Petition for Writ of Certiorari — Enrique Auch, Petitioner v. Massachusetts

Supreme Court briefMar 3, 2020

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

ENRIQUE AUCH, Petitioner

VV.

MASSACHUSETTS, Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MASSACHUSETTS APPEALS COURT

PETITION FOR WRIT OF CERTIORARI

STEPHEN PAUL MAIDMAN, ESQUIRE

Counsel of Record

1145 Main Street, Suite 417

Springfield, Massachusetts 01103-2123

(413) 731-7300 (Voice & Fax)

malidman@att.net

Question Presented

Whether the Confrontation Clause permits the prosecution to

introduce out-of-court testimonial statements from a witness who

1s feigning memory loss and who then refuses to defend or explain

his out-of-court testimonial statements on cross-examination by

the defense?

Parties to the Proceedings

The parties to the proceeding below are contained in the

caption of the case.

Table of Contents

Question Presented

Parties to the Proceedings

Table of Contents.

Table of Authorities

Opinions Below

Jurisdiction

Constitutional Provisions Involved

Statement of the Case.

Procedural History

Facts Relating to The Underlying Offenses.

The Boston Police Respond to a Shooting.

The Shooting Outside 58 Annunciation Road.

The Surveillance Videos.

Juan Carlos Garcia's Testimony

The Decision of the Massachusetts Appeals Court.

Reasons for Granting the Petition.

I. Introduction.

II. The Petitioner was denied his constitutional

rights to the opportunity to fully and

effectively cross-examine the prosecution's

principal identification witness.

A. The Confrontation Clause tolerates the

admissibility for substantive purposes

of a declarant's inconsistent out-ofcourt statements where the declarant

testifies at trial, but only so long

as the defendant has a full and

effective opportunity for cross-

examination.

B. The decision below misconstrues the

Confrontation Clause. The Petitioner

was denied his rights under the Sixth

Amendment's Confrontation Clause when

Juan Carlos Garcia refused to answer

any substantive questions on crossexamination.

III. This case is an excellent vehicle for

addressing the question presented

Conclusion

Appendix A

Transcript of Testimony of Juan Carlos Garcia.

Opinion of the Massachusetts Appeals Court

Order of the Massachusetts Supreme Judicial Court

Denying Discretionary Review

Appendix B

Sixth Amendment and Fourteenth Amendment to the

United States Constitution.

App.

111

Table of Authorities

Cases

Barber v. Page,

390 U.S. 719 (1968)

Berger v. California,

393 U.S. 314 (1969)

Bruton v. United States,

391 U.S. 123 (1968)

Bullcoming v. New Mexico,

564 U.S. 647 (2011)

California v. Green,

399 U.S. 149 (1970)

Chambers v. Mississippi,

410 U.S. 284 (1973)

Commonwealth v. Andrade,

481 Mass. 139 (2018).

Commonwealth v. Daye,

393 Mass. 55 (1984)

Commonwealth v. Maldonado,

466 Mass. 742 (2014).

Commonwealth v. Sineiro,

432 Mass. 735 (2000).

Crawford v. Washington,

541 U.S. 36 (2004).

Davis v. Alaska,

415 U.S. 308 (1974).

Delaware v. Fensterer,

474 U.S. 15 (1985).

Delaware v. Van Arsdall,

475 U.S. 673 (1986)

Douglas v. Alabama,

380 U.S. 400 (1965)

1vV

passim

10,19

passim

11,14,20

passim

15,19

In re Oliver,

333 U.S. 257 (1948) .....0.¢6.2C~<C Sa 13

Kentucky v. Stincer,

482 U.S. 730 (1987) ... . . . ee 13,18

Lee v. Illinois,

476 U.S. 530, 540 (1986)... . ..06.¢6.C~ Ran 13

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ......¢.¢«.¢«.~¢«.~¢.~¢.0¢0.0¢6.0C=R8L—~=—E 12,14

Pennsylvania v. Ritchie,

480 U.S. 39 (1987)... . . eee, 13

Pointer v. Texas,

380 U.S. 400 (1965) ......06.¢62 hk lg 12,13

Preston v. Superintendent Graterford SCI,

902 F.3d 365 (3d Cir. 2018) ..........2.~. 21

Tennessee v. Street,

471 U.S. 409 (1985) .... . 0.0. en 14

United States v. Fiore,

443 F.2d 112(2d Cir. 1971)... .. ....«.~«.¢«.0¢4~4 21

United States v. Owens,

484 U.S. 554 (1988) .......¢.¢.~¢.¢.0¢6.0¢6.0C<=~RhC~CRsiaatws 16, 17,18,21

United States v. Torrez-Ortega,

184 F.3d 1128 (10th Cir. 1999). ........2.~. 19,21

White v. Illinois,

502 U.S. 346 (1992) .....¢.¢.¢0.0¢6.,0 C068C~ Ce 19

Federal Constitutional Provisions

Sixth Amendment ........ . . 2... 2. 2. 2. ee. passim

Fourteenth Amendment. .........¢«.¢«.¢«.¢.~¢.0¢.~% 2,12,21

28 U.S.C. § 1257(a)

Mass. Gen. Laws c. 265,

Mass. Gen. Laws c. 269,

Mass. R. Crim. P. 25.

