Spinks v. State ( 2021 )

Jerel Lewis Spinks v. State of Maryland, No. 1935, September Term 2019. Opinion by
Beachley, J.
CRIMINAL LAW—SIXTH AMENDMENT RIGHT OF CONFRONTATION—
VICTIM’S TESTIMONY BY SKYPE
Trial court did not violate Appellant’s Sixth Amendment right of confrontation by allowing
the robbery victim to testify via Skype. The Skype platform allowed Spinks to confront
the victim witness in real time, under oath, and via a two-way platform featuring clear
video and sound. Accordingly, the Skype platform preserved all of the important elements
of confrontation aside from face-to-face courtroom testimony. Additionally, the denial of
Spinks’s right to face-to-face confrontation was permissible because public policy supports
the use of such video technology to enable prosecution of violent crimes against a victim
whose citizenship and immigration status prevent him from testifying in person. Finally,
the trial court here made adequate, case-specific findings that the use of video technology
in this case was necessary because the victim witness reasonably left the United States in
response to his mother’s medical emergency, and he could not lawfully return to Maryland
to testify at trial.
Circuit Court for Montgomery County
Case No. 135441
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1935
September Term, 2019
______________________________________
JEREL LEWIS SPINKS
v.
STATE OF MARYLAND
______________________________________
Nazarian,
Beachley,
Ripken,
JJ.
______________________________________
Opinion by Beachley, J.
______________________________________
Filed: September 29, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-09-29 12:30-04:00
Suzanne C. Johnson, Clerk
On the night of February 18, 2019, in the parking lot of the Sligo House Apartments,
Oumar Sanoh was robbed at gunpoint. The State charged Jerel Lewis Spinks, appellant,
with assisting the gunman during that robbery. At trial, the contested issue was whether
Spinks did so, or instead, whether he was merely present while his companion
unexpectedly committed the robbery. After hearing Mr. Sanoh’s testimony via Skype,
viewing surveillance video showing Spinks and the gunman returning to the apartment
building with an item taken from the car, and considering Spinks’s statement to police, a
jury in the Circuit Court for Montgomery County convicted Spinks of armed robbery and
conspiracy to commit armed robbery. He was sentenced to twenty years for the robbery
and a consecutive ten years for the conspiracy conviction.
In this appeal, the sole question presented by Spinks is whether the trial court
violated his Sixth Amendment right to confront his accuser by allowing Sanoh to testify
via Skype.1 Based on our independent constitutional review of the record, we conclude
that the trial court did not err and therefore affirm Spinks’s convictions.
BACKGROUND
The Motion Record
Because the sole appellate issue is whether the trial court erred in permitting Mr.
Sanoh to testify via Skype, we shall provide a detailed summary of the motion record
pertinent to that question. At the outset of proceedings on the scheduled trial date, the
1
Skype is a videoconferencing program allowing for real-time audio and video
communication using an internet connection. About Skype, Skype, https://
www.skype.com/en/about (last visited Aug. 6, 2021).
prosecutor requested permission for Sanoh to testify remotely via Skype. She explained
that although Sanoh had been served with a subpoena and was scheduled to meet with her
before trial, he received a phone call that his mother had been hospitalized for a medical
emergency and flew home to Guinea the next day, on August 13, 2019. He could not return
to the United States because he did not have a visa. The prosecutor argued that Skype
testimony may be admitted over a Sixth Amendment objection, in accordance with
standards established by Maryland v. Craig, 497 U.S. 836 (1990), and White v. State, 223
Md. App. 353 (2015).
The trial judge ruled that he would conduct a preliminary hearing to determine
whether the necessary predicate for Skype testimony was satisfied. Mr. Sanoh testified via
Skype, outside the presence of the jury. Confirming the prosecutor’s proffer regarding his
mother’s medical emergency and his flight home, Sanoh testified that he is not a U.S.
citizen and that his visa expired in 2018. He explained that he would like to return to the
United States but could not do so without a new visa.
