Today’s case is brought to us by the number 6.  The Sixth Amendment of the United States Constitution to be exact.  It’s an intriguing story of a man (Mr. Cox) who was tried without his right to confront his witness.  Although many will read the story below and assume guilt or innocence based on the facts presented.  We still have a duty to uphold the individual Constitutional Rights of all people.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Minnesota Constitution contains nearly identical language. Any difference in the language must be construed to grant Mr. Cox additional protection, not less. There is a narrow exception to the confrontation right, referred to as forfeiture by wrongdoing, which “extinguishes confrontation claims on essentially equitable grounds . . . .”

Before delving into the case of Mr. Cox, let’s take a step back and look at the defining case of the Confrontation Clause, Renolds v. U.S. In 1879, Mr. Renolds was a fine upstanding citizen and member of his local church. The problem was, one of the tenants of his church included taking on more than one wife.  Mr. Renolds was charged with being a bigamist.

During the trial, the State tried repeatedly to get his second wife in front of the court.  Mr. Renolds responded by continually moving her from house to house and having her avoid service.  The court determined that Mr. Cox had activly acted to waive his Sixth Amendment right to confront his witness

The most significant case since Renolds v. U.S. is Crawford, I will not attempt to expound on Crawford at this point, as volumns have been written about that case, and to give it a blurb would be, at best, an injustice.  Since Crawford, however, Giles v. California has added an additional inturpurtation to the mix.

On to the present case, Mr. Cox was accused of shooting a cab driver in the early morning on Feb 4th, 2007.  Although there seemed to be significant evidence against him, one of the strongest peices of evidence was the testimony of an individual know as S.T.  She was the State’s star player.  She heard what Mr. Cox said, she saw evidence that supported the belief that he killed the driver, she even told the police, and testified at a Grand Jury Hearing.

The problem is, S.T. said she didn’t want to testify at the trial.  She asked not to testify.  She said she didn’t want to. She indicated that the reason may stem from the fact that Mr. Cox had family members visit S.T. and insinuate that she should not testify.  The Court found that sufficient and her Grand Jury testimony was admitted.  Mr. Cox was found guilty and appealed.

The MN Supreme Court found that the trial court erred because S.T. did not say she would not testify or that S.T. was even given the opportunity to do so.  Without attempting to have S.T. testify, Mr. Cox right to confront his accusers was violated.

Please remember that the interpretation and analysis presented here is not intended to be legal advice.  If you are seeking legal advice please contact us for a free consultation and actual examination the issues that your case may present.

Thank you,

Landon J. Ascheman, Esq.

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Hennepin County Anderson,Paul H., J.

State of Minnesota,


vs. Filed: March 18, 2010
Officeof Appellate Courts
Brandon D. Cox,



Lori Swanson, Attorney General, St. Paul, Minnesota; and

MichaelO. Freeman, Hennepin County Attorney, DavidC. Brown,Assistant Hennepin County Attorney, Minneapolis, Minnesota, forrespondent.

Theodora Gaïtas, Assistant State Public Defender, St. Paul, Minnesota,for appellant.


