State v. Tate
| Decision Date | 03 January 2022 |
| Docket Number | A21-0359 |
| Citation | 969 N.W.2d 378 |
| Parties | STATE of Minnesota, Respondent, v. Kim Marie TATE, Appellant. |
| Court | Minnesota Court of Appeals |
Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul, Minnesota; and Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and Kirk, Judge.*
The Confrontation Clause of the Sixth Amendment—like its counterpart in the Minnesota Constitution—provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI ; Minn. Const. art. I, § 6. And that confrontation predominantly requires a face-to-face meeting. See Coy v. Iowa , 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). This case places squarely before us whether the Confrontation Clause, a linchpin of our constitution, prohibits a witness from testifying against a defendant at trial, outside the defendant's physical presence, by two-way, live, remote video technology.
The setting is the COVID-19 pandemic. The witness was quarantined due to a known exposure to COVID-19.1 The district court permitted the witness's testimony via the Zoom platform.2 To determine whether use of this two-way, live, remote video technology violated appellant Kim Marie Tate's Sixth Amendment rights, we must determine the appropriate test for assessing whether an exception exists to the Sixth Amendment's strong preference for in-person confrontation. The test, we determine, is established in Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666. It states that a defendant's Sixth Amendment confrontation right "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." Craig , 497 U.S. at 850, 110 S.Ct. 3157. Applying that test to the facts before us, we conclude that Tate's Confrontation Clause rights were not violated when the district court permitted a police officer to testify via live, remote, two-way video technology based upon a specific, particularized health concern. We therefore affirm.
In March 2018, Tate sold methamphetamine to a confidential informant as part of a controlled buy conducted by agents with the West Central Drug and Violent Crimes Task Force (the task force).
Three task-force agents, including a sheriff's deputy, a police officer, and a special agent,3 met with the confidential informant before the controlled buy. Prior to the controlled buy, the task-force agents searched the confidential informant and his car, and provided him with an audio transmitting and recording device and pre-documented money to purchase methamphetamine. The task-force agents conducted surveillance during the controlled buy and listened to the audio device's live feed while it was recording. Agents heard three voices on the audio feed and identified the individuals as the confidential informant, Tate, and an unknown individual at Tate's home. The entire controlled buy was captured on the audio recording.
The confidential informant remained at Tate's home for approximately 45 minutes. After completing the sale, the informant returned to meet with the task force agents for a post-sale meeting. All three task-force agents were present for this meeting. The confidential informant gave the task-force agents the drugs he purchased from Tate. Analysts with the Minnesota Bureau of Criminal Apprehension later identified the drugs as 1.265 grams of methamphetamine. Respondent State of Minnesota subsequently charged Tate with one count of third-degree controlled-substance crime, sale, in violation of Minnesota Statutes section 152.023, subdivision 1(1) (2016).
The district court scheduled the case for trial on November 16-17, 2020. Four days before trial, the special agent was exposed to a person who tested positive for COVID-19. Public health officials instructed the special agent to quarantine as a precautionary measure. The state requested permission for the special agent to testify remotely at trial via Zoom. The state asserted that his testimony was "fundamental" to its case. Tate objected to the state's request on the ground that it violated her rights under the Confrontation Clause. Tate requested a trial continuance "to allow for this witness to be out of quarantine and testify in person."
The district court held a hearing to consider both the state's request to use live, remote, two-way video technology and Tate's request for a continuance. The district court stated, "Obviously the Court's focus is on the safety of anyone who will be in the courtroom." It further noted:
The district court then granted the state's request to allow the witness to testify via live, remote, two-way video technology and denied Tate's continuance request.
The matter proceeded to trial. The state called two of the task-force agents to testify in person. It also called the special agent to testify remotely over Zoom. Prior to the special agent's testimony, the district court instructed the jury as follows:
Our first witness today will be appearing on the video screen remotely. That is a result of the pandemic. But you are to judge the credibility just as a live witness with the factors that I had given you, and any other factors you believe bear on the credibility and weight; that that is to be considered live testimony, to be judged as you have been judging the credibility of any other witness that appears live.
The special agent testified that he was a member of the task force and met with the confidential informant and the other two task-force agents before the controlled buy. The special agent stated that he listened to the audio transmitting live feed while the informant travelled to Tate's house, and also maintained visual surveillance. He also noted that he performed a pat-down search of the confidential informant both before and after the controlled buy.
During final jury instructions, the district court gave the following instruction to the jury regarding COVID-19 procedures generally:
Throughout the trial, you have seen a number of safety precautions implemented in an effort to minimize the potential spread of Covid-19. Many of these steps may have made this process less comfortable or less convenient. However, you should not draw any inference from these procedures against the state or the defendant. The judicial branch enacted these precautions, and it is my responsibility to implement them in this courtroom for everyone's safety.
The jury found Tate guilty of the charged offense and the district court convicted her and imposed a sentence. This appeal follows.
ISSUES
The Sixth Amendment right to confront witnesses long predates the constitution that now enshrines it.
Crawford v. Washington , 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This right presumes—and expresses a strong preference for—face-to-face confrontation at trial. Craig , 497 U.S. at 845-46, 110 S.Ct. 3157.
But the right to personally confront witnesses is not absolute. Before us is a question of the boundaries of this bedrock right in the context of a global pandemic. To resolve this particular confrontation dilemma—whether the district court improperly permitted an officer to testify via live, remote, two-way video technology—we first must determine the appropriate Confrontation Clause test to apply in Minnesota in these circumstances. We then consider whether the district court violated Tate's confrontation right by permitting one of the state's witnesses to testify via live, remote, two-way video technology when the witness was in quarantine for exposure to the COVID-19 virus. We review both issues de novo. Olson v. One 1999 Lexus , 924 N.W.2d 594, 601-04 (Minn. 2019) (); State v. Caulfield , 722 N.W.2d 304, 308 (Minn. 2006) ().
The only time the United States Supreme Court addressed the Confrontation Clause implications of testimony by live video came in Maryland v. Craig . And the only time a Minnesota court grappled with the same dilemma, we relied upon the Craig decision to guide us. State v. Sewell , 595 N.W.2d 207 (Minn. App. 1999) ().4 Yet Tate...
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