviewing the petition's merits. Cf. D.M., 480
Mass. at 1006 (single justice should have reviewed merits of
petition where "important . . . public policies [were] at
issue").
3 Based on the motion decisions and hearing transcript, the
only other evidence is an anonymous tip to police that the
defendant stabbed the victim and identifications placing the
defendant at the bar on the night of the incident. We do not
comment on the admissibility of this evidence.
12
Because the Commonwealth does not have an alternative
remedy, and because the Commonwealth's petition presents an
exceptionally important matter, the single justice abused his
discretion in determining that the Commonwealth's petition did
not require the court's consideration of the merits.
2. Step 2: Reviewing petition's merits. When review of a
petition is appropriate, the single justice moves to the second
step and reviews the petition's merits. The single justice
"must then correct" the challenged trial court ruling if it was
wrong. D.M., 480 Mass. at 1004 n.2. Here, the Commonwealth
claims in its petition that the judge erred in excluding the
victim's prior recorded testimony. We agree.
Prior recorded testimony is admissible as an exception to
the rule against hearsay where the declarant is unavailable at
trial as a matter of law, and where "the prior testimony was
given by a person . . . in a proceeding addressed to
substantially the same issues as in the current proceeding, with
reasonable opportunity and similar motivation on the prior
occasion for cross-examination of the declarant by the party
against whom the testimony is being offered." Commonwealth v.
Fisher, 433 Mass. 340, 355 (2001), quoting Commonwealth v.
Trigones, 397 Mass. 633, 638 (1986). See Mass. G. Evid.
§§ 804(a), (b)(1) (2019).
13
Similarly, under the Sixth Amendment to the United States
Constitution and art. 12, "[a]dmitting prior testimony does not
violate the defendant's confrontation rights when the declarant
is unavailable, as a matter of law, to testify and 'the
defendant has had an adequate prior opportunity to cross-examine
the declarant.'" Commonwealth v. Caruso, 476 Mass. 275, 293
(2017), quoting Commonwealth v. Hurley, 455 Mass. 53, 60 (2009).
The initial inquiry is whether the declarant is unavailable as a
matter of law. See Mass. G. Evid. § 804(a). A judge should
then consider five factors in determining "whether the defendant
had a sufficient opportunity to cross-examine the declarant at
the prior proceeding: (1) the declarant was under oath, (2) the
defendant was represented by counsel, (3) the proceeding took
place before a record-keeping tribunal, (4) the prior proceeding
addressed substantially the same issues as the current
proceeding, and (5) the defendant had reasonable opportunity and
similar motivation on the prior occasion for cross-examination
of the declarant" (footnote omitted).4 Caruso, supra.
4 The defendant asks us to require also that the prior
testimony be from a hearing at which the Commonwealth bore and
satisfied a burden of proof. We have stated that, for prior
recorded testimony to be admissible, the trier of fact must have
"a satisfactory basis for evaluating the truth of the prior
statement." Commonwealth v. Hurley, 455 Mass. 53, 62-63 (2009),
quoting Commonwealth v. Roberio, 440 Mass. 245, 251 (2003),
overruled on other grounds by Commonwealth v. Sena, 441 Mass.
822 (2004). According to the defendant, the fact finder cannot
14
Applying this constitutional rubric, the judge concluded
that the victim was unavailable and that the defendant had had
an adequate opportunity to cross-examine the victim at the
earlier suppression hearing.5 We agree.
evaluate the truth of the prior statement unless a burden was
satisfied at the prior hearing. But whether an earlier fact
finder credited the testimony has no bearing on the current fact
finder's own credibility determination. Accordingly, we have
allowed the admission of prior recorded testimony against a
defendant at trial where the Commonwealth did not satisfy a
burden of proof at the earlier proceeding. See Commonwealth v.
Trigones, 397 Mass. 633, 635-636, 640 (1986) (testimony from
hearing on defendant's denied motion to suppress admissible when
offered by Commonwealth). And under Mass. G. Evid. § 804(b)(1)
(2019), the hearsay exception for prior recorded testimony
includes testimony given "at a . . . lawful deposition." See
Hasouris v. Sorour, 92 Mass. App. Ct. 607, 607-608 (2018). The
proponent of former testimony taken at a deposition cannot have
satisfied a burden of proof at the prior proceeding.
The defendant also argues that we should require "a direct
accusation against the defendant" at the prior proceeding that
"matches the risk to follow at trial." Otherwise, a defendant
might avoid at the earlier hearing issues relevant to trial, not
realizing that the hearing testimony will later be admitted.
Our inquiry into whether "the defendant had reasonable
opportunity and similar motivation on the prior occasion for
cross-examination of the declarant" addresses this concern.
Commonwealth v. Caruso, 476 Mass. 275, 293-294 (2017).
