Commonwealth v. Fontanez
120 N.E.3d 707
Mass.2019Background
- Defendant Rafael Fontanez was indicted for armed assault with intent to murder and related charges after a bar stabbing; the victim identified Fontanez in a photographic array at a suppression hearing.
- Fontanez moved to remain out of view during the suppression hearing; the motion was granted and he sat behind the judge's bench so witnesses could not see him.
- The victim testified at the suppression hearing identifying the defendant, but later died before trial.
- A different Superior Court judge excluded the victim's prior recorded testimony at trial, concluding admission would violate the defendant's face‑to‑face confrontation right under art. 12 because Fontanez had been out of view at the suppression hearing.
- The Commonwealth petitioned a single justice under G. L. c. 211, § 3 to vacate that exclusion; the single justice denied review. The Commonwealth appealed to the full court.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Fontanez) | Held |
|---|---|---|---|
| 1) Whether the single justice abused discretion in denying review under G. L. c. 211, § 3 | Case is exceptional because exclusion of the victim's testimony effectively forecloses prosecution of a serious crime and raises important constitutional issues | Single justice properly declined extraordinary review of an evidentiary ruling | Court: single justice abused discretion; case is exceptional and merits review |
| 2) Admissibility of prior recorded testimony of now‑deceased victim | Prior testimony meets hearsay exception and Confrontation Clause standards (victim unavailable; prior proceeding offered reasonable opportunity and similar motive for cross‑examination) | Admission violates art. 12 because defendant did not confront witness face to face at prior proceeding | Court: prior testimony admissible; hearsay and confrontation criteria satisfied |
| 3) Effect of defendant sitting out of view (face‑to‑face claim) | Defendant waived any face‑to‑face right by electing to be out of view; waiver permits admission | Absence of face‑to‑face confrontation at prior proceeding precludes admission | Court: waiver applies; tactical choice to sit out waived face‑to‑face objection; exclusion was error |
| 4) Whether prior hearing provided adequate opportunity/motive for cross‑examination | Suppression hearing afforded oath, counsel, record, substantially same issues, and adequate opportunity (defense extensively questioned and impeached victim) | Prior hearing issues/motives differed; thus prior testimony unreliable or inadequately tested | Court: factors for adequate prior cross‑examination are met; admissibility proper and reliability is for the jury |
Key Cases Cited
- Commonwealth v. Caruso, 476 Mass. 275 (2017) (sets five‑factor rubric for assessing whether defendant had adequate prior opportunity to cross‑examine)
- Commonwealth v. Trigones, 397 Mass. 633 (1986) (prior recorded testimony admissible where prior proceeding addressed substantially same issues and party had similar motive/opportunity)
- Commonwealth v. Fisher, 433 Mass. 340 (2001) (explains hearsay exception for prior testimony and unavailability requirement)
- Commonwealth v. Arrington, 455 Mass. 437 (2009) (discussed reliability of prior hearing testimony; Court clarifies reliability is not a separate barrier when statutory factors are met)
- Commonwealth v. Housewright, 470 Mass. 665 (2015) (addresses admissibility of testimony about a witness's out‑of‑court identification)
- Commonwealth v. Amirault, 424 Mass. 618 (1997) (recognizes face‑to‑face confrontation right but that it may be waived or accommodated)