5 John Wigmore,

Statutes

Court Rules

Other Authorities

Evidence § 1395 (3d ed. 1940)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

ENRIQUE AUCH, Petitioner

VV.

MASSACHUSETTS, Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE MASSACHUSETT APPEALS COURT

Enrique Auch respectfully petitions this Court for a writ of

certiorari to review the judgment of the Massachusetts Appeals

Court in his case.’

Opinions Below

The slip opinion of the Massachusetts Appeals Court in this

case 1s included in Appendix A. The opinion is unpublished, but

* References to Appendix A and Appendix B to this petition

will be cited by page number respectively as "App. A. Page" and

"App. B. Page". The transcript of the Petitioner's trial in the

Suffolk County Superior Court will be cited by volume number and

page number as "Tr. Volume/Page". Since some volumes of the

trial transcript were not consecutively designated by the court

reporters, the undesignated volumes will be referred to herein as

follows: October 5, 2017 (afternoon session) - Volume IX (A);

October 6, 2017 - Volume X; October 10, 2017 - Volume XI.

the disposition is reported at 96 Mass. App. Ct. 1106 (2019)

(table). The slip opinion is available at 2019 WL 5395609. The

order of the Massachusetts Supreme Judicial Court denying further

appellate review is included in Appendix A. That disposition is

reported at 483 Mass. 1107 (2019) (table) and 2019 WL 7424755.

Jurisdiction

The Massachusetts Appeals Court entered its judgment on

October 22, 2019. The Massachusetts Supreme Judicial Court

entered an order denying discretionary review on December 23,

2019. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257 (a).

Constitutional Provisions Involved

The relevant federal constitutional provisions that are

involved in this case are the Sixth Amendment and the Fourteenth

Amendment. They are set forth in Appendix B.

Statement of the Case

Procedural History

On March 24, 2016, the Grand Jury of the Suffolk County

Superior Court returned six indictments against the Petitioner.

The Grand Jury accused the Petitioner of the murder of D'Andre

King-Settles.’

The Petitioner's jury trial in the Suffolk County Superior

Court commenced on September 25, 2017 with Associate Justice

Mitchell H. Kaplan presiding. Tr. I1/14.* The Petitioner was

tried with his co-defendant Tsunami Ortiz. Tr. I/15.

The jury began its deliberations on October 4, 2017 and

returned its verdicts on October 6, 2017. Tr. VIII/110, Tr. X/4.

* Indictment Number 1684CR00216-001 accused the Petitioner

of the crime of murder, in violation of Mass. Gen. Laws c. 265,

§ 1. Indictment Number 1684CR00216-002 accused the Petitioner of

the crime of armed assault with intent to murder (victim Jaquan

McIver-Bennett) in violation of Mass. Gen. Laws c. 265, § 18(b).

Indictment Number 1684CR00216-003 accused the Petitioner of the

crime of armed assault with intent to murder (victim Juan Carlos

Garcia) in violation of Mass. Gen. Laws c. 265, § 18(b).

Indictment Number 1684CR00216-004 accused the Petitioner of the

crime of assault and battery by means of a dangerous weapon

(victim Jaguan McIver-Bennett) in violation of Mass. Gen. Laws c.

265, § 15A. Indictment Number 1684CR00216-005 accused the

Petitioner of the crime of carrying a firearm without a license

in violation of Mass. Gen. Laws c. 269, § 10(a). Indictment

Number 1684CR00216-006 accused the Petitioner of the crime of

carrying a loaded firearm in violation of Mass. Gen. Laws c. 269,

§ 10(n).

> On October 3, 2017, the Petitioner's motion for a required

finding of not guilty at the close the Commonwealth's case

pursuant to Rule 25 of the Massachusetts Rules of Criminal

Procedure was denied except with respect to Indictment Number

1684CRO0216-004 accusing the Petitioner of the crime of assault

and battery by means of a dangerous weapon (victim Jaquan McIver-

Bennett) which was dismissed. Tr. VII/133. The Petitioner's

motion for a required finding of not guilty at the close of all

the evidence was also denied. Tr. VII/133.

The jury found the Petitioner guilty of second-degree murder.

Tr. X/4.*

On October 10, 2017, the Court imposed a life sentence in

state prison on the Petitioner for his second-degree murder

conviction with the possibility of parole in 15 years. Tr.

