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SJC-12469

               COMMONWEALTH   vs.    RAFAEL FONTANEZ.



        Suffolk.      December 4, 2018. - April 16, 2019.

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


Evidence, Testimony at prior proceeding, Previous testimony of
     unavailable witness, Identification. Identification.
     Practice, Criminal, Appeal by Commonwealth, Interlocutory
     appeal, Confrontation of witnesses, Waiver. Constitutional
     Law, Identification, Confrontation of witnesses, Waiver of
     constitutional rights. Supreme Judicial Court,
     Superintendence of inferior courts.



     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.


    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
                                                                      2


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.
                                                                    3


     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


     1 We have considered a preliminary procedural question not
addressed by the parties: whether, instead of petitioning
pursuant to G. L. c. 211, § 3, the Commonwealth should have
sought leave to appeal from the single justice pursuant to Mass.
R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017).
Although the underlying matter arose on cross motions in limine
and not on a motion to suppress, the defendant's motion and the
judge's ruling on it had some of the same characteristics as a
suppression motion and ruling. See Commonwealth v. Grady, 474
Mass. 715, 718 (2016); Commonwealth v. Gonsalves, 445 Mass. 1,
15-16 (2005), cert. denied, 548 U.S. 926 (2006). See also
Commonwealth v. Arrington, 455 Mass. 437, 437-438 (2009), in
which we considered a nearly identical motion pursuant to Mass.
R. Crim. P. 15 (a) (2).

     Both sides proceeded in the county court and in the full
court as if Mass. R. Crim. P. 15 did not apply. The single
                                                                    4


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 petition's merits.    First,

the single justice must decide, in his or her discretion,

whether to review "the substantive merits of the . . .



justice also considered the underlying ruling to be a ruling in
limine and not a suppression ruling. We shall do the same.
                                                                      5


petition."   Commonwealth v. Baldwin, 476 Mass. 1041, 1042 n.2

(2017).   The single justice does not determine in this initial

step whether the challenged ruling was erroneous, although a

cursory look at the merits might help the single justice decide

whether the petition is suitable for review.     Rather, the focus

of step one is on answering a threshold question:     whether to

employ the court's power of general superintendence to become

involved in the matter.     "This discretionary power of review has

been recognized as 'extraordinary,' and will be exercised only

in 'the most exceptional circumstances.'"     Planned Parenthood

League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706

(1990), quoting Costarelli v. Commonwealth, 374 Mass. 677, 679

(1978).   The single justice is not required to become involved

if the petitioner has an adequate alternative remedy or if the

single justice determines, in his or her discretion, that the

subject of the petition is not sufficiently important and

extraordinary as to require general superintendence

intervention.   "No party, including the Commonwealth, should

expect this court to exercise its extraordinary power of general

superintendence lightly."     Commonwealth v. Richardson, 454 Mass.

1005, 1006 (2009), S.C., 469 Mass. 248 (2014).

    In criminal cases, defendants' petitions under G. L.

c. 211, § 3, are often denied on the ground that the defendant

has an adequate alternative remedy, namely, a direct appeal as
                                                                   6


of right after trial in the event he or she is convicted.

Petitions brought by the Commonwealth present a different

situation because, in most circumstances where it receives an

adverse ruling in the trial court, the Commonwealth has no other

avenue to obtain appellate review either through interlocutory

avenues or after trial.   Even if the Commonwealth has no other

remedy, however, it is not automatically entitled to review as

of right under G. L. c. 211, § 3.    See Commonwealth v. D.M., 480

Mass. 1004, 1004 n.2 (2018); Commonwealth v. Yelle, 390 Mass.

678, 685-687 (1984); Commonwealth v. Cook, 380 Mass. 314, 319

(1980) ("that the Commonwealth has no other remedy does not make

c. 211, § 3, review automatic").    To obtain review the

Commonwealth must still demonstrate to the single justice that

its petition presents the type of exceptional matter that

requires the court's extraordinary intervention.2   Exceptional


     2 It is for these reasons, when the Commonwealth appeals
from single justice denials of its petitions under G. L. c. 211,
§ 3, that we routinely remind the Commonwealth in our orders
allowing its appeals to proceed pursuant to S.J.C. Rule 2:21, as
amended, 434 Mass. 1301 (2001), that it must do more than
demonstrate to the full court that it had no adequate
alternative remedy. Our order in this case is illustrative. We
stated:

