Commonwealth v. Fontanez

Citation482 Mass. 22,120 N.E.3d 707
Decision Date16 April 2019
Docket NumberSJC-12469
Parties COMMONWEALTH v. Rafael FONTANEZ.
CourtUnited States State Supreme Judicial Court of Massachusetts

David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

Thomas D. Frothingham, Waban, for the defendant.

Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.

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 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.

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 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, 108 N.E.3d 447 (2018), quoting Rogan v. Commonwealth, 415 Mass. 376, 378, 613 N.E.2d 920 (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, 84 N.E.3d 820 (2017), cert. denied, ––– U.S. ––––, 138 S.Ct. 1038, 200 L.Ed.2d 292 (2018), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (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 ... petition."

Commonwealth v. Baldwin, 476 Mass. 1041, 1042 n.2, 73 N.E.3d 294 (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, 550 N.E.2d 1361 (1990), quoting Costarelli v. Commonwealth, 374 Mass. 677, 679, 373 N.E.2d 1183 (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, 907 N.E.2d 642 (2009), S.C., 469 Mass. 248, 13 N.E.3d 989 (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 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, 100 N.E.3d 347 (2018) ; Commonwealth v. Yelle, 390 Mass. 678, 685-687, 459 N.E.2d 461 (1984) ; Commonwealth v. Cook, 380 Mass. 314, 319, 403 N.E.2d 363 (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 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, 27 N.E.3d 380 (2015) ; Commonwealth v. Samuels, 456 Mass. 1025, 1027 n.1, 926 N.E.2d 1141 (2010) ; Commonwealth v. Snow, 456 Mass. 1019, 1019-1020, 924 N.E.2d 744 (2010) ; Richardson, 454 Mass. at 1005-1006, 907 N.E.2d 642.

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, 27 N.E.3d 380, 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, 27 N.E.3d 380.

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, 479 Mass. 1012, 1014, 94 N.E.3d 840 (2018). Cf. Commonwealth v. Williams, 431 Mass. 71, 76, 725 N.E.2d 217 (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, 893 N.E.2d 19 (2008), cert. denied, 555 U.S. 1181, 129 S.Ct. 1329, 173 L.Ed.2d 602 (2009) ("Prior recorded testimony is ... roughly equivalent to the type of testimony a jury would have heard at trial were the...

To continue reading

Request your trial
17 cases
  • Commonwealth v. Beverly
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 15 Junio 2020
    ...is expressly reserved for instances where there is no other remedy available to the party seeking relief. See Commonwealth v. Fontanez, 482 Mass. 22, 25, 120 N.E.3d 707 (2019). Under the concurrence's own reasoning, the Commonwealth could obtain appellate review under Mass. R. Crim. P. 15. ......
  • Ulla U. v. Commonwealth
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 21 Julio 2020
    ...1009, 133 N.E.3d 350 (2019), quoting Commonwealth v. Narea, 454 Mass. 1003, 1004 n.1, 907 N.E.2d 644 (2009). Cf. Commonwealth v. Fontanez, 482 Mass. 22, 26, 120 N.E.3d 707 (2019) ("we routinely uphold single justice denials of ... petitions where there are no 485 Mass. 230 novel, systemic, ......
  • Garcia v. Commonwealth
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 22 Marzo 2021
    ...discretion, to review the substantive merits of the petition, and then if so, issues a decision on the merits. Commonwealth v. Fontanez, 482 Mass. 22, 24, 28, 120 N.E.3d 707 (2019). Here, the single justice exercised his discretion to reach the merits, holding that the trial judge's hospita......
  • Commonwealth v. Masa
    • United States
    • Superior Court of Massachusetts
    • 10 Agosto 2020
    ...v. Amirault, 424 Mass. 618, 628-629 (1997). However, "the right to confront witnesses is not absolute." Commonwealth v. Fontanez, 482 Mass. 22, 32 (2019) (art. 12), quoting Amirault, 424 Mass. at 633; accord Maryland v. Craig, 497 U.S. 836, 849-850 (1990) (Sixth Amendment). "It 'may, in app......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT