Commonwealth of Kentucky v. Gary Gardner ( 2021 )

RENDERED: AUGUST 13, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1383-MR
COMMONWEALTH OF KENTUCKY APPELLANT
FROM OLDHAM CIRCUIT COURT
v. HONORABLE KAREN A. CONRAD, SPECIAL JUDGE
ACTION NO. 18-CR-00203
GARY GARDNER APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
LAMBERT, JUDGE: The Commonwealth of Kentucky appeals the Oldham
Circuit Court’s order denying the Commonwealth’s motion to present witness
testimony at trial via two-way videoconferencing platforms. Following a careful
review of the record and the law, we affirm.
On August 10, 2018, an Oldham County grand jury indicted Gary
Gardner (“Gardner”) for complicity to commit fraudulent insurance acts (over
$500.00). A jury trial was scheduled in the case for October 19, 2020. At a status
conference on October 1, 2020, the Commonwealth expressed interest in
presenting trial testimony from an inmate in federal prison via two-way
videoconferencing technology. Gardner’s counsel objected to the use of remote
testimony, and the trial court scheduled a hearing on the matter for October 7,
2020.
At the hearing, the Commonwealth made an oral motion to present a
witness, Logan Silliman, via two-way videoconferencing platforms such as Zoom
or Skype. Silliman was incarcerated at the federal correctional institution in
Manchester, Kentucky. In support of its motion, the Commonwealth pointed to
Kentucky Supreme Court Administrative Order (“Administrative Order”) 2020-
63(B)(1), which mandated Kentucky courts “hear civil and criminal matters using
available telephonic and video technology to conduct all proceedings remotely.” 1
The Commonwealth further noted that not only would the correctional facility’s
protocols in place at the time require Silliman to be quarantined for a 14-day
period before he could be transferred to Oldham County, Silliman would have to
1
Administrative Order 2020-63 became effective on August 1, 2020 in an effort to address the
health and safety of court employees, elected officials, and the public during the COVID-19
pandemic.
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be quarantined for an additional 14-day period once he was transferred to the
Oldham County jail.
Gardner’s counsel again objected, arguing that allowing Silliman to
testify remotely would violate Gardner’s right to in-person cross-examination. By
order entered October 7, 2020, the trial court denied the Commonwealth’s motion
to present Silliman’s testimony via two-way video:
The Commonwealth has not demonstrated that
using Zoom or other video technology to secure a
witness’ testimony is necessary to further an important
public policy. The Commonwealth has the ability to
secure the witness’ attendance by utilizing [Kentucky
Revised Statute] KRS 455.150 – Procedure for bringing
material witness in state felony trial from federal prison.
Though the [c]ourt is cognizant of the threat of the
[COVID-19] virus, especially to inmate populations, the
[c]ourt believes the defendant’s 6th Amendment Right to
confront the witness is superior especially as the [c]ourt
and [c]orrections take all steps necessary to limit the
spread of the virus.
For the foregoing reasons, the [c]ourt DENIES the
Commonwealth’s request to have its witness present his
testimony via Zoom or another remote video technology.
The Commonwealth filed an interlocutory appeal pursuant to Kentucky Rule of
Criminal Procedure (RCr) 12.04 and KRS 22A.020 seeking review of the trial
court’s order.
Before we reach the merits of the Commonwealth’s appeal, we must
first address Gardner’s argument that the Commonwealth failed to comply with
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Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v). That provision requires an
appellant’s brief to contain a statement regarding whether arguments in the brief
were preserved for appellate review.2 Gardner contends that the Commonwealth
failed to preserve the issues of whether Maryland v. Craig, 497 U.S. 836, 110 S.
Ct. 3157, 111 L. Ed. 2d 666 (1990), and the Sixth Amendment right of
confrontation apply to two-way video testimony. However, we “may decide an
issue not briefed on appeal when that issue flows naturally under our appellate
review of the issue raised.” Commonwealth v. Pollini, 437 S.W.3d 144, 148 (Ky.
2014) (internal quotation marks and citations omitted).
The trial court denied the Commonwealth’s motion, at least in part,
because the Commonwealth failed to demonstrate that using Zoom or other video
technology was necessary to further an important public policy. A determination
of the applicability of Craig to the facts in the present case is necessary for this
Court to address the merits of the trial court’s ruling. Accordingly, we hold that
any question with respect to the preservation of issues for appeal will not limit our
review of the Commonwealth’s claims herein.
2
CR 76.12(4)(c)(v) provides that an appellant’s brief shall contain “[a]n ‘ARGUMENT’
conforming to the Statement of Points and Authorities, with ample supportive references to the
record and citations of authority pertinent to each issue of law and . . . shall contain at the
beginning of the argument a statement with reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner.”