XI/17-18.° The Petitioner timely appealed his convictions.

The Petitioner's case was entered on the docket of the

Massachusetts Appeals Court on August 27, 2016. Oral argument

was heard on September 11, 2019. On October 22, 2019, the

Appeals Court released a Memorandum and Order Pursuant to Rule

1:28, a copy of which is appended hereto, which affirmed the

judgments.

The Petitioner filed an application for further appellate

review of his convictions in the Massachusetts Supreme Judicial

Court on November 12, 2019 (Docket No. FAR-27160). On December

23, 2019, further appellate review was denied.

“ The jury found the Petitioner guilty of the lesser

included offenses of assault with a dangerous weapon, in

violation of Mass. Gen. Laws c. 265, § 15B(b), on both of the

indictments for armed assault with intent to murder (victims

Jaquan McIver-Bennett and Juan Carlos Garcia). Tr. X/4-5. The

jury returned not guilty verdicts on the indictments for carrying

a firearm without a license and for carrying a loaded firearm.

Tr. X/5.

> The Petitioner was sentenced to four years to five years

in state prison on his convictions for assault with a dangerous

weapon. Tr. VIII/9. Both sentences run concurrently with the

sentence imposed on the second-degree murder conviction. Tr.

XI/16-17.

Facts Relating to The Underlying Offenses

The Boston Police Respond to a Shooting

On December 18, 2015 at about 4:00 PM, Officer Timothy

Cullen of the Boston Police Department went to Annunciation Road

in the Roxbury section of Boston in response to a radio call for

shots fired. Tr. IV/141, Tr. 143-144, Tr. V/98.° Officer Cullen

walked around until he found a dead body positioned face down in

the middle of a grassy area. Tr. IV/144-146.” The deceased was

subsequently identified as D'Andre King-Settles. Tr. IV/46, Tr.

VII/14, Tr. VII/72.

The Shooting Outside 58 Annunciation Road

Juan Carlos Garcia was friends with D'Andre King-Settles.

Tr. III/113, Tr. III/121, Tr. III/155. He hung out with him

every day after school. Tr. III/122.

Garcia was with King-Settles on the day King-Settles died.

Tr. III/116. That day, Garcia happened to encounter King-Settles

on the street near King-Settles's mother's house. Tr. III/122-

° This area is referred to variously as Annunciation Road,

the Annunciation Road development, or the Annunciation projects.

Tr. IV/142, Tr. VII/34. It is in the Mission Hill neighborhood.

Tr. IV/142, Tr. VII/39. This is a large apartment complex with

many residents. Tr. IV/149. The residences are owned by the

Boston Housing Authority and are known as the Alice Taylor

Housing Development. Tr. V/98, Tr. V/100, Tr. VII/39, Tr.

VII/53.

’ There was other testimony that most of the body was

located on pavement; the feet were on mulch and grass facing

Albert Street and Prentiss Street in a diagonal manner and the

head was on pavement facing Annunciation Road. Tr. VII/25-26.

123, Tr. III/157. King-Settles was with another person named

Jaquan McIver-Bennett. Tr. III/123, Tr. III/151, Tr. III/152,

Tr. III/157.°

After Garcia met up with King-Settles and McIver-Bennett

that day, because it was raining out, the three of them walked

towards the building located at 58 Annunciation Road to stay dry.

Tr. III/124-125, Tr. III/154. King-Settles went off to his

mother's house to throw out her trash. Tr. III/125. The plan

was for Garcia and McIver-Bennett to wait inside the building for

King-Settles. Tr. III/125.°

While waiting a short period of time for King-Settles to

arrive, Garcia and McIver-Bennett stayed dry and talked in the

hallway on the third floor of 58 Annunciation Road. Tr. III/125-

126, Tr. III/153, Tr. III/154. King-Settles came up about five

to seven minutes later. Tr. III/126.?°

When King-Settles arrived, the three men dapped (e.g., shook

hands) in the hallway and got into the elevator. Tr. III/126-

127. They eventually got off the elevator and left the building.

®° McIver-Bennett refused to testify at the Petitioner's

trial and was jailed for civil contempt. Tr. VII/77-78, Tr.

VII/139-141.

7 58 Annunciation Road is a high-rise building that abuts

Albert Street. Tr. VII/28, Tr. VII/37. The front doors to the

building are never locked; the locks are either unlocked or

broken. Tr. VII/32.

‘0 There was testimony that it would not be unusual for the

Boston Housing Authority Police to receive calls to about kids

hanging out in the stairwells or hallways. Tr. V/104-105.

Tr. III/127, Tr. III/128. McIver-Bennett walked out of the

building first, followed by King-Settles, and then Garcia. Tr.