Defense counsel objected that the State could not “make a showing of necessity”
because Sanoh’s expired visa “means that really it was just a matter of time before he was
leaving anyway[.]” In counsel’s view, moreover, the fact that the prosecutor “had not
spoken with [Sanoh] despite various attempts” indicated “that he was not cooperative and
didn’t want to come in to testify.” Based on Sanoh’s inability to identify the family
member who called him, his lack of any documentation regarding his mother’s
hospitalization and his flight, and inconsistencies in his testimony, defense counsel argued
that Sanoh was not credible.
2
The trial court granted the State’s motion, explaining its factual findings and legal
conclusions in detail, as follows:
The [S]tate has requested leave to produce the testimony of a witness via
Skype. The defendant opposes that request. We have had an evidentiary
hearing, at which the [putative] witness has appeared via Skype, was asked
questions by the State, was asked questions by counsel for the defendant, was
asked questions by the court. I find that the witness appeared by Skype. He
appeared via a real time video conference program accessible via computer
over the internet. That was recognized by the Court of Appeals in . . . [Att’y
Grievance Comm’n of Md. v. Agbaje], 438 Md. 695. Understanding that was
a civil case, I find here it was a real time video conference at which the
witness could see everybody in the courtroom. Everybody in the courtroom,
including the defendant, could see the witness. I find the witness was alone
when he was testifying. I find the witness was first sworn, that the oath was
duly administered just as if the witness had been in the courtroom.
The only potential defect in the Skype program is a tiny delay about
sound, a couple of milliseconds. Vastly less than Neil Armstrong’s delay
from when he was communicating from where he was communicating from
to Houston. The screen was clear, not pixelated, and, quoting Judge
McCormick, “these were as good as wedding photographs.” So, with respect
to the quality of the technical piece, I am persuaded that reasonable
safeguards are in place to protect the integrity of testimony given through
Skype. . . . While I didn’t . . . measure that screen diagonally, . . . it’s at least
42 inches. I’m sure it’s bigger than that, because it looks bigger than my TV.
I could see it clearly. . . .
With respect to the other pieces, I find that the witness was duly
subpoenaed. I find that on the 12th of August of 2019, the witness received
a call from family members that his mother in the country of Guinea, . . . had
taken ill, was in the hospital in a coma. The fact that the witness didn’t
remember the exact name of the cousin who called him, to me, frankly, is not
of big moment. You get a call out of the blue, not expecting it, I find, which
is what happened here, that mom not only has taken ill, but is in the hospital
in a coma, that’s what you’re paying attention to. He was concerned his
mother was gravely ill. I find that, on the very next day, he flew back home.
That he booked a ticket, and while he didn’t fly non-stop, he left the United
States and flew back to the country of Guinea in West Africa. I find that his
U.S. Visa expired in 2018, and while it may very well be that his remaining
in the United States post the expiration of his Visa exposed him to federal
deportation or federal penalties, the long and the short of it is I couldn’t even
3
tell you the number of folks who are here under those circumstances, whether
it be through inadvertence or students who forgot or -- it doesn’t matter.
But what happened here, I find, is the gentleman, since he’s left the
United States, cannot lawfully re-enter. I find he does not have a valid Visa.
I find, based on the evidence presented, there is no . . . reasonable expectation
that he’ll even get one because he will have to reveal to the immigration
authorities that he probably knowingly overstayed his prior Visa and the
chances of him getting a new one are probably not high. So, his ability to
lawfully re-enter the United States, based on the information I have, is
nominal at best.
Second, I find that this is neither a sham nor a ruse. While he came
across as somewhat weary and concerned, he has made himself available to
the State court system via Skype when, frankly, we can’t make him do that.
Nobody is putting a gun to this guy’s head to make him communicate to
make him be available. I find that he’s trying to comply and to do the right
thing. He simply, I find, cannot lawfully re-enter the United States at any
time. So, even if, God willing, mom got better tomorrow and you put him
on an airplane, he can’t get lawfully through immigration.