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We review a trial court’s ruling on the admissibility of evidence for an
abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999);
see also Commonwealth v. Leahy, No. 2001-CA-002726-DG, 2003 WL 1270525(Ky. App. Feb. 7, 2003).3 “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Id.The Sixth Amendment to the United States Constitution provides:
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. CONST. amend. VI; see also
KY. CONST. § 11 (“In all criminal prosecutions the accused has the right to be
heard by himself and counsel; to demand the nature and cause of the accusation
against him; to meet the witnesses face to face, and to have compulsory process for
obtaining witnesses in his favor.”).
However, a criminal defendant’s constitutional right to face-to-face
confrontation is not absolute. Sparkman v. Commonwealth, 250 S.W.3d 667, 669
(Ky. 2008). Accordingly, in Maryland v. Craig, the United States Supreme Court
held that “a defendant’s right to confront accusatory witnesses may be satisfied
absent a physical, face-to-face confrontation at trial [(1)] only where denial of such
confrontation is necessary to further an important public policy and [(2)] only
3
Cited to demonstrate consistency among appellate decisions rendered in the Commonwealth.
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where the reliability of the testimony is otherwise assured.” 497 U.S. at 850, 110 S.
Ct. at 3166. The Court in Craig explained that “[t]he requisite finding of necessity
must of course be a case-specific one: The trial court must hear evidence and
determine whether use of [platforms other than physical face-to-face testimony] is
necessary to protect the welfare of the particular . . . witness who seeks to testify.”
Id. at 855, 110 S. Ct. at 3169.
Since Craig, neither the Kentucky Supreme Court nor the United
States Supreme Court has addressed the issue of whether the Craig analysis applies
to two-way video testimony. However, the majority of federal and state courts
have held that the Craig “necessity” standard must be satisfied before a witness
may testify via a two-way videoconferencing platform. See, e.g., United States v.
Carter, 907 F.3d 1199, 1208 n.4 (9th Cir. 2018); United States v. Abu Ali, 528 F.3d
210, 240-41 (4th Cir. 2008); United States v. Yates, 438 F.3d 1307, 1313-14 (11th
Cir. 2006); United States v. Bordeaux, 400 F.3d 548, 554-55 (8th Cir. 2005); State
v. Mercier, 403 Mont. 34, 45, 479 P.3d 967, 975 (2021) (noting that the
“overwhelming majority of jurisdictions have applied Craig to two-way video
procedures”); State v. Rogerson, 855 N.W.2d 495, 501-03 (Iowa 2014).
On appeal, the Commonwealth argues that we should apply the
alternate approach to the issue of testimony presented via two-way video which
was adopted by the United States Court of Appeals for the Second Circuit in
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United States v. Gigante, 166 F.3d 75 (2d Cir. 1999). In Gigante, the Second
Circuit examined the trial court’s use of a two-way videoconferencing platform in
which the witness and the defendant could see one another during the witness’
testimony. The court noted that the facts before it were different than those in the
Craig case, which involved testimony using “one-way closed-circuit television,
whereby the witness could not possibly view the defendant.” Id. at 81. Thus,
rather than applying Craig’s “necessity” standard, Gigante held that in cases where
two-way videoconferencing technology is offered:
[a] more profitable comparison can be made to the Rule
15 deposition, which under the Federal Rules may be
employed “[w]henever due to exceptional circumstances
of the case it is in the interest of justice that the testimony
of a prospective witness of a party be taken and
preserved for use at trial.” Fed. R. Crim. P. 15(a). That
testimony may then be used at trial “as substantive
evidence if the witness is unavailable.” Fed. R. Crim. P.
15(e). Unavailability is defined by reference to Rule
804(a) of the Federal Rules of Evidence, which includes
situations in which a witness “is unable to be present or
to testify at the hearing because of . . . physical or mental
illness or infirmity.” Fed. R. Evid. 804(a)(4).
(Emphasis added.) In the case at bar, the Commonwealth asserts that, because the
courtroom personnel could have arranged video cameras such that Silliman and
Gardner could see each other, albeit virtually, the situation in this case is much
more similar to face-to-face confrontation than the one-way closed-circuit system
at issue in Craig. Moreover, the Commonwealth argues that there are sufficient
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“exceptional circumstances” present in this case to dispense with Gardner’s right to
in-person confrontation, specifically, the highly contagious nature of the COVID-
19 virus and the fact that the testifying witness is incarcerated. We disagree.
What is “necessary” under the Craig standard to allow witnesses to
testify remotely is a high bar to meet. See United States v. Casher, No. CR 19-65-
BLG-SPW, 2020 WL 3270541, at *4 (D. Mont. Jun. 17, 2020). Over the past year,
numerous federal district courts have held that, absent a specific showing that an
individual witness was particularly vulnerable to COVID-19, and that other
precautionary measures would not adequately protect the witness, general concerns
about the spread of the virus do not justify abridging a defendant’s right to in-
person confrontation. See, e.g., United States v. Kail, No. 18-CR-00172-BLF-1,
2021 WL 1164787, at *1 (N.D. Cal. Mar. 26, 2021); United States v. Pangelinan,
No. 19-10077-JWB, 2020 WL 5118550, at *4 (D. Kan. Aug. 31, 2020); Casher,
2020 WL 3270541, at *3.4
In the present case, the trial court, citing Craig, found that the
Commonwealth failed to demonstrate that utilizing two-way video technology was
necessary to further an important public policy. Further, the trial court pointed to
KRS 455.150 to support its conclusion that the Commonwealth has the ability to
4
We cite federal case law herein as persuasive, not mandatory, authority.