     "The Commonwealth should be mindful . . . as it pursues
     this appeal, that the fact that it has no other remedy does
     not automatically entitle it to consideration of the
     substantive merits of its claim. See Commonwealth v.
     Richardson, 454 Mass. 1005, 1005-1006 (2009)[, S.C., 469
     Mass. 248 (2014)]; Commonwealth v. Cook, 380 Mass. 314, 319
                                                                   7


circumstances might exist if, for example, the Commonwealth's

petition involves a novel question of law, a systemic issue that

will have an effect not just on the current case but on numerous

other cases, or a lower court ruling that, if allowed to stand,

would have a truly crippling effect on the Commonwealth's case.

On the other hand, we routinely uphold single justice denials of

the Commonwealth's petitions where there are no novel, systemic,

or case-determinative issues, or other aspects that make the

petitions exceptional.   See, e.g., Commonwealth v. Hernandez,

471 Mass. 1005, 1006-1007 (2015); Commonwealth v. Samuels, 456

Mass. 1025, 1027 n.1 (2010); Commonwealth v. Snow, 456 Mass.

1019, 1019-1020 (2010); Richardson, 454 Mass. at 1005-1006.




    (1980). It will first be incumbent on the Commonwealth to
    demonstrate that this is the type of 'rare case' and
    'exceptional circumstance' that requires the exercise of
    the court's extraordinary power of general superintendence;
    more specifically, that the single justice abused his
    discretion in declining to employ the court's extraordinary
    superintendence power in these circumstances. See
    Commonwealth v. Barros, 460 Mass. 1015, 1016 (2011);
    Commonwealth v. Richardson, supra. This being an appeal
    from the single justice's decision, and not a de novo
    review of the petition or second bite at the apple, it will
    not be enough for the Commonwealth simply to repeat the
    same arguments to this court that it pressed unsuccessfully
    before the single justice. Commonwealth v. Samuels, 456
    Mass. 1025, 1027 n. 1 (2010). See Commonwealth v. Barros,
    supra at 1017. The full court will reach the substantive
    merits only if it first determines that the case presents
    the type of extraordinary situation requiring consideration
    of the merits under G. L. c. 211, § 3, and that the single
    justice abused his discretion in ruling otherwise."
                                                                    8


    Here, both sides agree that the Commonwealth had no

alternative avenue to obtain review of the judge's allowance of

the defendant's motion in limine.   We turn, therefore, to

whether the Commonwealth's claim is "exceptional" for purposes

of G. L. c. 211, § 3.   We conclude that the single justice

abused his discretion in determining that there were no

exceptional circumstances here.

    The Superior Court judge's decision appears at first to be

"a routine ruling on a relatively routine evidentiary matter."

Hernandez, 471 Mass. at 1007, and cases cited.   Whether to admit

prior recorded testimony is, after all, a question regularly

considered by trial judges.   See id.   It is well within a single

justice's discretion to decline to review a routine evidentiary

ruling, regardless of whether the decision was erroneous.     Id.

at 1006-1007.

    However, on closer inspection the petition is more than

just routine:   the judge's decision to exclude the now deceased

victim's testimony effectively forecloses the Commonwealth's

ability to prosecute a serious crime.   This is not a situation

where the excluded evidence will merely weaken the prosecution.

The victim's prior testimony is key evidence that is critical to

the Commonwealth's ultimate success or failure in prosecuting

the case.   "The Commonwealth, not unreasonably, does not want to

proceed to trial without it . . . ."    Commonwealth v. Tahlil,
                                                                   9


479 Mass. 1012, 1014 (2018).   Cf. Commonwealth v. Williams, 431

Mass. 71, 76 (2000) (single justice "rarely" denies

Commonwealth's application pursuant to Mass. R. Crim. P.

15 [a] [2], where "Commonwealth's case depends on the evidence

that has been suppressed").