There is, I find, an important public policy in this case. That is that
all persons who are in this country, regardless of why they’re here, regardless
of whether it is or isn’t lawful for them to be here, are entitled to the
protection of our criminal laws and are entitled, if they are the victim of a
crime, to be heard and to have a case decided by a jury. To me, that is an
overriding and important public policy. Just as important as solving cold
cases was in . . . White. All persons -- it would be, in my judgement, a sad
place for this country to be if we said, you know, there’s more than one class
of victim. There are certain victims who are going to be, let their cases go to
trial, but if you happen to be in this country illegally and you’re the victim of
a crime and you happen to step over the border, your case goes away because,
since you can’t lawfully come back, your alleged assailant goes free. I find
that to be appalling, were that the case, and I am not persuaded that that is
proper public policy. Of course, I don’t make policy, but in terms of the
public interest at stake, this case, in all the respects, I am persuaded fits quite
neatly within what Judge Leahy explicated [in White], and I’m not going to
go through all of their pieces and reasoning in White v. The State, but this is
as close as it gets to in person confrontation. This isn’t even remarkably
similar to Craig, where Justice O’Connor allowed the witness not to see the
defendant. Well, this witness sees the defendant. The defendant sees the
witness. Everybody sees everybody in real time, and I am . . . highly
confident we can arrange the TV screen, just like I did yesterday in a trial, so
4
the jury and everybody sees everybody. That is not a technical problem in
this day and age.
***
Simply, technology evolves, and sometimes, albeit slowly, the courts evolve
with it. There’s no question that a defendant’s right to confront an accuse[r]
is paramount, and it is also quite clear that the defendant’s right to confront
an accusatory witness may be satisfied absent a face to face in the courtroom.
Here we have face to face over, I find, a reliable technological medium, and
it would not deny his rights under the Sixth Amendment to the federal
constitution or the Maryland [constitution]. . . .
I’m also persuaded that the necessity here was not created by the State.
They didn’t cause the witness not to be here . . . . I actually am persuaded,
in the affirmative, that the witness’s family had a true medical emergency,
and the witness simply didn’t high tail it out of Maryland to avoid appearing
in the courtroom. If I thought he did, this might come out a different way.
Another factor that I consider is the nature of the testimony the witness is
going to give. This is not a case -- although I understand it’s perhaps only of
peripheral significance, it is simply part of the mix, not a case where this
particular witness is going to make an in court identification of the defendant
or a case where the State is going to use a prior identification of the defendant
by this witness to put in front of the jury. What this witness, I am told, is
going to basically say something that’s not really contested. That a crime
occurred and that he was a victim. The real question here is whether this
defendant had any role in the crime. That’s what’s contested. . . .
So, I am persuaded as to the reliability of the two way Skype
procedure. I find there are important public policies to vindicate, which I am
weighing and balancing harmoniously in consideration of the defendant’s
Sixth Amendment rights to confront his accusers through what I would call
a quasi-physical presence, because this is not like Craig, where it was absent,
and this is not a case like Yates where somebody simply said, “I don’t want
to go.” I find this witness, if the State had the ability to hand him lawful
entry into the United States, he’d take it in a minute. He can’t get it, and he
knows it. Those are my findings.
Following this ruling, defense counsel objected to the adequacy of the Skype
technology, arguing that the phone screen that Sanoh was watching was too small to afford
a “face to face confrontation” because he “can’t even make out the features of the person’s
5
face.” The court was not persuaded, noting, “I can’t tell you how many cases that I’ve had
where family members Skype each other using their iPhones. . . . I mean, it’s ubiquitous,
common.”
Mr. Sanoh testified via Skype as the State’s first witness. At the conclusion of his
testimony, defense counsel objected that his attempt to impeach Sanoh had been impaired
by “technical” difficulties with the State’s computer. The court disagreed, ruling that
impeachment had been effective, and then emphasized that “[w]hat’s important for the
Sixth Amendment is the defendant and the witness having that ability to look each other in
the eye, and here they did.”