The admission of grand jurytestimony of a potential State witness who expressed reluctance to testify attrial violated the appellant’s Confrontation Clause rights and was not harmlessbeyond a reasonable doubt.
Under the facts and circumstances of this case, a retrialof the appellant does not violate the Double Jeopardy Clause.
Reversed and remanded for a newtrial.
ANDERSON, Paul H., Justice.
Brandon D. Cox was convicted inHennepin County District Court of first-degree felony murder, Minn. Stat. §§609.185(a)(3),609.05 (2008), and felon in possession of a firearm,Minn.Stat.§624.713, subd. 1(2), 2(b) (2008) (renumbered in2008; previously designated as subdivision 1(b)), in connection with theshooting death of James Moody. In thisappeal, Cox argues that the admission at trial of grand jury testimony of apotential State witness who expressed reluctance to testify at trial, wasreleased from a subpoena, and did not testify at trial, violated his confrontationrights under the United States Constitution.We conclude that admission of the testimony was constitutional error,that the error was not harmless beyond a reasonable doubt, and that retrial doesnot violate the Double Jeopardy Clause.Therefore we reverse Cox’s convictions and remand for a new trial.
In theearly morning of February4, 2007, at approximately 3:45a.m., aRainbow Taxi driver and his customer saw a Suburban, Green and White Taxi withall four doors open parked in front of an apartment building complex in Brooklyn Center, Minnesota. As the Rainbow Taxi passed the Green andWhite taxi, the customer thought he saw someone lying on the ground near the Greenand White taxi. Believing that it was necessaryto investigate the situation right away, the driver turned his taxi around andpulled into the parking lot. Uponfurther investigation, the driver and his customer found the driver of theGreen and White Taxi slumped out to the side of his taxi, and that taxi’s enginewas running. The Green and White driverwas later identified as James Moody.Following their initial investigation, the Rainbow driver entered thepassenger side of Moody’s cab to activate the emergency button while thecustomer called 911.
The Investigation
The police arrived at the scenewithin approximately five minutes. Itwas immediately apparent that Moody was dead.The police secured the area, called officers at the crime lab, andnotified the medical examiner. Other respondingofficers canvassed the apartment complex, looking for potential witnesses. The crime lab technician who investigated thecrime scene collected three discharged cartridge casings, two from the frontpassenger’s seat area and one from the ground near Moody’s body.
The medical examiner arrivedshortly before 6:00 a.m. The examiner initiallynoted that the right side of Moody’s face was on the pavement, his right footwas on the running board, his left foot was just underneath the running board, hisright arm was tucked underneath the body, and his left arm was dangling to theside. During the autopsy, the examinerfound three gunshot wounds. One bulletentered Moody’s upper back, went through the junction of the vena cava and theright side of the heart, and lodged in the sternum. A second bullet entered his right flank andexited the left side of the abdomen. Athird bullet took a sharp downward angle through the left side of Moody’s upperabdomen and eventually lodged in the right buttock. The examiner noted that the injuries toMoody’s face were typical of a sudden collapse in death onto a hardsurface. The examiner also found $126 inMoody’s wallet.
Meanwhile, Brooklyn Center police detectiveGarrett Flesland contacted the Green and White Taxi company and obtained the telephonenumber of the party who requested a taxi with a pickup address at the locationof the homicide. Green and White toldthe detective that Moody accepted the fare at 3:10a.m. and started his cab’smeter at 3:24a.m. Green and Whitesaid that typically, a taxi cab meter is turned on when a passenger enters thetaxi. The driver of the Rainbow taxipushed the emergency button in Moody’s taxi at 3:53a.m.
Using a law enforcementdatabase, the police determined that the telephone number obtained from Greenand White was assigned to a Qwest Wireless subscriber with a billing address inOmaha, Nebraska. Detective Fleslandcalled that telephone number, and the call went immediately to voice mail. Flesland then identified himself as a police detective,asked that whoever received his message contact him as soon as possible, andprovided his personal cell phone number.
The police also learned thatearlier during the morning of February4, the same Quest Wireless telephonenumber was used to summon a taxi cab from Blue & White Taxi. Blue & White employees told the policethat the man who called using that number had asked to be picked up atBrunswick Zone, a bowling alley in Brooklyn Park. Blue & White dispatched a taxi toBrunswick Zone at 12:25a.m. Thepolice then obtained a surveillance video from Brunswick Zone covering a timeframe from 7:00 p.m. on Saturday through about 2:00 a.m. on Sunday.
Just after3:00 p.m. on February 4, Detective Flesland was contacted by D.L., a residentof the Brooklyn Centerapartment building complex. Fleslandwent to D.L.’s apartment where he met with D.L. and S.T., a resident in anotherbuilding in the complex. Flesland initiallyinterviewed S.T. in his squad car and then at the police department. During the interview, he obtained S.T.’s consentto search her apartment. When the policeexecuted a search warrant on S.T.’s apartment, they found a black handgun, someclothing, and two cell phones.
At some point, Detective Fleslandshowed S.T. the surveillance video from Brunswick Zone, which showed theappellant, Brandon D. Cox, and his brother Willen McIntyre walking through the bowlingalley’s main lobby entrance around midnight.S.T. identified the two men and told Flesland that she had spent theevening with the two men shown in the video.Flesland, in an effort to find another gun and a cell phone, then directeda search of the area between the apartment complex and a nearby pharmacy, includingdumpsters and garbage cans.
By Monday, February 5, the policehad begun to focus on Cox as a suspect.They ran various database checks that listed his home address inOmaha. The police also traced the serialnumber from the black handgun found in S.T.’s apartment and learned that thegun had been purchased by McIntyre’s stepfather, who was in the Navy andstationed overseas at the time of the investigation. The police made contact with McIntyre’sstepfather, who stated that his gun should have been in the family’s home in Blaine. During a subsequent search of the McIntyrefamily home, the police found an empty gun holster but no gun.