    At the suppression hearing, the victim described his

earlier identification of the assailant and identified a

photograph of the assailant.   If this testimony is admitted at

trial, then police officers involved in administering the

photographic array may testify that the victim identified the

defendant.   See Mass. G. Evid. § 801(d)(1)(C) (2019) (prior

identification not hearsay where "declarant testifies and is

subject to cross-examination about" identification).    See also

Commonwealth v. Clemente, 452 Mass. 295, 313 (2008), cert.

denied, 555 U.S. 1181 (2009) ("Prior recorded testimony is . . .

roughly equivalent to the type of testimony a jury would have

heard at trial were the witness available . . . .     The party

against whom the testimony is offered will have had a reasonable

opportunity and similar motive to develop the testimony

adequately, either by direct, cross-, or redirect examination").

But if this testimony is not admitted at trial, then no evidence

of the now deceased victim's identification will be admissible.

See Commonwealth v. Housewright, 470 Mass. 665, 676 (2015),

quoting Commonwealth v. Barbosa, 463 Mass. 116, 130 (2012) ("Had
                                                                  10


[witness's] prior recorded [identification] testimony been

excluded, the jury would also not have heard [police officer's]

testimony regarding [witness's] identification of the defendant

at the identification procedure, because a witness's pretrial

identification is admissible for substantive purposes only where

'the identifying witness testifies at trial and is subject to

cross-examination'").

    Admittedly, there is some other evidence on which the

prosecution could conceivably rely.   Surveillance video footage

captured the incident, and there were two other witnesses to the

stabbing.   However, witnesses at the hearing described the video

recording as being of poor quality.   And it is highly unlikely

that either of the other witnesses to the incident would be

permitted to identify the defendant at trial.   One of them never

identified the defendant to the police, but rather described the

assailant as male and gave a clothing description.   See

Commonwealth v. Crayton, 470 Mass. 228, 241 (2014) ("Where an

eyewitness has not participated before trial in an

identification procedure, we shall . . . admit it in evidence

only where there is 'good reason'" to do so).   The other witness

did identify the defendant, but his out-of-court identification

was suppressed.   See Commonwealth v. Johnson, 473 Mass. 594, 602

(2016) ("Where a witness's out-of-court identification is

excluded," in-court identification allowed only if "Commonwealth
                                                                    11


proves by clear and convincing evidence that the subsequent

identification . . . rests on a source independent of the

unnecessarily suggestive confrontation").3    The prior testimony

is important enough, and the other identification evidence

appears weak enough, that excluding the prior testimony would

cripple the Commonwealth's case.

     We observe also that this case implicates fundamental

constitutional rights, involves important competing legal

principles, and arises from an unusual fact pattern.    We do not

suggest that every confrontation issue is suitable for review

pursuant to G. L. c. 211, § 3.     Here, however, the judge

analyzed the interaction in these unusual circumstances between

the confrontation right and waiver doctrine, as well as whether

conflicting constitutional protections were implicated.       The

importance of these fundamental constitutional concerns weighs

in favor of reviewing the petition's merits.    Cf. D.M., 480

Mass. at 1006 (single justice should have reviewed merits of

petition where "important . . . public policies [were] at

issue").




     3 Based on the motion decisions and hearing transcript, the
only other evidence is an anonymous tip to police that the
defendant stabbed the victim and identifications placing the
defendant at the bar on the night of the incident. We do not
comment on the admissibility of this evidence.
                                                                      12


    Because the Commonwealth does not have an alternative

remedy, and because the Commonwealth's petition presents an

exceptionally important matter, the single justice abused his

discretion in determining that the Commonwealth's petition did

not require the court's consideration of the merits.

    2.   Step 2:   Reviewing petition's merits.     When review of a

petition is appropriate, the single justice moves to the second

step and reviews the petition's merits.      The single justice

"must then correct" the challenged trial court ruling if it was

wrong.   D.M., 480 Mass. at 1004 n.2.     Here, the Commonwealth

claims in its petition that the judge erred in excluding the

victim's prior recorded testimony.      We agree.

    Prior recorded testimony is admissible as an exception to

the rule against hearsay where the declarant is unavailable at

trial as a matter of law, and where "the prior testimony was

given by a person . . . in a proceeding addressed to

substantially the same issues as in the current proceeding, with

reasonable opportunity and similar motivation on the prior

occasion for cross-examination of the declarant by the party

against whom the testimony is being offered."       Commonwealth v.

Fisher, 433 Mass. 340, 355 (2001), quoting Commonwealth v.

Trigones, 397 Mass. 633, 638 (1986).     See Mass. G. Evid.