Trial
We briefly summarize the trial record as background for our discussion of the issue
Spinks raises. During trial, the State presented evidence that while looking for
“afterparties” outside a Silver Spring bar that night, Oumar Sanoh encountered a stranger
who told him he knew of one. Sanoh, who had borrowed his brother’s vehicle that evening,
drove the person he later learned was Najie Walker to the Sligo House Apartments. While
Walker went into the building, ostensibly to ask if Sanoh could join the party, Sanoh
remained in the parked car. After waiting for a period of time, Sanoh called the number
Walker gave him but could not reach him.
Eventually, Walker returned to Sanoh’s car with another man, who was later
identified as Spinks. Walker got into the front passenger seat, pulled out a handgun, and
robbed Sanoh. According to Sanoh, Walker’s companion got into the back-passenger seat
and held him from behind while Walker was holding the gun to Sanoh’s neck. Among the
6
items taken from Sanoh was a distinctive white “Gucci bag” containing $1,640 in cash,
which Sanoh’s brother had collected to send to their family in Guinea.
Sanoh called 911 to report the robbery, remaining in the parking lot until police
arrived. He provided police with the phone number that Walker gave him, which later
corresponded to a phone in Walker’s possession.
Security camera footage showed Spinks and Walker returning to the apartment
building. Cell phone evidence established that Spinks’s phone made two calls to Walker’s
phone number on February 18 and that a number with a caller identification of “Najie”
called Spinks’s phone twice while police were interviewing Spinks on March 1, 2019.
When police questioned Spinks, he admitted being present when Walker
unexpectedly committed a robbery, but insisted that he was not aware of Walker’s plan,
that he never touched Sanoh, and that he did not participate in any way. Instead, Spinks
maintained that when he twice opened the car door to get out of the car, Walker told him
“not to get out because he had a gun.”
Spinks testified in his defense, explaining that he was living with his fiancée and
son in that apartment building. That evening, his fiancée wanted to smoke some marijuana.
When Spinks left the apartment to smoke a cigarette, he ran into Walker. Spinks asked if
Walker had any marijuana, and Walker replied that he should follow him if he wanted
some.
Spinks followed Walker out of the building, to a car. When Walker got into the
front passenger seat, Spinks got into the back passenger seat, thinking he was “getting a
bag of weed from the guy sitting in front.” But the “guy” asked Walker if he “still got that
7
40” and took two twenty dollar bills out of his pocket. Walker produced a bag of marijuana,
then said, “F that. Give it all up” and pulled out what appeared to be “a weapon.”
Walker took Sanoh’s keys and phone, handed them to Spinks, and searched the
vehicle. After Walker ran from the car back to the building, Spinks returned Sanoh’s keys
and phone, apologizing and saying he did not know that was going to happen.
DISCUSSION
Spinks contends that the trial court “erred in allowing Sanoh to testify via Skype
because the State failed to make an adequate showing of necessity and otherwise assure
the reliability of the testimony.” The State counters that “[t]he trial court here made
detailed findings—which are not clearly erroneous—concerning the facts of Sanoh’s
situation that made his remote testimony necessary, as well as the features of Skype, as
used at trial here, that gave his testimony assurances of reliability.” For reasons that follow,
we agree with the State that “[t]he trial court carefully considered” the applicable
constitutional standards, did not commit clear factual error, and did not violate Spinks’s
Sixth Amendment right to confront his accuser by allowing Sanoh to testify via Skype.
Sixth Amendment Standards Governing Skype Testimony
The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant
“the right . . . to be confronted with the witnesses against him.” U.S. Const., amend. VI;
see also Md. Decl. Rts., Art. 21. When determining whether a defendant’s right to
confrontation has been violated, this Court conducts its own independent constitutional
appraisal, “by reviewing the law and applying it to the peculiar facts of the particular case.”
