• Miranda; Forfeiture of the Issue
   
• Wearing of Facemasks by Witnesses and the Sixth Amendment Right to Confrontation

Defense counsel’s failure to object to the admissibility of a non-Mirandized statement forfeits the issue on appeal.  The wearing of facemasks by witnesses during trial is not a Sixth Amendment right to confrontation violation when necessitated by an on-going pandemic.

On January 22, 2020, defendant Carlos Hector Alvarez—not the most clever burglar in history—was observed via Elen and Stephan Arabian’s home security cameras climbing over a fence into the victims’ backyard.  The Arabians continued to watch defendant as he tried to open the door to a converted (furnished) attached garage which Stephan used as his “cigar room.”  Los Angeles Sheriff’s deputies Luis Capilla and Vincent Soto, responding to the Arabian’s 911 call, were led through the house by the Arabians into the garage.  As they unlocked and opened the door from the garage to the outside, the door suddenly “flung open” and an undoubtedly surprised defendant stepped inside.  He was immediately taken into custody.  The doorknob to the garage was later found to have been damaged by defendant’s efforts to break in.  It was also observed at the time that defendant was wearing socks on his hands in an apparent attempt to avoid leaving fingerprints.  As the handcuffed defendant was led to the patrol car, a large plastic trash bag was observed near the side gate.  Deputy Soto asked defendant whether the bag was his, to which he replied; “Yeah.” No Miranda warnings were administered.  Charged in state court, a jury later convicted defendant of first degree residential burglary (Pen. Code § 459) with a person other than an accomplice present (Pen. Code § 667.5(c)(21) [which we used to label as a “hot prowl burglary;” i.e., a residential burglary when the victims are at home,]). Defendant was sentenced to the middle term of four years in state prison. He appealed.

The Second District Court of Appeal (Div. 7) affirmed.  Defendant raised two issues on appeal; (1) the admission into evidence of his “Yeah” response when asked if the trash bag was his, and (2) the mandated wearing of facemasks in court as a violation of his Sixth Amendment right to confrontation. 

(1) Miranda:  As noted above, when the arrested and handcuffed defendant was being led to the patrol car, a plastic trash bag was observed near a side gate.  Asked if the bag was his, defendant’s response (“Yeah”) was important evidence on the issue of his intent (an element of the burglary) in that it was arguable that he had brought the bag with him for the purpose of hauling away the hoped-for loot.  Defendant had not yet been advised of his Miranda rights when he made this admission.  Defense counsel failed to bring a pre-trial in limine motion challenging the admissibility of defendant’s affirmative response when asked if the bag was his.  Instead, he waited until mid-trial to object when the first deputy to testify was asked if defendant had been asked about the bag.  The trial court overruled defense counsel’s objection to the prosecutor’s question.  But then when the deputy was asked for defendant’s response, counsel failed to object.  Counsel also failed to object when the second deputy was asked the same questions.  In closing arguments, the prosecutor cited defendant’s affirmative response about the bag, it being relevant to his intent to steal, again without objection.  On appeal, defendant argued that his Miranda rights had been violated by allowing into evidence his un-Mirandized admission to the ownership of the plastic bag.   The Appellate Court declined to rule on this issue, however, noting that by failing to register a timely objection, he had forfeited the issue.  (See, however, “Note” below.)  