5 The judge also concluded that the victim's prior testimony
was not unreliable. However, if prior testimony meets the
above-mentioned requirements for unavailability, see Mass. G.
Evid. § 804(a) (2019); the prior recorded testimony exception to
the rule against hearsay, see Mass. G. Evid. § 804(b)(1); and
the confrontation clause, then it is for the jury, not the
judge, to decide whether the out-of-court declarant's testimony
is reliable. The judge's approach is understandable considering
our decision in Arrington, 455 Mass. at 442, in which "we
focus[ed] on the reliability of [a declarant's] testimony" from
a prior hearing when deciding whether the prior testimony
15
The victim was unavailable to testify at trial because he
was deceased. See Commonwealth v. Rosado, 480 Mass. 540, 549
n.8 (2018), citing Mass. G. Evid. § 804(a)(4). At the
suppression hearing, the victim was under oath, the defendant
was represented by counsel, and the hearing was before a record-
keeping tribunal. Although the issue at the suppression hearing
and the defendant's motive for examining the victim at that
hearing were not precisely the same as they would be at trial,
the issue was "substantially the same" and the motive was
"similar." Caruso, 476 Mass. at 293.
We agree with the judge that "the issue was [the victim]'s
identification of [the defendant], regardless of whether it
consisted of attacking the procedure the police utilized or
attacking [the victim]'s credibility, which, in fact, defense
"qualifie[d] as an exception to the hearsay rule." We observed
that, due to the declarant's "fragile" health "and the effects
of her medication," the judge in the prior hearing "did not deem
[her] testimony reliable." Id. at 443. However, we also
concluded that "defense counsel did not have a reasonable
opportunity at the [prior] hearing to cross-examine" the
declarant. Id. at 445. We based our decision to exclude the
prior recorded testimony on this lack of a reasonable
opportunity to cross-examine, not on the prior testimony's
unreliability. Id. at 446 (prior recorded testimony not
admissible as exception to hearsay rule because "although the
defendant had a similar motivation for cross-examining [the
declarant] at the [prior] hearing, he lacked a reasonable
opportunity to conduct that cross-examination"). We disavow
Arrington to the extent it suggests reliability is a separate
factor when analyzing the hearsay exception for prior recorded
testimony.
16
counsel attempted to do." Cf. Hurley, 455 Mass. at 63 n.9
("there may be circumstances in which a defense counsel's motive
to cross-examine a declarant at a pretrial detention hearing may
differ from her motive to cross-examine at trial, such as where
the defense counsel did not challenge the declarant's accuracy
or credibility at cross-examination in the prior hearing").6
Although the defendant technically examined the victim on
direct rather than on cross-examination at the suppression
hearing, the purpose of calling the victim as a witness was to
discredit his out-of-court identification. See Commonwealth v.
Bresilla, 470 Mass. 422, 433 (2015), quoting Commonwealth v.
Echavarria, 428 Mass. 593, 596 (1998) (to succeed on motion to
suppress out-of-court identification, defendant must prove "the
identification procedures were so unnecessarily suggestive and
conducive to irreparable mistaken identification as to deny the
defendant due process of law" [quotations omitted]).
Accordingly, defense counsel asked the victim leading questions,
emphasized the victim's intoxication on the night of the
stabbing, suggested the victim had only seconds to view the
6 We do not mean to suggest that there must be cross-
examination at the prior proceeding for the prior recorded
testimony exception to apply. "Actual cross-examination at the
prior [proceeding] is not required, but the party against whom
the testimony is now offered must have had an adequate
opportunity to exercise the right to cross-examine if desired."
Commonwealth v. Canon, 373 Mass. 494, 500 (1977), cert. denied,
435 U.S. 933 (1978).
17
defendant in the bar, used the victim's past drug addiction to
refute the victim's testimony that he was clear-headed when he
identified the defendant in a photographic array, and impeached
the defendant with prior inconsistent statements. This
questioning "partook of cross-examination as a matter of form"
(emphasis omitted). Ohio v. Roberts, 448 U.S. 56, 70 (1980),
overruled on other grounds by Crawford v. Washington, 541 U.S.
36 (2004). See Commonwealth v. Wholaver, 605 Pa. 325, 358,
cert. denied, 562 U.S. 933 (2010) ("rationale [in Roberts] that
the preliminary hearing questioning served the function of
cross-examination remains persuasive for purposes of evaluating
whether Crawford's cross-examination requirement has been met").
See also Mass. G. Evid. § 804(b)(1) (prior recorded testimony
not excluded by rule against hearsay where, inter alia, it is
"offered against a party who had . . . an opportunity and
similar motive to develop it by direct, cross-, or redirect
examination" [emphasis added]).