ITII/128. Garcia did not see anyone behind him or observe anyone

leaving the building after him. Tr. III/128-129.

After leaving the building, the three men took a right and

walked side-by-side together. Tr. III/131, Tr. III/132, Tr.

ITII/133. Garcia then heard three gunshots coming from behind

him. Tr. III/133, Tr. III/134, Tr. III/135. During the

gunshots, he turned around for a quick second to see what was

happening. Tr. III/134, Tr. III/135. Garcia saw one person

shooting at them. Tr. III/137. He did not actually see a gun,

but he saw flashes. Tr. III/137.

Garcia ran off through a parking lot and saw a woman with a

stroller next to a car. Tr. III/138, Tr. III/164. Garcia was

not injured. Tr. III/140. He ran home. Tr. III/161, Tr.

TII/165. King-Settles and McIver-Bennett ran off in the same

direction. Tr. III/139.

The Surveillance Videos

The police obtained video surveillance from the Boston

Housing Authority. Tr. V/100, Tr. V/120, Tr. V/154-155."7

‘' There were no exterior surveillance cameras in the

Annunciation Road housing development. Tr. V/99-100. Inside the

building at 58 Annunciation Road, there were surveillance cameras

in the front lobby, the rear entrance, and in the elevator. Tr.

Portions of the video surveillance obtained by the police from

inside 58 Annunciation Road were played for the jury showing the

Petitioner and another individual at the main entrance and the

rear entrance of the building. Tr. V/155; Exhibit 74/Scenes 5,

6, 7, 13, 16.*

At 3:51 PM, the video surveillance from the main entrance

camera shows the Petitioner and another individual coming into 58

Annunciation Road. Exhibit 74/Scene 13.

At 3:53 PM, the video surveillance from the front entrance

camera shows two individuals, whom the jury could reasonably

infer were Garcia and McIver-Bennett, coming into 58 Annunciation

Road and entering the elevator. Exhibit 74/Scene 14. At 3:57

PM, the video surveillance from the main entrance camera shows an

individual, whom the jury could reasonably infer was King-

Settles, coming into 58 Annunciation Road and entering the

elevator. Exhibit 74/Scene 15.

At 3:59 PM, the surveillance video from the front entrance

camera shows King-Settles, McIver-Bennett, and Garcia coming out

of the elevator and going out of the building. Exhibit 74/Scene

16. About 9 seconds later, surveillance video from the front

V/100. There were no surveillance cameras in the hallways or

stairways at 58 Annunciation Road. Tr. V/101.

‘2 The Commonwealth and the Petitioner stipulated, "[O]ne of

the two individuals seen walking together in the apartment

building on Annunciation Road is Mr. Enrique Auch. He is the

individual in those videos who was wearing the black, red and

white jacket and khaki pants." Tr. VII/82.

entrance camera shows the Petitioner going out the building

Followed by the individual who entered the building with him.

Exhibit 74/Scene 16.

Juan Carlos Garcia's Testimony

The Commonwealth called Juan Carlos Garcia as a witness.

Tr. III/112-150.** After Garcia gave non-responsive answers to

some preliminary questions from the Commonwealth, the trial judge

declared Garcia was feigning lack of memory. Tr. III/117. The

trial judge then permitted the Commonwealth to read to the jury

questions and answers from Garcia's previous grand jury

testimony. *

The Petitioner expressed his concern that if Garcia's grand

jury testimony was read to the jury and could be used as

substantive evidence, "that's going to effectively do away with

my right to a meaningful cross examination." Tr. III/118-119.

The trial judge ruled, "[Y]ou can cross-examine because he's here

in court and capable of being cross-examined." Tr. III/119. The

‘* The complete transcript of Garcia's testimony is

reproduced in Appendix A. Citations herein are to the original

trial transcript page numbers.

‘“ The Court permitted this in accordance with Commonwealth

v. Daye, 393 Mass. 55 (1984). See also Commonwealth v.

Maldonado, 466 Mass. 742, 754-755 (2014), citing Commonwealth v.

Sineiro, 432 Mass. 735, 745 & n.12 (2000) (extending Daye to

encompass grand jury testimony of a witness who judge determines

is "falsifying a lack of memory.").

Petitioner and his co-defendant objected. Tr. III/119. The

Petitioner subsequently renewed his objection. Tr. III/141.

