Heard: December 4, 2018.
action commenced in the Supreme Judicial Court for the county
of Suffolk on September 25, 2017.
case was considered by Gaziano, J.
L. Sheppard-Brick, Assistant District Attorney, for the
D. Frothingham for the defendant.
Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker,
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.
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.
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.
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. 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.
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 (2018), quoting
Rogan v. Commonwealth, 415 Mass.
376, 378 (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 (2017), cert, denied, 138
S.Ct. 1038 (2018), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
single justice faced with a G. L. c. 211, § 3, petition
performs a two-step inquiry. We address each step in turn.
Step 1: Whether to review ...