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secure Silliman’s attendance.5 In this case, there was no evidence presented by the
Commonwealth that Silliman was particularly vulnerable to the risks of COVID-19
and that other precautionary measures, such as the correctional facility’s protocols
and the specific provisions of Administrative Order 2020-63(B)(2), would not
adequately protect Silliman’s health, or the health of other individuals in the
courtroom. Moreover, as noted by the trial court, Subsection 2 of Administrative
Order 2020-63(B) left the decision of whether in-person attendance was required to
the discretion of the trial judge. Thus, we hold that it was within the discretion of
the trial court to deny the Commonwealth the opportunity to present Silliman’s
5
KRS 455.150 provides:
When a material witness for the Commonwealth in a felony
prosecution pending in a court of this state is confined under
judgment of conviction in any federal penal institution, the
Commonwealth’s attorney may enter into an agreement with the
appropriate federal authorities for conveyance of the witness at the
expense of this state to the Circuit Court in which the trial is
pending, and after trial, for return to the federal penitentiary. The
Commonwealth’s attorney shall move the Circuit Court for an
order for the attendance of the witness and shall state the situation
of the prisoner, the date set for trial of the case, the importance of
his testimony to the Commonwealth, and the agreement of the
federal authorities to produce the prisoner in court. The Circuit
Court shall designate the officer to transport and guard the prisoner
and such person shall be reimbursed from the State Treasury for
his expenses in the amount and manner provided in KRS
64.070(1); provided, however, that if a United States marshal or
other federal official is designated by the court to transport and
guard the prisoner such marshal or officer shall be reimbursed at
the rate authorized by federal law or regulations. The Circuit
Court shall enter an order of allowance of expenses for the officer
upon conclusion of the trial.
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testimony via a two-way videoconferencing platform.
We find no error in the trial court’s electing not to apply the minority
approach of Gigante, supra. Even assuming, arguendo, that the trial court had
applied the Gigante approach, the evidence provided by the Commonwealth would
not have been sufficient to satisfy the “exceptional circumstances” test.
Like the cases applying Craig’s “necessity” standard,
cases applying the “exceptional circumstances” test have
required some specific showing of medical conditions or
risks faced by particular witnesses to justify the taking of
testimony using videoconferencing technology. See
Gigante, 166 F.3d at 81 (citing “the medical evidence of
[the witness’s] poor health,” and “the joint exigencies of
[the witness]’s secret location [due to participation in
witness protection program] and Gigante’s own ill health
and inability to travel”); United States v. Benson, 79 Fed.
Appx. 813, 820-21 (6th Cir. 2003) (85-year-old witness
who was “too ill to travel” from California to Cleveland
due to “extensive health problems” and recent “major
stomach surgery” which left her “underweight and
fatigued”); United States v. Akhavan, No. 20-CR-188
(JSR), ––– F.Supp.3d ––––, ––––, 2021 WL 797806, at
*9 (S.D.N.Y. Mar. 1, 2021) (citing witness’ need for
cross-country travel, as well as “his age and
comorbidities,” to find “severe risks of severe illness or
death” from COVID-19); United States v. Davis, No. 19-
101-LPS, 2020 WL 6196741, at *4 (D. Del. Oct. 22,
2020) (relying on “a combination of [multiple witnesses’]
distance from Delaware and his or her particularized risk
factors”); [United States v.] Donziger, [No. 18-CR-561
(LAP),] 2020 WL 5152162, at *3 [(S.D.N.Y. Aug. 31,
2020)] (finding “exceptional circumstances” due to
witness’ age, documented health conditions which placed
him at heightened risk from COVID-19, and need for
cross-country travel and lengthy quarantine).
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C.A.R.A. v. Jackson Cty. Juvenile Office, No. WD 83967, 2021 WL 2793539, at *8
(Mo. App. Jul. 6, 2021). As noted above, the Commonwealth did not present any
evidence that Silliman was particularly susceptible to the risks of COVID-19, aside
from the nature of his incarceration. The Commonwealth points to the general
risks of potentially exposing multiple people to COVID-19 associated with
transferring a witness from custody to testify in an in-person setting. However, as
alluded to by the trial court in its order denying the Commonwealth’s motion,
general concerns about the threat of COVID-19 do not justify a denial of Gardner’s
confrontation clause rights, especially in light of the precautionary measures in
place to limit the spread of the virus.
For the foregoing reasons, we affirm the Oldham Circuit Court’s order
denying the Commonwealth’s motion to present a witness via two-way
videoconferencing platforms.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron Erin Hoffman Yang
Attorney General of Kentucky Frankfort, Kentucky
Christopher Henry
Assistant Attorney General
.
Frankfort, Kentucky
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