Longus v. State, 416 Md. 433, 457 (2010) (quoting Jones v. State, 343 Md. 448, 457
8
(1996)). In doing so, we accept the trial court’s factual findings unless they are clearly
erroneous. Id.Essential elements of the right of confrontation include “physical presence, oath,
cross-examination, and observation of demeanor by the trier of fact,” because these enable
a criminal defendant to challenge “the reliability of the evidence against [him] by
subjecting it to rigorous testing in the context of an adversary proceeding before the trier
of fact.” Maryland v. Craig, 497 U.S. 836, 845–46 (1990). Yet the right to a witness’s
physical presence in the courtroom is neither absolute, nor “the sine qua non of the
confrontation right.” Id. at 847, 850. “Supreme Court precedent establishes that the
Confrontation Clause reflects a ‘preference’ for physical face-to-face confrontation.”
White, 223 Md. App. at 390 (citing Craig, 497 U.S. at 849). In some circumstances,
however, that preference may “give way to considerations of public policy and the
necessities of the case.” Id. at 849 (quoting Mattox v. United States, 156 U.S. 237, 243
(1895)). Consequently, “a defendant’s right to confront accusatory witnesses may be
satisfied absent a physical, face-to-face confrontation at trial only where denial of such
confrontation is necessary to further an important public policy and only where the
reliability of the testimony is otherwise assured.” Id. at 850.
For example, the seminal decision in Craig affirmed the constitutionality of this
State’s statute authorizing testimony by a child victim via one-way closed-circuit
television. Id. at 859–60; see also Md. Code (2001, 2018 Repl. Vol.), § 11-303 of the
Criminal Procedure Article (current statutory provision). The Supreme Court held that
such a procedure does not violate the Sixth Amendment right to confrontation when it is
9
necessary to further the State’s strong interest in protecting the child victim from the
emotional trauma of having to testify in the defendant’s presence, and when the procedure
used adequately preserves the other elements of confrontation that establish indicia of
reliability. Id. at 857. Before admitting such video testimony, however, a court must hear
evidence and make a case-specific finding that it “is necessary to further an important state
interest.” Id. at 852.
Since the Supreme Court approved one-way video testimony, during which the
defendant could not simultaneously see or hear the complaining victim, other courts have
considered the constitutionality of two-way video testimony such as Skype, during which
the witness testifies “in real time” from a remote location into the courtroom, allowing the
witness, defendant, and fact-finder to see and hear each other. Most courts have applied
the “Craig standard” to two-way video testimony. See, e.g., United States v. Carter, 907
F.3d 1199, 1206 (9th Cir. 2018); United States v. Yates, 438 F.3d 1307, 1313–17 (11th Cir.
2006); United States v. Bordeaux, 400 F.3d 548, 554–55 (8th Cir. 2005); Iowa v. Rogerson,
855 N.W.2d 495, 504–06 (Iowa 2014); Lipsitz v. Nevada, 442 P.3d 138, 137–38 (Nev.
2019); cf. Wrotten v. New York, 560 U.S. 959, 959 (2010) (Sotomayor, J., dissenting from
denial of certiorari) (recognizing that whether “a two-way video that enabled the testifying
witness to see and respond to those in the courtroom, and vice versa,” violated a
defendant’s confrontation right is an “important” question that was “not obviously
answered by Maryland v. Craig”). But see United States v. Gigante, 166 F.3d 75, 81 (2nd
Cir. 1999) (declining to require a finding of Craig-based necessity before allowing witness
to testify via two-way video platform).
10
Like most other jurisdictions that have addressed this issue, Maryland courts have
allowed two-way video testimony only when the Craig standard is satisfied. In White v.
State, 223 Md. App. 353 (2015), we affirmed decisions to allow a retired serologist who
had handled evidence in two different “cold cases” to give trial testimony, id. at 362–63,
via Skype in one case and via WebEx in another, id. at 401. The forensic witness’s
testimony provided an essential link in the chain of custody for DNA evidence that tied the
accused to both crimes. Id. at 386. When prosecutors learned, three days before the first
trial, that the witness could not travel from Arizona due to a back condition, they proposed
taking her testimony via Skype. Id. at 387–88.
