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Commonwealth v. Fontanez

Supreme Judicial Court of Massachusetts, Suffolk

April 16, 2019

COMMONWEALTH
v.
RAFAEL FONTANEZ

          Heard: December 4, 2018.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 25, 2017.

         The case was considered by Gaziano, J.

          David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

          Thomas D. Frothingham for the defendant.

          Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.

          LOWY, J.

         The 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.

         Background.

         For 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.

         The 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.

         Pursuant 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.[1] 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.

         Discussion.

         "In 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).

         A single justice faced with a G. L. c. 211, § 3, petition performs a two-step inquiry. We address each step in turn.

         1. Step 1: Whether to review ...


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