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Testimony by Skype satisfies confrontation clause, Maryland appeals court says

Judge Donald Beachley was joined in the opinion by Judges Douglas R.M. Nazarian and Laura S. Ripken, shown above. (Submitted Photo)

A criminal defendant’s constitutional right to confront witnesses against him at trial was not violated when his Silver Spring robbery victim was permitted to testify by videoconference because he was visiting his sick mother abroad and lacked a visa to reenter the United States, Maryland’s second-highest court ruled Wednesday.

In its reported decision, the Court of Special Appeals said the high quality of the videoconferencing technology and the necessity of the victim’s absence provided an exception to the Sixth Amendment’s general requirement that testimony from prosecution witnesses be delivered in the courtroom.

The appellate court also cited the “important public policy” of preventing violent offenders from targeting victims who would be unavailable to testify at trial in the absence of videoconferencing.

The Court of Special Appeals rendered its decision in upholding the robbery conviction of Jerel Lewis Spinks, whose victim – Oumar Sanoh – testified from his native Guinea via the Skype online videoconferencing site. The court rejected the defense’s argument that the online session impeded cross examination as well as the Montgomery County Circuit Court jury’s ability to gauge Sanoh’s truthfulness.

The testimony via Skype “delivered a clear picture and sound, with only a slight delay,” Judge Donald E. Beachley wrote for the court, citing the conclusions of the trial judge, Ronald B. Rubin. “The (trial) 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.”

Sanoh testified he was searching for a party in Silver Spring on Feb. 18, 2019, when a stranger, Najie Walker, told him of one at a nearby apartment. Sanoh said he drove Walker to the Sligo House Apartments, where Walker left him temporarily, ostensibly to ask if Sanoh can join the party.

Walker returned to the car with Spinks, who got in the back seat with Sanoh. While Spinks held Sanoh, Walker pulled out a handgun and held it to Sanoh’s neck, he testified.

Sanoh said Walker and Sprinks robbed him of $1,640 in cash as well as the Gucci bag in which he carried the money.

Sanoh’s testimony contradicted that of Spinks, who told the jury he knew nothing of Walker’s plans when they went to the car, never held Sanoh and did not participate in any way with the robbery. Spinks added that Walker held him at bay by threatening him with the gun.

The jury found Spinks guilty of armed robbery and conspiracy to commit armed robbery. He was sentenced to 30 years in prison.

Walker, in a separate case, pleaded guilty to robbery and was also sentenced to 30 years in prison – but with 15 years suspended – and five years of supervised probation, according to the Maryland Judiciary Case Search data base.

Spinks appealed his conviction, arguing in vain that the use of Skype violated the confrontation clause despite Sanoh’s inability to return to the United States to testify due to his lack of a visa.

“(R)equiring in-courtroom testimony under these circumstances would undermine the important policy of protecting members of the public from violent crime,” Beachley wrote. “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.”

Beachley was joined in the opinion by Judges Douglas R.M. Nazarian and Laura S. Ripken.

Spinks’ appellate attorney, Assistant Maryland Public Defender Katherine P. Rasin, did not immediately return a message Friday seeking comment on the court’s decision and potential plans to seek review by the Court of Appeals.

The Maryland attorney general’s office declined to comment on the decision.

The Court of Special Appeals rendered its decision in Jerel Lewis Spinks v. State of Maryland, No. 1935, September Term 2019.