On Tuesday, February 6, at 5:15p.m., the police executed a search warrant at the Brooklyn Park home of Cox’sfather. They found Cox inside the home andplaced him under arrest. Following hisarrest, Cox agreed to talk with Detective Flesland. When asked, Cox identified his home addressas being in Omaha, Nebraska. He saidthat he lived at that address with his mother and two brothers. He admitted that he, McIntyre and S.T. took ataxi cab from Brunswick Zone to S.T.’s apartment complex. Cox said he went to the apartment of anotherresident, S.W., to get a DVD player and returned to S.T.’s apartment where hestayed for the rest of the night, along with McIntyre and S.T. Cox admitted that the cell phone with servicelocalized to the Omaha area which was found in S.T.’s apartment belonged tohim. The police could not identify thesource of the second cell phone.
During their investigation, the policehad the discharged cartridge casings collected from the crime scene and bulletsrecovered from Moody’s body analyzed by a forensics firearms and tool marksexaminer. This investigation revealedthat the cartridge casing found on the ground near Moody’s body had been firedfrom the gun recovered from S.T.’s apartment.The bullet recovered from Moody’s buttock had a caliber and riflingpattern similar to the gun recovered from S.T.’s apartment but there wereinsufficient individual characteristics on the bullet to make a positiveidentification. The casings recoveredinside Moody’s cab were not fired from the gun found in S.T.’s apartment,although both casings had been fired using the same gun. The police never recovered the gun that firedthese casings.
On February22, 2007, aHennepin County grand jury indicted Cox on charges of first-degree murder,Minn. Stat. §609.185(a)(3) (intentional killing in the course of anaggravated robbery), and Minn. Stat. §609.05 (aiding and abetting an intentionalkilling in the course of an aggravated robbery); second-degree murder, Minn.Stat. §609.19, subd. 1(1) (2008) (intentional killing), and Minn. Stat.§609.05 (aiding and abetting an intentional killing); and felon inpossession of a firearm, Minn.Stat.§624.713, subd. 1(2), 2(b).
Cox’s jury trial began onNovember5, 2007. The Statepresented the evidence obtained by the police crime scene investigators, the forensicanalysis of this evidence, and the evidence recovered in the search of S.T.’sapartment. The State also presentedCox’s statements to the police. The Blue& White taxi cab driver testified about picking up a woman and two men atthe Brunswick Zone in the early morning on February4, 2007. The driver said he was acquainted with thewoman, S.T., but did not know either of the men. The passengers asked to be driven to S.T.’sapartment complex. Because of his concernthat he would not be paid, the driver asked for payment of the fare inadvance. One of the men became angry andsaid, “[T]hat is why they be shooting the other cab driver then.” S.T. paid the fare, and all three passengers weredropped off at S.T.’s apartment complex.
Midway through the trial, the Statemoved to admit S.T.’s grand jury testimony as substantive evidence againstCox. The State advised the districtcourt that it was making this request because S.T., who had been subpoenaed totestify, was afraid to testify as a result of threatening statements made toher. The court ordered an evidentiaryhearing to determine whether Cox had waived his right to confront S.T. The hearing was held in a closed courtroomand out of the presence of the jury.
At the evidentiary hearing, theState introduced an audio tape from an October 27, 2007, telephone call made byCox from the Hennepin County jail to R.J., the mother of Cox’s child. During the conversation, Cox gave R.J. theaddress to S.T.’s apartment, and asked her to get directions to that address usingMapQuest. At one point during the conversation, Coxsaid, “You gotta f–k with . . .” but did not finish his statement.
Cox testified at the evidentiaryhearing and stated that he asked R.J. to look up S.T.’s address because he didnot trust his attorney. He said he suspectedhis attorney was lying to him about S.T.’s address, and specifically, about heravailability to testify. Two days after receivingCox’s call, R.J. and Cox’s mother visited Cox at the jail. Jail records confirm the visit, but there isno evidence regarding what was said during the visit.
S.T. also testified at theevidentiary hearing. According to S.T.,at some point after testifying before the grand jury, she moved to a newaddress. The State subsequently providedS.T.’s new address to Cox’s attorney. S.T.testified that on October 25, 2007, she received a letter from Cox at her newaddress, instructing her to call someone.S.T. stated that she did not feel threatened by the letter. Two days after receiving the letter, S.T.said that she was approached by R.J. and Cox’s mother in the parking lot of hernew residence. S.T. testified that bothR.J. and Cox’s mother were in tears and that Cox’s mother told her that Cox was“not going to be able to do the time.” She said they were “basically asking menot to testify.” S.T. also recalled R.J.saying that Cox cannot be without his kids, and, “He’s not about to do thistime.” According to S.T., Cox’s mothersaid that she would “do whatever she had to do.” S.T. testified that R.J. and Cox’s motherstood about 5 feet away from her during the conversation. During the hearing, Cox’s attorney and theState provided statements from R.J. and Cox’s mother in which both women deniedever visiting S.T. at her home.
S.T. told the district court that followingthis visit, she was concerned for her safety and the safety of her child, andthat she believed testifying at Cox’s trial would put her in danger. The court asked S.T. whether she tookanything said by R.J. or Cox’s mother as a threat, and S.T. responded that “[i]t’snot just—you can simply ask somebody something like that, but to actually cometo somebody’s house and tell that somebody is not about to do it, is a threatto me.” S.T. added:
So by telling mehe’s not about to do this time, it’s basically telling me that with or withoutyou he is not about to do this time. Soyou have a choice, and if I don’t make the right choice, then they not comingout saying what the possibility of something happening, but that’s just how Itook it.