(2)  Sixth Amendment Confrontation and the Wearing of Facemasks:  Defendant’s trial occurred during the COVID-19 pandemic.  Because of this, everyone in the courtroom, including the witnesses, were required to wear facemasks.  When the issued was discussed pre-trial, the trial court judge ruled that at most, witnesses would be allowed to remove their masks “momentarily,” “so they can be seen.”  But otherwise, facemasks would be required.  Noting that the masks used would cover from the tip of the witness’ nose to the mouth, it was conceded that the jurors would still be able to see their eyes and “a lot of expression in that part of their face.”  On appeal, defendant argued that the wearing of facemasks by the witnesses deprived him of his Sixth Amendment confrontation rights.  Specifically, he complained that the jury would be unable to properly evaluate a witness’ demeanor while testifying; an important element in evaluating that witness’ credibility.  The Court disagreed.  The principles at play are well established.  “The confrontation clause of the Sixth Amendment, applicable to the states through the 14th Amendment, provides, ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .’  This right ‘provides two types of protections for a criminal defendant: [T]he right physically to face those who testify against him, and the right to conduct cross-examination.’”  (Coy v. Iowa (1988) 487 U.S. 1012, 1017.)  The Court noted, however, that while the Sixth Amendment right to confront one’s accusers is certainly important, it is not absolute. “Rather, ‘the Confrontation Clause reflects a preference for face-to-face confrontation at trial,’ [citation], a preference that ‘must occasionally give way to considerations of public policy and the necessities of a case.’”  (Italics in original: Maryland v. Craig (1990) 497 U.S. 836, 849.)  A pandemic is just such an exception.  As such, the Court found that wearing facemasks (along with social distancing) in a courtroom serves an “important state interest in protecting the public from a contagious, and too often, lethal, disease.”  The Court further noted that as long as certain “procedural safeguards” were respected, compromising to some degree one’s Sixth Amendment confrontation rights is acceptable.  Those procedural safeguards referred to by the Court are; (1) in-person testimony, (2) given under oath, (3) subjected to cross-examination, and (4) the ability of the defendant and fact finder to view witness demeanor for the purpose of evaluating credibility. (Craig, supra, at pp. 845–846.)  The Court found that despite the partial face coverings, all four safeguards were present in this case.  “Witnesses testified in the solemnity of the courtroom and in the presence of defendant, under oath, and subject to rigorous cross-examination.”  (The Court referred to the latter—cross-examination—as “the greatest legal engine ever invented for the discovery of truth.”)  Based upon the above, the Court found no error in requiring witnesses to wear facemasks while testifying against the defendant.

At footnote 7 of this decision, the Court cites a pile of out-of-state decisions that reached the same conclusion on the facemask issue.  And additionally, the day after this case was published, Division Eight of the Second District Court of Appeal issued a similar confrontation ruling in People v. Lopez (Feb. 15, 2022) __ Cal.App.5th __ [2022 Cal.App. LEXIS 122].  In Lopez, the Court further noted that with the pandemic raging on, it was a matter of either postponing the trial indefinitely, which compromised the defendant’s “speedy trial” rights (also a Sixth Amendment issue), or having the witnesses wear masks.  So the facemask vs. confrontation issue is pretty well settled.  As for the Court’s refusal to consider his Miranda argument on appeal, it is arguable that even if allowing into evidence defendant’s admission that he’d brought a plastic trash bag with him was error, it was likely “harmless,” given other unrebutted evidence of defendant’s intent to commit a burglary (i.e., wearing of socks over his hands, surveillance camera video of his suspicious activities in the victims’ backyard where he had no business being, and the damaged door knob).  But the Court also ducked what could have been an interesting discussion as to whether Miranda had in fact been violated.  On its face, all the elements of a Miranda requirement seem to be there; i.e., law enforcement asking an in-custody suspect a question that was likely to elicit an incriminating response.  (See Rhode Island v. Innis (1980) 446 U.S. 291, 300-302.)  But there’s also a viable argument, supported by some (reasonably) good authority, that the circumstances present here don’t really constitute the type of situation that Miranda was intended to address.  (E.g., see People v. Claxton (1982) 129 Cal.App.3rd 638: A general, rhetorical question, such as, “What did you get yourself into ” was held to not be the functional equivalent of an interrogation.  See also United States v. Yusuff (7th Cir. 1996) 96 F.3rd 982, at pg. 988: An officer’s question, “What’s this ”, in the course of a pat-down search; no interrogation.)  Miranda was intended to address the coerciveness of an interrogation of an in-custody suspect.  It’s certainly arguable that a simple, non-accusatory question related to his ownership of a plastic bag observed sitting on the ground was not the type of questioning that Miranda prohibits.  But because defendant’s attorney forfeited that issue by being a bit slow on the draw, we’ll never know how this Appellate Court might have ruled on this issue.