The Commonwealth was able to present its factual version of

what happened inside and outside of 58 Annunciation Road on the

day of the shooting by reading the questions and answers from

Garcia's grand jury testimony to the jury. Most importantly from

the Commonwealth's perspective, the Commonwealth was able to read

to the jury the description Garcia gave of the shooter to the

grand jury. Tr. III/143-147.*°

The Petitioner and his co-defendant then futilely attempted

to cross-examine Garcia and essentially obtained the same nonresponsive, "I don't recall" answers like those previously

elicited by the Commonwealth. Tr. III/150-166, Tr. IV/74-86.'°

The Decision of the Massachusetts Appeals Court

The principal issue on appeal was the denial of the

Petitioner's confrontation rights. The Massachusetts Appeals

Court issued its Memorandum and Order Pursuant to Rule 1:28 on

October 22, 2019 affirming the Petitioner's convictions. Quoting

Commonwealth v. Andrade, 481 Mass. 139, 143 (2018), the Appeals

*- Garcia described the shooter as a man having a little

darker skin color than himself. Tr. III/144. He did not see the

person's face. Tr. III/146-147. The shooter was wearing a gray

or black hoodie (with the hood up) and a thin black rain jacket

that went down past his belt. Tr. III/145-146. He was wearing

khaki pants. Tr. III/145.

“© Garcia claimed he did not remember testifying in the

grand jury. Tr. III/117; Tr. IV/75-76, Tr. IV/80-81.

Court noted, "any limitation on the effectiveness of a crossexamination of a witness who has been found to have feigned

memory loss generally does not implicate the confrontation

clause" (quotations and citation omitted). Slip op. at 4. The

Appeals Court held, "Because under the case law the Petitioner

had the opportunity effectively to cross-examine the witness, we

conclude that the confrontation clause was not violated by the

Commonwealth's introduction of Garcia's grand jury testimony."

Slip op. at 5.

Reasons for Granting the Petition

I. Introduction

This Court should grant the petition because the decision of

the Massachusetts Appeals Court contradicts the Supreme Court's

holdings that the Sixth Amendment guarantees the Petitioner an

adequate opportunity to cross-examine the declarant with respect

to out-of-court testimony.

This Court has made clear that an adequate opportunity to

cross-examine is not satisfied by merely affording the Petitioner

any opportunity to cross-examine the declarant at trial.

"Confrontation means more than being allowed to confront the

witness physically." Davis v. Alaska, 415 U.S. 308, 315 (1974);

see also California v. Green, 399 U.S. 149, 158 (1970)

(Confrontation Clause requires witness be "subject to full and

effective cross-examination").

At the very least, the Confrontation Clause requires that

the witness must be willing and able "to defend or explain" his

out-of-court statement. Crawford v. Washington, 541 U.S. 36, 59

n.9 (2004). The record shows that did not happen in this case.

Regardless of the reason why Garcia would not or could not answer

questions about his grand jury testimony, the Petitioner was

deprived of his ability to "try to expose [the declarant's]

accusation as a lie" through guestioning. Crawford v.

Washington, 541 U.S. at 62.

II. The Petitioner was denied his constitutional rights to the

opportunity to fully and effectively cross-examine the

prosecution's principal identification witness.

The Sixth Amendment and the Fourteenth Amendment to the

Constitution guarantee to the criminal defendant the right to be

confronted with the witnesses against him. Bullcoming v. New

Mexico, 564 U.S. 647, 658 (2011); Melendez-Diaz v. Massachusetts,

557 U.S. 305, 309 (2009) .*’ See Crawford v. Washington, 541 U.S.

36, 51 (2004) (noting defendant's right to confront and crossexamine witnesses against him under Confrontation Clause of Sixth

Amendment applies to those who bear testimony against him).

"The Confrontation Clause provides two types of protections

for a criminal defendant: the right physically to face those who

‘’ The Confrontation Clause of the Sixth Amendment was made

obligatory on the states by the Fourteenth Amendment. Pointer v.

Texas, 380 U.S. 400, 403 (1965).

testify against him, and the right to conduct cross-examination."

Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987).

Not only does the "right to confront and cross-examine

adverse witnesses" under the Sixth Amendment contribute to the

perception as well as the reality of fairness in the criminal

justice system, it is "primarily a functional right that promotes

reliability in criminal trials." Lee v. Illinois, 476 U.S. 530,

540 (1986) (emphasis added). See Kentucky v. Stincer, 482 U.S.

730, 737 (1987) (noting the right to cross-examination is a

functional right designed to promote reliability in the truth-

finding functions of criminal trials); Berger v. California, 393

U.S. 314, 315 (1969) (observing inability to cross-examine

critical witness may have had significant effect on the integrity

of fact-finding process); Barber v. Page, 390 U.S. 719, 721

(1968) (noting important objective of right of confrontation is to

guarantee factfinder has adequate opportunity to assess the

credibility of witnesses) .*

The Supreme Court's Sixth Amendment Confrontation Clause

Jurisprudence primarily comprises two broad categories of

‘8 The denial of the criminal defendant's right to crossexamination under the Sixth Amendment also implicates due

process. See In re Oliver, 333 U.S. 257, 273 (1948) (noting

failure to afford defendant the right to cross-examine witnesses

is a denial of due process). See also Pointer v. Texas, 380 U.S.