After holding a test hearing to examine the witness, the trial court permitted the
forensic witness to testify at trial via Skype. Id. at 388. One month later, in the second
case, a different trial judge held a WebEx hearing, during which the witness testified that
her condition had not improved. Id. at 388–89. That court also found the witness “reliable”
and concluded that her remote video testimony was justified by “important public policy
considerations of justly resolving criminal cases while protecting the well being of the
witnesses and resolving cold cases based on advances in science and technology.” Id. at
389 (internal quotation marks omitted).
Although this Court recognized that “[t]he Maryland Rules do not address the use
of video conferencing in criminal trials[,]” we pointed out that other rules permit two-way
video testimony in different contexts, including an initial appearance in district court “so
long as the chief judge thereof has approved the use of video conferencing in that county[,]”
see Md. Rule 4-231(d); in habeas proceedings, see Md. Rule 15-309(b)(2); and in judicial
11
review of agency adjudications, see Md. Rule 7-208(c).2 White, 223 Md. App. at 390 n.32.
At issue in that criminal appeal, however, was whether the State’s presentation of Skype
testimony, over defense objection, violated the Confrontation Clause. Id. at 386.
Following Craig, we acknowledged that
[e]ven the most cutting-edge technology cannot wholly replace the weight of
in-court testimony, for the electronic delivery of that testimony—no matter
how clearly depicted and crisply heard—is isolated from the solemn
atmosphere of the courtroom and compromises human connection to
emotions like fear, apprehension, or confusion. Accordingly, we hold that
the Craig standard applies when the State seeks to present witness testimony
via two-way video conference against a defendant in a criminal proceeding.
And, the issues this Court must resolve pursuant to the standard set forth in
Craig are whether [the witness’s] testimony via a two-way medium was
reliable; whether the denial of Appellant’s right to confront her in person
furthered an important public policy; and whether the court made a sufficient
finding of necessity.
Id. at 392–93.
Applying that Sixth Amendment test and analytical framework, we concluded that
testimony given via both the Skype and WebEx platforms, “absent any technological
complications,” adequately “provided the traditional indicia of reliability,” by allowing the
witness to be sworn under oath, to be questioned in a manner that allowed the jury to
observe her demeanor, and to be cross-examined. Id. at 393. In evaluating whether such
video-conferencing was necessary to serve an important public policy, we emphasized that
“convenience and efficiency are not sufficiently important public policies to warrant
dispensing the right to physical face-to-face confrontation[,]” id. at 395, but distinguished
2
The provision in Rule 7-208(c) allowing for video conferencing was removed in
2018 and consolidated with other similar provisions into Rules 2-801 through 2-805.
12
cases when “the need to protect the well-being of a medically infirm witness” is at stake.
Id. at 396–98. “[E]mphatically caution[ing]” that there must be “necessity—not simply
convenience or expediency—in order to deny a defendant his right to physically confront
his adversaries in a court of law[,]” we concluded that “a court must render an adequate,
case-specific finding based on the evidence presented that the two-way video conference
is necessary to further the identified public policy.” Id. at 398.
Ultimately, we held that “the combined public policy justifications of resolving cold
cases and simultaneously protecting the physical well-being of a significant witness are
sufficient under Craig to warrant the absence of [the forensic witness’s] in-court testimony
in this case.” Id. Moreover, the Skype and Webex platforms provided sufficient
transmission quality that, “absent any technological complications[,]” established “the
traditional indicia of reliability under the Confrontation Clause.” Id. at 393.
Following our decision in White, the Court of Appeals held that the use of Skype
testimony may be a reasonable and necessary means of presenting evidence in a civil
proceeding when a foreign witness cannot be compelled by subpoena to testify in person.
In Att’y Grievance Comm’n of Md. v. Agbaje, 438 Md. 695, 719–20 (2014), the Court
found good cause to allow Skype testimony in a bar disciplinary hearing because the
complaining client-witness was beyond its subpoena power.
In 2018, the Court of Appeals adopted Md. Rules 2-803,3 2-804, and 2-805,
3
Rule 2-803 provides in pertinent part:
(continued . . .)