§§ 804(a), (b)(1) (2019).
                                                                   13


     Similarly, under the Sixth Amendment to the United States

Constitution and art. 12, "[a]dmitting prior testimony does not

violate the defendant's confrontation rights when the declarant

is unavailable, as a matter of law, to testify and 'the

defendant has had an adequate prior opportunity to cross-examine

the declarant.'"     Commonwealth v. Caruso, 476 Mass. 275, 293

(2017), quoting Commonwealth v. Hurley, 455 Mass. 53, 60 (2009).

The initial inquiry is whether the declarant is unavailable as a

matter of law.     See Mass. G. Evid. § 804(a).   A judge should

then consider five factors in determining "whether the defendant

had a sufficient opportunity to cross-examine the declarant at

the prior proceeding:    (1) the declarant was under oath, (2) the

defendant was represented by counsel, (3) the proceeding took

place before a record-keeping tribunal, (4) the prior proceeding

addressed substantially the same issues as the current

proceeding, and (5) the defendant had reasonable opportunity and

similar motivation on the prior occasion for cross-examination

of the declarant" (footnote omitted).4    Caruso, supra.


     4 The defendant asks us to require also that the prior
testimony be from a hearing at which the Commonwealth bore and
satisfied a burden of proof. We have stated that, for prior
recorded testimony to be admissible, the trier of fact must have
"a satisfactory basis for evaluating the truth of the prior
statement." Commonwealth v. Hurley, 455 Mass. 53, 62-63 (2009),
quoting Commonwealth v. Roberio, 440 Mass. 245, 251 (2003),
overruled on other grounds by Commonwealth v. Sena, 441 Mass.
822 (2004). According to the defendant, the fact finder cannot
                                                                 14


     Applying this constitutional rubric, the judge concluded

that the victim was unavailable and that the defendant had had

an adequate opportunity to cross-examine the victim at the

earlier suppression hearing.5   We agree.



evaluate the truth of the prior statement unless a burden was
satisfied at the prior hearing. But whether an earlier fact
finder credited the testimony has no bearing on the current fact
finder's own credibility determination. Accordingly, we have
allowed the admission of prior recorded testimony against a
defendant at trial where the Commonwealth did not satisfy a
burden of proof at the earlier proceeding. See Commonwealth v.
Trigones, 397 Mass. 633, 635-636, 640 (1986) (testimony from
hearing on defendant's denied motion to suppress admissible when
offered by Commonwealth). And under Mass. G. Evid. § 804(b)(1)
(2019), the hearsay exception for prior recorded testimony
includes testimony given "at a . . . lawful deposition." See
Hasouris v. Sorour, 92 Mass. App. Ct. 607, 607-608 (2018). The
proponent of former testimony taken at a deposition cannot have
satisfied a burden of proof at the prior proceeding.

     The defendant also argues that we should require "a direct
accusation against the defendant" at the prior proceeding that
"matches the risk to follow at trial." Otherwise, a defendant
might avoid at the earlier hearing issues relevant to trial, not
realizing that the hearing testimony will later be admitted.
Our inquiry into whether "the defendant had reasonable
opportunity and similar motivation on the prior occasion for
cross-examination of the declarant" addresses this concern.
Commonwealth v. Caruso, 476 Mass. 275, 293-294 (2017).

     5 The judge also concluded that the victim's prior testimony
was not unreliable. However, if prior testimony meets the
above-mentioned requirements for unavailability, see Mass. G.
Evid. § 804(a) (2019); the prior recorded testimony exception to
the rule against hearsay, see Mass. G. Evid. § 804(b)(1); and
the confrontation clause, then it is for the jury, not the
judge, to decide whether the out-of-court declarant's testimony
is reliable. The judge's approach is understandable considering
our decision in Arrington, 455 Mass. at 442, in which "we
focus[ed] on the reliability of [a declarant's] testimony" from
a prior hearing when deciding whether the prior testimony
                                                                 15


    The victim was unavailable to testify at trial because he

was deceased.   See Commonwealth v. Rosado, 480 Mass. 540, 549

n.8 (2018), citing Mass. G. Evid. § 804(a)(4).   At the

suppression hearing, the victim was under oath, the defendant

was represented by counsel, and the hearing was before a record-

keeping tribunal.   Although the issue at the suppression hearing

and the defendant's motive for examining the victim at that

hearing were not precisely the same as they would be at trial,

the issue was "substantially the same" and the motive was

"similar."   Caruso, 476 Mass. at 293.