The judge's conclusions should have led him to decide that
the transcript was admissible because it satisfied the hearsay
exception for prior recorded testimony and the constitutional
restraints on that exception. However, the judge excluded the
victim's prior testimony because the defendant and the victim
"did not meet face to face in the prior proceeding." Article 12
provides defendants with the right to confront face to face at
18
trial the witnesses against them. Commonwealth v. Amirault, 424
Mass. 618, 632 (1997), S.C., 430 Mass. 169 (1999). We do not
address whether there is a right to face-to-face confrontation
at a motion to suppress, see SCVNGR, Inc. v. Punchh, Inc., 478
Mass. 324, 330 (2017) ("courts should, where possible, avoid
unnecessary constitutional decisions"), because the defendant
waived any such right by asking to avoid a face-to-face
confrontation. See Amirault, supra at 651 n.23 ("right to face-
to-face confrontation is not unwaivable").
In an affidavit supporting his motion to remain out of
view, the defendant expressly waived his right to be present at
the suppression hearing. See Mass. R. Crim. P. 18 (a), 378
Mass. 887 (1979) (criminal defendant has right to be present "at
all critical stages of the proceedings"). See also Robinson v.
Commonwealth, 445 Mass. 280, 286 (2005) ("defendant may waive
the right to be present at critical stages of the proceedings").
In doing so, he chose to avoid confronting face to face the
witnesses who testified against him at the hearing. See
Amirault, 424 Mass. at 651 n.23. Cf. Commonwealth v. Spear, 43
Mass. App. Ct. 583, 589 n.8 (1997), citing Amirault, supra at
623, 626, 645-646 ("confrontation issue [was] waived [in
Amirault] where . . . defense counsel participated in designing
special seating configuration and specifically declined to
challenge the arrangement on confrontation clause grounds").
19
The judge erred in precluding the prior testimony despite this
waiver.
We disagree with the judge's conclusion that the defendant
"cannot be deemed to have freely waived one constitutional right
because he properly chose . . . to exercise another" by sitting
out of view. Even if we were to decide that there is a right to
sit out of view at a hearing on a motion to suppress, which we
decline to do here, exercising that right would not prevent the
defendant from waiving his right to face-to-face confrontation.
"[T]he right to confront witnesses is not absolute." Amirault,
424 Mass. at 633, quoting Commonwealth v. Bergstrom, 402 Mass.
534, 546 (1988). It "may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial
process." Commonwealth v. Farley, 443 Mass. 740, 748, cert.
denied, 546 U.S. 1035 (2005), quoting Commonwealth v. Francis,
375 Mass. 211, 214, cert. denied, 439 U.S. 872 (1978). The
defendant's interest in remaining out of view during the hearing
on his motion to suppress his identification superseded any
right he might have had to face-to-face confrontation.
The defendant suggests that he needed to sit out of view to
challenge the constitutionality of various out-of-court
identifications. He analogizes, as did the judge, to cases in
which a defendant waived the right under the Fifth Amendment to
the United States Constitution against compelled self-
20
incrimination in order to assert the right to be free from
unreasonable searches and seizures under the Fourth Amendment to
the United States Constitution. See Simmons v. United States,
390 U.S. 377, 389-394 (1968); Commonwealth v. Amendola, 406
Mass. 592, 596-600 (1990). But those cases addressed situations
in which a defendant had to give up one constitutional right to
assert another. See Simmons, supra at 381 (to establish
standing for motion to suppress evidence, defendant testified
that suitcase with incriminating items belonged to him);
Amendola, supra at 600 (discussing "self-incrimination
dilemma"). Here, the defendant could have challenged the out-
of-court identifications without giving up any right he might
have had to face-to-face confrontation. The decision to sit out
of view was merely tactical.
Finally, to the extent the judge was influenced by the
defendant having chosen to remain out of view "on his counsel's
advice," we observe that the "right to face-to-face
confrontation" is not on the "very short list of rights . . .
that must be waived personally by a defendant and cannot be
waived by his counsel." Amirault, 424 Mass. at 651 n.23. See
Commonwealth v. Myers, 82 Mass. App. Ct. 172, 182-183 (2012).
Cf. Commonwealth v. Morganti, 467 Mass. 96, 102, cert. denied,
135 S. Ct. 356 (2014) ("trial counsel may waive the right [to an
21
open court room] on his own as a tactical decision without
informing his client").7
Conclusion. For the foregoing reasons, the judgment of the
single justice is set aside, and the case is remanded to the
county court for entry of a judgment vacating the order allowing
the defendant's motion in limine to exclude the victim's prior
recorded testimony.
So ordered.
7 The defendant asserts that a waiver of the right to
confrontation should always require a knowing and voluntary act
by the defendant. We decline to adopt such a rule.