400, 405 (1965) ("the right of confrontation and cross-examination

1s an essential and fundamental requirement for the kind of fair

trial which is this country's constitutional goal.").

decisions, cases involving the admission of out-of-court

statements against the defendant and cases restricting the scope

of the defendant's cross-examination. Delaware v. Fensterer, 474

U.S. 15, 18 (1985) (per curiam).

The first category of cases raises Confrontation Clause

issues because "hearsay evidence was admitted as substantive

evidence against the defendants." Tennessee v. Street, 471 U.S.

409, 413 (1985).’?

The second category of cases raises Confrontation Clause

issues because although the court permitted some crossexamination of the prosecution witness, the court did not allow

the defendant to "expose to the jury the facts from which jurors,

as the sole triers of fact and credibility, could appropriately

draw inferences relating to the reliability of the witness."

Davis v. Alaska, 415 U.S. 308, 318 (1974) .*°

"2 See e.g., Crawford v. Washington, 541 U.S. 36, 51 (2004)

(ruling inadmissible statement given to police by non-testifying

witness where non-testifying witness not subject to prior crossexamination); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309

(2009) (ruling inadmissible drug composition certificate prepared

by non-testifying witness where non-testifying witness not

subject to prior cross-examination); Bruton v. United States, 391

U.S. 123, 126-128 (1968) (ruling inadmissible non-testifying

accomplice confession against defendant accompanied by limiting

instruction where non-testifying accomplice not subject to prior

cross-examination). This category of cases plainly acknowledges

the Court's historical recognition that the "literal right to

'confront' the witness at the time of trial .. . forms the core

of the values furthered by the Confrontation Clause." California

v. Green, 399 U.S. 149, 157 (1970).

29 See e.g., Delaware v. Van Arsdall, 475 U.S. 673 (1986)

(judge's ruling prohibiting defendant's cross-examination

These two categories of Confrontation Clause cases

demonstrate the primary interest secured by the Confrontation

Clause is the right to cross-examination. See Douglas v.

Alabama, 380 U.S. 400, 418 (1965) (noting an adequate opportunity

for cross-examination may satisfy the requirements of the

Confrontation Clause even in the absence of physical

confrontation). The right to cross-examination remains so

important to our justice system because it "reflects a judgment"

that the reliability of a witness' testimony is best determined

by adversarial testing in the "crucible of cross-examination."

Crawford v. Washington, 541 U.S. 36, 61 (2004).

The Supreme Court has reviewed Confrontation Clause cases

which do not fit into either category. The Court has considered

Situations where the witness' lapse of memory, actual or

professed, or the witness! evasion or refusal to answer questions

may so frustrate the defendant's opportunity for crossexamination that admission of the witness! direct testimony may

violate the Confrontation Clause.?”!

regarding potential bias resulting from state's dismissal of

witness' pending charge violated Confrontation Clause); Chambers

v. Mississippi, 410 U.S. 284, 294-295 (1973) (holding evidentiary

rule prohibiting cross-examination or impeachment of party's own

witness denied defendant due process and recognizing "the rights

to confront and cross-examine witnesses and to call witnesses in

one's own behalf have long been recognized as essential to due

process.").

*1 See e.g., Delaware v. Fensterer, 474 U.S. 15, 22 (1985)

(Confrontation Clause not offended where FBI expert witness

opinion admitted despite expert being unable to recall the basis

The Confrontation Clause does not offer the defendant a

Guarantee that every prosecution witness will not give forgetful,

confused, or evasive testimony. Delaware v. Fensterer, 474 U.S.

15, 21-22 (1985). Instead, "the Confrontation Clause is

generally satisfied when the defense is given a full and fair

opportunity to probe and expose those infirmities through crossexamination, thereby calling to the attention of the factfinder

the reasons for giving scant weight to the witnesses testimony."

Id. at 22 (emphasis added).

A. The Confrontation Clause tolerates the admissibility

for substantive purposes of a declarant's inconsistent

out-of-court statements where the declarant testifies

at trial, but only so long as the defendant has a full

and effective opportunity for cross-examination.

The Confrontation Clause is not violated when a declarant's

out-of-court inconsistent statements are admitted for substantive

purposes if the factfinder can observe the declarant testify as a

witness and is subject to full and effective cross examination.

for his own expert opinion); United States v. Owens, 484 U.S. 554

(1988) (introduction of memory impaired victim's out-of-court

identification of defendant admissible even though victim

testified at trial that he could not remember seeing his

assailant or whether any hospital visitor had suggested the

defendant was his assailant); California v. Green, 399 U.S. 149,

164 (1970) ("([T]he Confrontation Clause does not require excluding

from evidence the prior statements of a markedly evasive and

uncooperative witness who concedes making the statements and who

may be asked to defend or otherwise explain the inconsistency

between his prior and his present version of the events in

question, thus opening himself to full-cross examination at trial

as to both stories.").