13
establishing new standards for video testimony during civil proceedings, in an effort to
“expand[] and consolidate[] existing Rules dealing with remote electronic participation in
judicial proceedings.” Standing Comm. on Rules of Practice and Procedure, Notice of
Proposed Rule Changes, 195th Report, at 7 (Feb. 6, 2018). The new rules include specific
standards for two-way video testimony, which are designed “to take advantage of the
technology that allows for reliable interactive communication to provide for more efficient
(a) In General. Subject to section (b) of this Rule and Rule 2-804, a court,
on motion or on its own initiative, may permit . . . participants to participate
in an evidentiary proceeding by means of remote electronic participation (1)
with the consent of all parties, or (2) in conformance with section (c) of this
Rule. . . .
***
(c) Absence of Consent; Required Findings. In the absence of consent by
all parties, a court may exercise the authority under section (a) only upon
findings that:
(1) participation by remote electronic means is authorized by statute; or
(2) the participant is an essential participant in the proceeding or conference;
and
(A) by reason of illness, disability, risk to the participant or to others, or other
good cause, the participant is unable, without significant hardship to a party
or the participant, to be physically present at the place where the proceeding
is to be conducted; and
(B) permitting the participant to participate by remote electronic means will
not cause substantial prejudice to any party or adversely affect the fairness
of the proceeding.
Committee note: It is not the intent of this section that mere absence from the
county or State constitute good cause, although the court may consider the
distance involved and whether there are any significant impediments to the
ability of the participant to appear personally.
14
access to the courts, without sacrificing the required fairness in judicial proceedings.” Id.4
Applying these lessons to the Craig/White analytical framework for determining
whether two-way video testimony comports with the Sixth Amendment right of
confrontation in this criminal case, we hold that the trial court did not err in allowing Sanoh
to testify via Skype. The preliminary hearing comported with the procedure approved in
White for testing the reliability of the Skype platform and for determining individualized
necessity and public policy. For reasons that follow, we conclude that the State established
a constitutionally valid predicate for permitting Sanoh to testify via Skype.
Reliability
First, the trial court found that, as in White, Skype provided a sufficiently reliable
4
Among the relevant “conditions” established by Rule 2-804 is that “remote
electronic participation shall not be permitted unless the process, including connections,
software, and equipment, to be used comply with standards developed by the State Court
Administrator and approved by the Chief Judge of the Court of Appeals pursuant to Rule
2-805.” Md. Rule 2-804(b)(1). Under Rule 2-805, the “minimum standards” for video
testimony
include the following requirements:
(1) All participants shall be able to communicate with each other by sight,
hearing, or both as relevant.
(2) Unless waived by the participants, all participants shall be able to observe
all physical evidence and exhibits presented during the proceeding, and the
program shall permit participants to transmit documents as necessary.
(3) Video quality shall be adequate to allow participants and the fact-finder
to observe the demeanor and non-verbal communications of other
participants. Sound quality shall be adequate to allow participants to hear
clearly what is occurring where each of the participants is located.
15
technological platform to present Sanoh’s testimony. The court emphasized that the video
transmission delivered a clear picture and sound, with only a slight sound delay. The court
pointed out that Sanoh was under oath; that the prosecutor, defense counsel, and the court
were free to question the witness “in real time”; and that Spinks, counsel, the judge, and
the jury were able to observe his demeanor on a large screen in the courtroom. Although
defense counsel objected that Sanoh was using his cell phone, so that his view of the
proceedings was necessarily limited to the size of that screen, the court found that Sanoh
had an adequate view of the courtroom proceedings. As in White, this Skype technology
was reliable enough to afford Spinks a constitutionally sufficient opportunity to confront
the witness.
We are not persuaded otherwise by Spinks’s belated complaint that the oath sworn
by Sanoh lacked the same efficacy as if it had been made in a Maryland courtroom, given
that “[t]he threat of a possible perjury prosecution . . . is nonexistent for someone residing
in another country in another continent who cannot legally reenter the United States.”
