Bailey, J.
Willie Mills, Sr. (“Mills”) appeals his convictions, following a jury trial, for burglary, as a Level 2 felony; burglary, as a Level 3 felony; armed robbery, as a Level 3 felony; and battery by means of a deadly weapon, as a Level 5 felony.
We affirm.
Mills raises the following three restated issues: I. Whether the trial court committed fundamental error by infringing upon Mills’s right to confront witnesses. II. Whether the trial court committed error when it admitted into evidence the statement Mills voluntarily gave to law enforcement after he had been appointed legal counsel. III. Whether the State provided sufficient evidence to support Mills’s convictions.
…
Mills maintains that his state constitutional right to confront witnesses was denied by the court’s requirement that he wear a face mask during trial. That requirement was created by the Indiana Supreme Court’s Order on Continued Emergency Actions, issued on November 10, 2020, in response to the national COVID-19 pandemic.
…
The trial court in this case explained to the parties and the jurors that, pursuant to the Indiana Supreme Court and a Wayne County requirement, “all visitors into the courthouse [must] wear a mask.” Tr. v. II at 133. The court explained that the judge and attorneys would be permitted to remove their masks when they were socially distanced from others. The court further explained that there was plexiglass around the witness stand “because you really want to view a witness’s full face” while they are testifying, implying testifying witnesses would not be wearing masks. Id. at 19. During the trial, the court instructed witnesses that they could remove their masks while testifying but were required to put the mask back on when they stepped down from the witness stand. The trial court instructed Mills to lower his face mask when witnesses were identifying him and while Mills was testifying. Thus, the purposes of the confrontation clause were fulfilled because Mills and the jurors were able to observe the demeanor of each witness who testified. See Casada, 544 N.E.2d at 192.
Moreover, while there are no published Indiana opinions regarding the constitutionality of COVID face mask requirements in courts, other state and federal courts have addressed the issue and determined that such requirements do not violate the defendant’s constitutional right to confront witnesses. See, e.g., State v. Daniels, No. E2021-00561-CCA-R3-CD, 2022 WL 2348234, *4-6 (Tenn. Crim. App. June 29, 2022) (finding no violation of the federal or state constitutional right to confront witnesses where the defendant was required to wear a mask during trial, but testifying witnesses were not); United States v. Tagliaferro, 531 F.Supp.3d 844 (S.D.N.Y. 2021) (same, regarding the federal constitutional right to confront witnesses).
In fact, courts have found no confrontation clause violation when even the testifying witnesses were required to wear masks. See, e.g., People v. Lopez, 290 Cal.Rptr.3d 383, 384 (Cal. Ct. App. 2022) (citing federal cases reaching the same holding).
…
That reasoning equally applies to the requirement that Mills wear a mask at times other than when testifying or lowering his mask for identification purposes. That is, Mills has failed to show that requirement prevented the jury from constructively assessing his credibility “throughout [the] trial.” Appellant’s Br. at 15.
Mills has failed to show that the face mask requirement denied him a fair trial and, thus, was fundamental error. Rather, the face mask requirement was a reasonable limitation on the right to confront witnesses, designed to further the public policy of ensuring the safety of everyone in the courtroom during the global COVID pandemic.
…
Article I, Section 13 of the Indiana Constitution did not prohibit the use of Mills’s statement to impeach his trial testimony where Mills initiated and knowingly, freely, and voluntarily gave the statement to law enforcement after he was appointed legal counsel.
…
Here, through witness testimony and DNA evidence, the State presented sufficient evidence that: Mills drove Junior to Johnson’s house in Mills’s vehicle; Mills and Junior entered Johnson’s house while Johnson was sleeping; Mills and Junior beat Johnson; Mills was aware that Junior had a hammer and was beating Johnson with it; Mills watched over Johnson while Junior put Johnson’s property into a pillowcase; Mills saw Junior leave Johnson’s house with the pillowcase; Mills drove Junior away from the scene of the attack; and Johnson suffered severe injuries as a result of the attack.
The State presented sufficient evidence to support Mills’s convictions as an accomplice.
Mills failed to show that the face mask requirement imposed by the trial court denied him his right to confront witnesses waived his Article I, Section 13 and was fundamental error. Mills right to counsel claim by failing to raise it in the trial court. Waiver notwithstanding, Mills failed to show any reason why, unlike the federal constitution, the state constitution should be disallow admission of a statement that interpreted to a defendant knowingly and voluntarily gave to law enforcement after appointment of counsel. And the evidence to support Mills’s convictions as an accomplice.
Affirmed.
Riley, J., and Vaidik, J., concur.