See California v. Green, 399 U.S. 149, 158 (1970) (noting it is

"the literal right to 'confront' the witness at the time of trial

that forms the core of the values furthered by the Confrontation

Clause"). The theory is that as long as the defendant is assured

of full and effective cross examination of the declarant at the

time of trial, the usual dangers of hearsay resulting from the

substantive use of the prior out-of-court inconsistent statements

are largely nonexistent. Id. at 155, 158-159. But in Green, the

Court had to remand the case to determine whether the declarant's

apparent lapse of memory at trial so affected the defendant's

right to cross-examine the declarant so as to make a critical

difference in the application of the Confrontation Clause. Id.

at 168-169 & n.18.

The issue of whether the admission of out-of-court

identification testimony violated the Confrontation Clause, where

declarant was subject to cross-examination and had actual and

complete memory loss regarding the basis for his out-of-court

identification of the defendant, was squarely presented in United

States v. Owens, 484 U.S. 554 (1988) .°** The Court allowed the

declarant's out-of-court identification despite the declarant's

** The Supreme Court has not held that a Confrontation

Clause violation can be grounded on a witness! loss of memory,

but in two older cases, Delaware v. Fensterer, 474 U.S. 15, 18,

24 (1985) (per curiam) and California v. Green, 399 U.S. 149, 157-

164 (1970), the Court left that possibility open. United States

v. Owens, 484 U.S. 554, 557-558 (1988).

severely impaired memory because "[t]he Confrontation Clause

gQGuarantees only 'an opportunity for effective cross-examination,

not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish'". Id. at 559, quoting

Kentucky v. Stincer, 482 U.S. 730, 739 (1987). The Court ruled

in Owens that the defendant was not denied a full and fair

opportunity for cross-examination where the declarant testified

at trial and the defendant could bring out the declarant's bad

memory and other facts tending to discredit his testimony. 484

U.S. at 559-560.*

Most recently, in the Supreme Court's landmark Sixth

Amendment Confrontation Clause decision, Crawford v. Washington,

541 U.S. 36, 59 n.9 (2004), the Court, citing California v.

Green, 399 U.S. 149, 162 (1970), reiterated that when the

declarant is subject to cross-examination, "the Confrontation

Clause places no constraints at all on the use of his prior

testimonial statements." But Justice Scalia added an allimportant caveat: "The Clause does not bar admission of a

statement so long as the declarant is present at trial to defend

or explain it." Id. (emphasis added).

*2 There is nothing in the Owens opinion to suggest that the

victim was feigning memory loss. The victim was a correctional

counselor ina federal prison who was brutally beaten with a

metal pipe. United States v. Owens, 484 U.S. 554, 556 (1988).

B. The decision below misconstrues the Confrontation

Clause. The Petitioner was denied his rights under the

Sixth Amendment's Confrontation Clause when Juan Carlos

Garcia refused to answer any substantive questions on

cross-examination.

The Petitioner expressed his concern that if Garcia's grand

jury testimony was read to the jury and could be used a

substantive evidence, "that's going to effectively do away with

my right to a meaningful cross examination." Tr. III/118-119.

The trial judge ruled, "[Y]ou can cross-examine because he's here

in court and capable of being cross-examined." Tr. III/119.*4

The Massachusetts Appeals Court accepted the trial judge's

ruling. Relying on Commonwealth v. Andrade, 481 Mass. 139, 143

(2018), it explained, "any limitation on the effectiveness of a

cross-examination of a witness who has been found to have feigned

memory loss generally does not implicate the confrontation

clause" (quotations and citation omitted). Slip op. at 4. This

*“ This statement is inconsistent with current controlling

United States Supreme Court Confrontation Clause jurisprudence;

it reflects the narrow view of Justice Harlan in his concurrence

in California v. Green, 399 U.S. 149, 183 (1970), that the

Confrontation Clause is "confined to an availability rule, one

that requires only the production of a witness when he is

available to testify". See United States v. Torrez-Ortega, 184

F.3d 1128, 1133-1134 (10th Cir. 1999) (noting the Supreme Court

has made clear Justice Harlan's position on the Confrontation

Clause was and remains a decidedly minority view), citing White

v. Illinois, 502 U.S. 346, 352-353 &n.5 (1992). It is also

inconsistent with the modern view of the Confrontation Clause

that Justice Scalia expressed in Crawford, "The Clause does not

bar admission of a statement so long as the declarant is present

at trial to defend or explain it." Crawford v. Washington, 541

U.S. 36, 59 n.9 (2004).

decision misconstrues the Confrontation Clause. Confidence in a

statement's reliability "cannot be had except by direct and

personal putting of questions and obtaining immediate answers."

