Commonwealth v. Masa

• Decision Date: 10 August 2020
• Docket Number: Docket: 1981CR0307
• Parties: COMMONWEALTH v. HIPOLITO MASA, JR.
• Court: Massachusetts Superior Court

COMMONWEALTH v. HIPOLITO MASA, JR.

Docket: 1981CR0307

Commonwealth of Massachusetts Superior Court

August 10, 2020

Dates: August 10, 2020

Present: /s/Kenneth W. Salinger Justice of the Superior Court

County: MIDDLESEX, ss.

Keywords: MEMORANDUM, FINDINGS, AND ORDER OVERRULING DEFENDANT'S OBJECTION TO CONDUCTING AN EVIDENTIARY SUPPRESSION HEARING BY VIDEO CONFERENCE

Hipolito Masa, Jr., was indicted for armed robbery, witness intimidation, breaking and entering in the daytime with the intent to commit a felony, and assault and battery with a dangerous weapon. Mr. Masa has moved to suppress statements he allegedly made to the police and any tangible evidence seized as a result. An evidentiary hearing is scheduled for tomorrow, Tuesday, August 11, 2020. The Court has informed the parties that it will conduct this hearing by remote video conference using the Zoom platform.

This morning Mr. Masa filed a written objection to conducting this hearing by a Zoom video conference. Masa states that, because of the ongoing COVID-19 pandemic, conducting such a hearing in person poses "a grave risk to all participants." But he contends that conducting the hearing by a remote video platform would violate his constitutional rights to be present for the hearing, to confront the witnesses against him and present witnesses in his favor, and to a public hearing, as well as the public's right to attend the proceeding.

The Court agrees with Mr. Masa that, during the current public health emergency, conducting this hearing with all participants physically present in the same courtroom poses an unnecessary risk to everyone involved.

But it further finds that: (i) under these unusual circumstances, it is necessary to deny Defendant's right to face and examine witnesses in the same physical space in order to protect the health and safety of all participants; (ii) conducting this hearing using the Zoom video conference platform, with the safeguards discussed below, will adequately protect Mr. Masa's constitutional right of confrontation and reasonably assure the reliability of all testimony consistent with his due process rights; and (iii) allowing full public access to the Zoom proceeding satisfies constitutional requirements.

The Court will therefore overrule Defendant's written objection to conducting this evidentiary suppression hearing by Zoom video conference. Mr. Masa's objection is noted and his rights of appeal are preserved.

1. Legal Background. A criminal defendant has "a constitutional right to be present" during an evidentiary hearing on a motion to suppress evidence, as such a hearing is a critical stage of the proceedings. Commonwealth v. Campbell, 83 Mass. App. Ct. 368, 372 (2013). This right "derives from the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, and art. 12 of the Massachusetts Declaration of Rights." Id. quoting Robinson v. Commonwealth, 445 Mass. 280, 285 (2005).

Whether a defendant has the absolute right to be physically present in the same location as each testifying witness, or whether it is sufficient —where necessary —for witnesses to testify and be subject to cross-examination through a two-way video bridge of some sort, has been the subject of court decisions throughout the country. The key legal standards, and lines of cases holding that those standards can be met when a witness is examined by remote video connection, are summarized below.

1.1. Right of Confrontation. At trial, art. 12 generally requires that a defendant be allowed to meet and confront the witnesses against him face to face. See Commonwealth 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 appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.' " Fontanez, supra, quoting Commonwealth v. Francis, 375 Mass. 211, 214 (1978), quoting in turn Chambers v. Mississippi, 410 U.S. 284, 295 (1973).

"[A] defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Maryland v. Craig, supra.

Proximate physical presence is not the essence of confronting a witness; what matters most is the ability of a defendant to test and challenge a witness's testimony through cross-examination. The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.

Commonwealth v. Fordham, 417 Mass. 10, 18 (1994) (repeating emphasis in original), quoting Davis v. Alaska, 415 U.S. 308, 315-316 (1974) (same), quoting in turn 5 J. Wigmore, Evidence § 1395, at 123 (3d ed. 1940). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Commonwealth v. Funches, 379 Mass. 283, 292 (1979), quoting Davis, supra at 316.