    We agree with the judge that "the issue was [the victim]'s

identification of [the defendant], regardless of whether it

consisted of attacking the procedure the police utilized or

attacking [the victim]'s credibility, which, in fact, defense



"qualifie[d] as an exception to the hearsay rule." We observed
that, due to the declarant's "fragile" health "and the effects
of her medication," the judge in the prior hearing "did not deem
[her] testimony reliable." Id. at 443. However, we also
concluded that "defense counsel did not have a reasonable
opportunity at the [prior] hearing to cross-examine" the
declarant. Id. at 445. We based our decision to exclude the
prior recorded testimony on this lack of a reasonable
opportunity to cross-examine, not on the prior testimony's
unreliability. Id. at 446 (prior recorded testimony not
admissible as exception to hearsay rule because "although the
defendant had a similar motivation for cross-examining [the
declarant] at the [prior] hearing, he lacked a reasonable
opportunity to conduct that cross-examination"). We disavow
Arrington to the extent it suggests reliability is a separate
factor when analyzing the hearsay exception for prior recorded
testimony.
                                                                  16


counsel attempted to do."   Cf. Hurley, 455 Mass. at 63 n.9

("there may be circumstances in which a defense counsel's motive

to cross-examine a declarant at a pretrial detention hearing may

differ from her motive to cross-examine at trial, such as where

the defense counsel did not challenge the declarant's accuracy

or credibility at cross-examination in the prior hearing").6

     Although the defendant technically examined the victim on

direct rather than on cross-examination at the suppression

hearing, the purpose of calling the victim as a witness was to

discredit his out-of-court identification.   See Commonwealth v.

Bresilla, 470 Mass. 422, 433 (2015), quoting Commonwealth v.

Echavarria, 428 Mass. 593, 596 (1998) (to succeed on motion to

suppress out-of-court identification, defendant must prove "the

identification procedures were so unnecessarily suggestive and

conducive to irreparable mistaken identification as to deny the

defendant due process of law" [quotations omitted]).

Accordingly, defense counsel asked the victim leading questions,

emphasized the victim's intoxication on the night of the

stabbing, suggested the victim had only seconds to view the


     6 We do not mean to suggest that there must be cross-
examination at the prior proceeding for the prior recorded
testimony exception to apply. "Actual cross-examination at the
prior [proceeding] is not required, but the party against whom
the testimony is now offered must have had an adequate
opportunity to exercise the right to cross-examine if desired."
Commonwealth v. Canon, 373 Mass. 494, 500 (1977), cert. denied,
435 U.S. 933 (1978).
                                                                    17


defendant in the bar, used the victim's past drug addiction to

refute the victim's testimony that he was clear-headed when he

identified the defendant in a photographic array, and impeached

the defendant with prior inconsistent statements.    This

questioning "partook of cross-examination as a matter of form"

(emphasis omitted).   Ohio v. Roberts, 448 U.S. 56, 70 (1980),

overruled on other grounds by Crawford v. Washington, 541 U.S.

36 (2004).   See Commonwealth v. Wholaver, 605 Pa. 325, 358,

cert. denied, 562 U.S. 933 (2010) ("rationale [in Roberts] that

the preliminary hearing questioning served the function of

cross-examination remains persuasive for purposes of evaluating

whether Crawford's cross-examination requirement has been met").

See also Mass. G. Evid. § 804(b)(1) (prior recorded testimony

not excluded by rule against hearsay where, inter alia, it is

"offered against a party who had . . . an opportunity and

similar motive to develop it by direct, cross-, or redirect

examination" [emphasis added]).

    The judge's conclusions should have led him to decide that

the transcript was admissible because it satisfied the hearsay

exception for prior recorded testimony and the constitutional

restraints on that exception.     However, the judge excluded the

victim's prior testimony because the defendant and the victim

"did not meet face to face in the prior proceeding."    Article 12

provides defendants with the right to confront face to face at
                                                                  18


trial the witnesses against them.   Commonwealth v. Amirault, 424

Mass. 618, 632 (1997), S.C., 430 Mass. 169 (1999).    We do not

address whether there is a right to face-to-face confrontation

at a motion to suppress, see SCVNGR, Inc. v. Punchh, Inc., 478

Mass. 324, 330 (2017) ("courts should, where possible, avoid

unnecessary constitutional decisions"), because the defendant

waived any such right by asking to avoid a face-to-face

confrontation.   See Amirault, supra at 651 n.23 ("right to face-

to-face confrontation is not unwaivable").