Spinks did not preserve this objection because he did not make that argument to the trial
court, when the court could have redressed his concerns by examining Sanoh regarding his
understanding of the seriousness and solemnity of the matter. Absent any such colloquy,
Sanoh’s willingness to testify, the undisputed fact that he was robbed, and his strong desire
to return to the United States indicate that he had incentive to testify truthfully in order to
avoid a perjury charge that may have prevented him from obtaining a new visa.
Public Policy
The trial court also found that allowing Sanoh to testify via Skype furthered the
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“important public policy” of prosecuting violent crimes committed in Maryland against
individuals whose citizenship and immigration status prevents them from being present to
testify at trial. A contrary ruling, the court pointed out, would mean that the State could
not prosecute an armed robber whose victim is not a U.S. citizen and cannot remain in the
United States or return to testify at trial due to visa or other immigration obstacles. In the
trial court’s view, “all persons who are in this country, regardless of why they’re here,
regardless of whether it is or isn’t lawful for them to be here, are entitled to the protection
of our criminal laws and are entitled, if they are the victim of a crime, to be heard and to
have a case decided by a jury.” The court ruled that to avoid creating “more than one class
of victim[,]” and to prevent the assailant from going free, it is necessary to allow such
victims to testify remotely when they “can’t lawfully come back.”
We agree that requiring in-courtroom testimony under these circumstances would
undermine the important policy of protecting members of the public from violent crime.
In particular, precluding prosecutions based on the inability of a foreign witness who
cannot legally return to this country to testify in the courtroom would increase both the risk
of violent offenders remaining at large and the risk of foreign individuals being targeted as
victims because they may not be able to testify in person.
Necessity
Finally, the court found that testifying remotely was necessary because of Mr.
Sanoh’s family emergency, lack of U.S. citizenship, and visa status. As in Agbaje, Sanoh
was an essential fact witness who was in another country, beyond the subpoena power of
the State. Moreover, the court found that his reason for leaving Maryland was genuine and
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reasonable, based on his mother’s sudden hospitalization. Of particular import is that
Sanoh wanted to return for trial, but could not, because he is not a U.S. citizen, did not
have a visa, and would not be likely to obtain one in the reasonable future given that he
overstayed his previous visa. As the trial court pointed out, Sanoh’s reentry obstacles
distinguish his situation from instances when a foreign witness is simply unwilling, for
reasons of expense or inconvenience, to travel to the United States in order to testify in
person. See, e.g., Yates, 438 F.3d at 1316 (holding that trial court erred in allowing remote
testimony by two essential witnesses who were unwilling to travel from Australia). These
circumstances are sufficient to establish the necessity contemplated by Craig and White.
We find nothing in the trial record to support Spinks’s appellate claim that the State
should have been required to prove that it could not assist Sanoh in returning for a
postponed trial. Although Spinks claims that the State has “power . . . to assist in securing
the in-court presence of non-citizen victims[,]” he cites no supporting legal authority. In
any event, the trial court implicitly rejected any suggestion that the State could secure
Sanoh’s presence when it found “no reasonable expectation that he’ll even get [a visa]
because he will have to reveal to the immigration authorities that he probably knowingly
overstayed his prior [v]isa and the chances of him getting a new one are probably not high.”
Conclusion
Based on our independent review of this record, we hold that the trial court did not
violate Spinks’s Sixth Amendment right of confrontation by allowing this robbery victim
to testify via Skype. The Skype platform allowed Spinks to confront Sanoh in real time,
under oath, and via a two-way platform featuring clear video and sound. Accordingly, the
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Skype platform preserved all of the important elements of confrontation aside from face-
to-face courtroom testimony. Additionally, the denial of Spinks’s right to face-to-face
confrontation was permissible because public policy supports the use of such video
technology to enable prosecution of violent crimes against a victim whose citizenship and
immigration status prevent him from testifying in person. Finally, the trial court here made
adequate, case-specific findings that the use of video technology in this case was necessary
because Sanoh reasonably left the United States in response to his mother’s medical
emergency, and that Sanoh could not lawfully return to Maryland to testify at trial.
JUDGMENTS OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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