That is why the rights of confrontation guaranteed under the United States and Massachusetts Constitutions require that reliability of testimony against a criminal defendant must "be assessed in a particular manner: by testing in the crucible of cross-examination." Commonwealth v. Jones, 472 Mass. 707, 718 (2015, quoting Crawford v. Washington, 541 U.S. 36, 61 (2004) (Sixth Amendment); accord Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016) (art. 12).

Consistent with these principles, allowing a prosecution witness to testify during a criminal trial by two-way video conference or two-way closed-circuit television does not violate the defendant's right to confront the witnesses against them where doing so is necessary to protect the health or well-being of the witness or someone else, and the defendant is able to cross-examine and confront the witness through the video platform. See Lipsitz v. State, 442 P.3d 138, 144 (Nev. 2019) (victim residing at out-of-state drug treatment facility); White v. State, 116 A.3d 520, 540-547 (Md. Ct. Spec. App. 2015) (retired forensic serologist with serious back pain caused by prior vertebrae-fusion surgery); State v. Seelig, 738 S.E.2d 427, 434-435 (N.C. Ct. App. 2013) (out-of-state expert witness who suffered panic attacks from flying); New York v. Wrotten, 923 N.E.2d 1099, 1100-1103 (N.Y. 2009) (85-year old with coronary disease); Bush v. State, 193 P.3d 203, 214-216 (Wyo. 2008) (witness suffering from congestive heart failure, cardiomyopathy, and renal failure); Horn v. Quarterman, 508 F.3d 306, 313-318 (5th Cir. 2007) (terminally ill witness); Stevens v, State, 234 S.W.3d 748 (Tex. Ct. App. 2007) (75-year old witness with significant heart disease); United States v. Gigante, 166 F.3d 75, 79-81 (2d Cir. 1999) (fatally ill witness); State v. Sewell, 595 N.W.2d 207, 212-213 (Minn. Ct. App. 1999) (witness recovering from surgery on broken neck, at risk of paralysis from travel). 1.2. Due Process. The requirements of procedural due process are more adaptable than the guarantee of a right to confront adverse witnesses. "Unlike the confrontation clause, due process demands that evidence be reliable in substance, not that its reliability be evaluated in a particular manner. That the focus on reliability may not accommodate a simple, predictable, bright-line rule does not alter the fact that reliability, not cross-examination, is the due process touchstone." Commonwealth v. Camblin, 471 Mass. 639, 648-649 (2015), quoting Commonwealth v. Given, 441 Mass. 741, 747 n.9 (2004).

"Due process 'is a flexible concept ... [that] depend[s] on the circumstances of each case' " (bracketed material in original). Commonwealth v. Preston P., 483 Mass. 759, 767 (2020), quoting Commonwealth v. Durling, 407 Mass. 108, 113— 114 (1990). To determine what procedures are sufficient in a given case, a court must balance "the private interests affected, the risk of erroneous deprivation, the probable value of additional or substitute safeguards, and the governmental interests involved." Preston P., supra, quoting Noe, SORB No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 202 (2018).

Proceedings that directly affect someone's liberty interest or that involve a critical stage of a criminal prosecution may be conducted by video conference without violating due process, so long as the respondent or defendant has a reasonable opportunity to be heard and to challenge adverse evidence. See, e.g., Doe, SORB No. 234076 v. Sex Offender Registry Bd., 484 Mass. 666, 674-675 (2020) (sex offender classification proceeding); Shellman v. Commonwealth, 733 S.E.2d 242, 249 (Va. 2012) (annual review hearing under Virginia's Sexually Violent Predator Act); United States v. Moruzin, 2007 WL 2914903, at *4—*7 (D.N.J. 2007) (involuntary administration of antipsychotic medication to attempt to restore mental competence to stand trial); People v. Lindsey, 772 N.E.2d 1268, 1277-1278 (Ill. 2002) (arraignment and jury waiver); Larose v. Superintendent, Hillsborough County Correction Admin., 702 A.2d 326, 329-330 (N.H. 1997) (arraignments and bail hearings); United States v. Baker, 45 F.3d 837, 843-847 (4th Cir. 1995) (involuntary commitment of inmate to prison psychiatric facility).

1.3. Public Access. A criminal defendant's Sixth Amendment right to a public trial applies here, because it applies to pretrial hearings on motions to suppress evidence. See Waller v. Georgia, 467 U.S....