Diaz v. Commonwealth
| Citation | 487 Mass. 336,167 N.E.3d 822 |
| Decision Date | 05 May 2021 |
| Docket Number | SJC-13009 |
| Parties | John W. VAZQUEZ DIAZ v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts |
Rebecca Kiley, Committee for Public Counsel Services (Benjamin H. Keehn, Committee for Public Counsel Services, also present) for the petitioner.
Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.
Katharine Naples-Mitchell, Chauncey B. Wood, & Meredith Shih, for Boston Bar Association & others, amici curiae, submitted a brief.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, & Wendlandt, JJ.
This case concerns whether the use of an Internet-based video conferencing platform, Zoom Video Communications, Inc. (Zoom), for an evidentiary hearing during the COVID-19 pandemic violates certain of the defendant's constitutional rights. The defendant, John W. Vazquez Diaz, has waived his right to a speedy trial and seeks to continue his suppression hearing until it may be held in person. We conclude that a virtual hearing is not a per se violation of the defendant's constitutional rights in the midst of the COVID-19 pandemic.
Nonetheless, where the defendant has waived his right to a speedy trial and there are no civilian victims or witnesses, we conclude that the Superior Court judge, who had to make a decision in uncharted territory, abused her discretion in denying the defendant's motion to continue his suppression hearing until it may be held in person. Accordingly, we reverse the judge's order denying the defendant's motion to continue.1
1. Background. a. Defendant's case. The defendant was charged with trafficking in 200 or more grams of cocaine. On November 25, 2019, the defendant filed a motion to suppress evidence and statements. The evidentiary hearing on the defendant's motion to suppress originally was scheduled for January 21, 2020, but it was continued at the defendant's request. On the next date, the hearing was continued at the request of the Commonwealth. On May 4, 2020, the hearing was postponed for a third time because of the COVID-19 pandemic. The judge subsequently ordered that the hearing take place via Zoom. The defendant filed a motion objecting to a Zoom hearing and instead requested that the case be continued until an in-court hearing could be held safely. The defendant is incarcerated on cash bail and agreed to waive his right to a speedy trial to wait for an in-person evidentiary hearing on his motion to suppress.
After a hearing on the defendant's motion to continue, which was held over Zoom, the judge denied the motion and overruled the defendant's objection to conducting a hearing via Zoom. The defendant appealed directly to this court pursuant to G. L. c. 211, § 3. At the Commonwealth's request, and without objection, a single justice reserved and reported the question of the constitutionality of virtual evidentiary hearings to the full court.
b. COVID-19 pandemic. In response to COVID-19, the Governor declared a state of emergency on March 10, 2020, and the President declared a national emergency on March 13. COVID-19 can cause severe illness in infected persons and may lead to death. Person-to-person contact is the primary method by which the virus spreads, and an asymptomatic person may spread the virus. There currently is no cure. Vaccine distribution and administration has begun only recently. From the onset of the pandemic to the writing of this opinion, the Commonwealth has suffered over 17,000 deaths and over 648,000 confirmed cases of illness.
In an effort to reduce the number of COVID-19 cases, the Governor issued numerous emergency orders. The Massachusetts court system also responded to the pandemic with various orders concerning court proceedings and building access. Because the situation is fluid, the courts have periodically changed such orders in response to public health data. We issued multiple orders, which included continuances of jury trials, restricting access to State court houses and facilities, and tolling certain deadlines and statutes of limitation.
The trial courts also issued orders to address procedures in their respective courts. For instance, a Superior Court order outlined the proceedings that would be presumptively held virtually and those that may be heard in person. The order requires that criminal matters, including arraignment if a defendant is in custody, bail reviews, bail determinations following arrest or surrender pursuant to a Superior Court warrant, dangerousness hearings, pretrial conferences, nonevidentiary motions, and guilty pleas where the defendant has waived the right to physical presence, be held virtually. Evidentiary hearings may be held in person; however, even then, the order permits only essential court personnel, attorneys, parties, witnesses, and others specifically allowed by the presiding judge to be physically present in the court room.
c. Use of Zoom. The following description is a summary of the judge's findings.2 Throughout the Commonwealth, courts have adapted to the restrictions of the COVID-19 pandemic by increasingly relying on Zoom. Zoom hearings are recorded through the court's "For The Record" recording system.
Zoom provides two ways for a participant to view the other participants: the gallery view or the active speaker view. The gallery view allows a participant to see all other participants at once, in a thumbnail-style grid. The active speaker view shows only the individual presently speaking. The speaker's image fills the screen.3 Within the active speaker view, a participant has the option of displaying a strip of thumbnail displays containing the participant and all other participants beneath the larger video screen of the active speaker.
The judge found that the Zoom software used by the Superior Court has three features that are relevant to the defendant's motion in this case. The first is the "breakout room" function, which allows participants to have private virtual meetings during the hearing without disconnecting from Zoom. For instance, the defendant may enter a breakout room with only his or her attorney, excluding all other participants in the hearing. These breakout session meetings are also private in the sense that they are not recorded or streamed. The second is the "interpreter" function, which allows an interpreter to simultaneously interpret a hearing for a participant on a separate audio channel that only that participant can hear, similar to the use of a transmitter and an earpiece sometimes used by a defendant and interpreter in the court room. The third function is the "share screen" function, which permits participants to show electronic documents to the other participants. If a participant does not wish to use this function, or cannot use this function, he or she simply can hold a physical document in front of the camera to display it to the other participants. 4
The judge also described the two ways in which the public can attend a Zoom hearing. First, the public can listen to the hearing through an audio-only public telephone line. In Suffolk County, each Superior Court session has been assigned a permanent telephone line. Instructions for public access to this line are listed on the mass.gov website.5
Second, a Zoom link to the proceeding is provided to counsel by e-mail. The court encourages distribution of the link to those who are interested in the matter, especially the defendant's family and other supporters. The judge found that there is no limit to the number of persons who may virtually attend a hearing.6 The judge noted that this is in "direct contrast to the strict limits upon the number of persons who may enter the courthouse and each courtroom." The Zoom hearing is accessible by cell phone, tablet, computer, or similar device.7
2. Discussion. The defendant argues that a Zoom hearing on an evidentiary motion to suppress would violate several of his State and Federal constitutional rights.8 Specifically, the defendant contends that a Zoom hearing would violate his right to be present, to confrontation, to a public trial, and to effective assistance of counsel.
a. Right to be present. Rule 18 (a) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 887 (1979), provides that a defendant has the right to be present at all critical stages of court proceedings. "This right to be present 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." Robinson v. Commonwealth, 445 Mass. 280, 285, 837 N.E.2d 241 (2005). A suppression hearing constitutes a critical stage at which the defendant has a right to be present. See Commonwealth v. Campbell, 83 Mass. App. Ct. 368, 372, 983 N.E.2d 1227 (2013). See generally Robinson, supra at 286, 837 N.E.2d 241 ().
Whether a virtual hearing satisfies the defendant's right to be present at a motion to suppress hearing presents a novel question. The defendant argues that he has a right to be present at a hearing on a motion to suppress pursuant our State and Federal Constitutions, common law, and Mass. R. Crim. P. 18. He further argues that the word "presence" means physical presence and that a Zoom hearing would violate his due process rights. Although the right to be present at a motion to suppress hearing is implicated by the facts of this case, it is not violated by a virtual hearing. We conclude that, in certain circumstances, a motion to suppress hearing may be conducted by video conference without violating the defendant's right to be present, so long as the video conferencing technology provides adequate safeguards.
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