    In an affidavit supporting his motion to remain out of

view, the defendant expressly waived his right to be present at

the suppression hearing.   See Mass. R. Crim. P. 18 (a), 378

Mass. 887 (1979) (criminal defendant has right to be present "at

all critical stages of the proceedings").    See also Robinson v.

Commonwealth, 445 Mass. 280, 286 (2005) ("defendant may waive

the right to be present at critical stages of the proceedings").

In doing so, he chose to avoid confronting face to face the

witnesses who testified against him at the hearing.    See

Amirault, 424 Mass. at 651 n.23.    Cf. Commonwealth v. Spear, 43

Mass. App. Ct. 583, 589 n.8 (1997), citing Amirault, supra at

623, 626, 645-646 ("confrontation issue [was] waived [in

Amirault] where . . . defense counsel participated in designing

special seating configuration and specifically declined to

challenge the arrangement on confrontation clause grounds").
                                                                  19


The judge erred in precluding the prior testimony despite this

waiver.

    We disagree with the judge's conclusion that the defendant

"cannot be deemed to have freely waived one constitutional right

because he properly chose . . . to exercise another" by sitting

out of view.   Even if we were to decide that there is a right to

sit out of view at a hearing on a motion to suppress, which we

decline to do here, exercising that right would not prevent the

defendant from waiving his right to face-to-face confrontation.

"[T]he right to confront witnesses is not absolute."     Amirault,

424 Mass. at 633, quoting Commonwealth v. Bergstrom, 402 Mass.

534, 546 (1988).   It "may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal trial

process."   Commonwealth v. Farley, 443 Mass. 740, 748, cert.

denied, 546 U.S. 1035 (2005), quoting Commonwealth v. Francis,

375 Mass. 211, 214, cert. denied, 439 U.S. 872 (1978).     The

defendant's interest in remaining out of view during the hearing

on his motion to suppress his identification superseded any

right he might have had to face-to-face confrontation.

    The defendant suggests that he needed to sit out of view to

challenge the constitutionality of various out-of-court

identifications.   He analogizes, as did the judge, to cases in

which a defendant waived the right under the Fifth Amendment to

the United States Constitution against compelled self-
                                                                    20


incrimination in order to assert the right to be free from

unreasonable searches and seizures under the Fourth Amendment to

the United States Constitution.   See Simmons v. United States,

390 U.S. 377, 389-394 (1968); Commonwealth v. Amendola, 406

Mass. 592, 596-600 (1990).   But those cases addressed situations

in which a defendant had to give up one constitutional right to

assert another.   See Simmons, supra at 381 (to establish

standing for motion to suppress evidence, defendant testified

that suitcase with incriminating items belonged to him);

Amendola, supra at 600 (discussing "self-incrimination

dilemma").   Here, the defendant could have challenged the out-

of-court identifications without giving up any right he might

have had to face-to-face confrontation.   The decision to sit out

of view was merely tactical.

    Finally, to the extent the judge was influenced by the

defendant having chosen to remain out of view "on his counsel's

advice," we observe that the "right to face-to-face

confrontation" is not on the "very short list of rights . . .

that must be waived personally by a defendant and cannot be

waived by his counsel."   Amirault, 424 Mass. at 651 n.23.    See

Commonwealth v. Myers, 82 Mass. App. Ct. 172, 182-183 (2012).

Cf. Commonwealth v. Morganti, 467 Mass. 96, 102, cert. denied,

135 S. Ct. 356 (2014) ("trial counsel may waive the right [to an
                                                                  21


open court room] on his own as a tactical decision without

informing his client").7

     Conclusion.   For the foregoing reasons, the judgment of the

single justice is set aside, and the case is remanded to the

county court for entry of a judgment vacating the order allowing

the defendant's motion in limine to exclude the victim's prior

recorded testimony.

                                   So ordered.




     7 The defendant asserts that a waiver of the right to
confrontation should always require a knowing and voluntary act
by the defendant. We decline to adopt such a rule.