Davis v. Alaska, 415 U.S. 308, 316 (1974), quoting 5 John

Wigmore, Evidence § 1395, at 123 (3d ed. 1940). A witness who

physically takes the stand but is unable or unwilling to provide

"immediate answers" to questions about his prior statement is no

different than a witness who declines to take the witness stand

at all. In either case, the defendant's right to "try to expose

[the declarant's] accusation as a lie" through questioning is

thwarted. Crawford v. Washington, 541 U.S. 36, 62 (2004).

In Douglas v. Alabama, 380 U.S. 415, 419 (1965), the Supreme

Court held the Sixth Amendment's Confrontation Clause barred the

use of a witness' prior statement when the witness refused to

answer questions on cross-examination. That is precisely what

happened in the Petitioner's case with Garcia's feigned memory

loss. The feigned memory loss, for all practical purposes, was

the equivalent of an outright refusal to answer questions on

cross-examination.

The inability of the Petitioner to force Garcia to "defend

or explain" his grand jury testimony as required by Crawford

resulted in a complete denial to the Petitioner of an effective

opportunity for cross-examination. This Court cannot conclude

that the Petitioner had "a full and fair opportunity to probe and

expose [the] infirmities" of Garcia's out-of-court testimony

through "meaningful" and "effective" cross-examination. United

States v. Owens, 484 U.S. 554, 559, 562 (1988); Delaware v.

Fensterer, 474 U.S. 15, 22 (1985).* That was simply never going

to happen with this witness in this case.

Since Garcia was the critical link in the Commonwealth's

purported identification of the Petitioner as the shooter, this

constitutional error was anything but harmless. The Defendant's

rights to confront and cross-examine Garcia under the Sixth

Amendment and Fourteenth Amendment to the federal Constitution

were violated and the prejudice was overwhelming.

°° Three federal Circuit Courts of Appeal have found Sixth

Amendment violations under similar factual circumstances. See

Preston v. Superintendent Graterford SCI, 902 F.3d 365, 380 (3d

Cir. 2018) (finding no full and fair opportunity through

meaningful and effective cross-examination to probe and expose

infirmities of witness' prior testimonial out-of-court statement

where witness refused to answer any substantive questions and

responded to nearly every question with "no comment"); United

States v. Torrez-Ortega, 184 F.3d 1128, 1132-1134 (10th Cir.

1999) (witness not subject to cross-examination where admission of

grand jury testimony violated Confrontation Clause when witness

asserted illegitimate claim of privilege against selfincrimination and refused to answer questions except for

elliptical and confusing answers when not asserting privilege) ;

United States v. Fiore, 443 F.2d 112, 114-115(2d Cir. 1971)

(Friendly, J.) (admission of grand jury testimony read to jury

violated Confrontation Clause; witness responded to prosecutor's

reading of grand jury questions with "I might have," "I don’t

recall", "I don't know whether I did or not", or "I refuse to

answer" when asked whether witness had given certain testimony to

grand jury).

III. This case is an excellent vehicle for addressing the

question presented.

This case presents a straightforward question of

constitutional law: whether the Confrontation Clause permits the

prosecution to introduce out-of-court testimonial statements from

a witness who is feigning memory loss and who then refuses to

defend or explain his out-of-court testimonial statements on

cross-examination by the defense. The Massachusetts Appeals

Court, quoting prior Massachusetts caselaw, indicated, "any

limitation on the effectiveness of a cross-examination of a

witness who has been found to have feigned memory loss generally

does not implicate the confrontation clause" and the Petitioner

had the opportunity to effectively cross-examine the witness.

This case presents an excellent vehicle for addressing the

question presented because Crawford and the record simply do not

Support the state court's decision. The Massachusetts Appeals

Court 1S incorrect on the law. Any limitation on the

effectiveness of cross-examination of a witness who has been

Found to have feigned memory loss does implicate the

Confrontation Clause and the Petitioner had no opportunity to

effectively cross-examine Garcia, the most important witness in

the case. Because Garcia would not "defend or explain" his outof-court statement, it is, for the purposes of the Confrontation

Clause, as if this witness did not appear at all. Crawford v.

Washington, 541 U.S. 36, 59 n.9 (2004).

Conclusion

The petition for writ of certiorari should be granted.

Respectfully submitted,

/s/ Stephen Paul Maidman

STEPHEN PAUL MAIDMAN, ESQUIRE

Counsel of Record

1145 Main Street, Suite 417

Springfield, Massachusetts 01103-2123

(413) 731-7300 (Voice & Fax)

maidman@att.net

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.