The district court then discussedwith S.T. the possibility of holding her in contempt if she did not testify,including the potential of S.T. going to jail.S.T. responded, “It’s not my thing that I just don’t feel [like]testifying. It’s really a simple factthat I don’t feel safe testifying.” S.T.also stated that the encounter with R.J. and Cox’s mother was the only reasonshe did not want to testify. At the endof the State’s direct examination of S.T., the State asked S.T., “If the judgesays today that he wants you to testify in front of this jury, will youtestify?” S.T. responded, “I don’t wantto.” The State then said to S.T., “Iknow you don’t want to. If the courtordered you to, would you testify or would you not?” S.T. responded, “I don’t know.”
Following the hearing, the districtcourt issued a written order granting the State’s motion to introduce S.T.’sgrand jury testimony and released S.T. from the subpoena to testify at Cox’strial. The court determined that theState had proved that Cox forfeited his confrontation rights and that S.T.’sgrand jury testimony was admissible under the “catch-all” hearsay exception, see Minn. R. Evid. 807. In its findings of fact, the courtcharacterized S.T.’s disposition as “extreme reluctance . . . to testify.” The court found that even though “there wasnever an explicit threat to her, [S.T.] was clearly distressed by the situationand appeared to be legitimately in fear.”The court also noted that S.T. “would likely not testify before a jurybecause she fears that, in the event she testified at the trial of Defendant,either she and/or her child will be harmed.”Although the court recognized that “there is a possibility that [S.T.]would appear and be somewhat responsive to questions,” the court found that“[S.T.] would be very reluctant to testify on any point, and likely less thanforthcoming in the knowledge of the events of the weekend of February3-5,2007.”
In its order, the district courtdeclared S.T. unavailable to testify “as a practical and legal matter.” Further,the court found S.T.’s grand jury testimony credible and concluded that Cox hadengaged in wrongful conduct—“singl[ing] out [S.T.] . . . specifically becauseof her importance as a witness against him”—that was “the proximate cause of[S.T.’s] unavailability at trial.”
Grand Jury Testimony
When Cox’s trial resumed, S.T.’s grandjury testimony was read to the jury. In hertestimony, S.T. said that in February 2007 she lived alone in her BrooklynCenter apartment. At that point, she hadknown Cox for six years. Sometime on aSaturday night in February 2007, Cox and S.T. called a taxi to take them to anearby bowling alley. McIntyre joinedthem at the bowling alley. When thethree of them decided to leave, Cox called another taxi. During the ride, the driver,whom S.T. knew as Larry, said he needed the fare before dropping them off. S.T. recalled Cox becoming angry but did notremember what was said. S.T. paid thefare, and the driver dropped them off at S.T.’s apartment complex. After watching a movie and eating pizza, S.T.fell asleep.
S.T. testified that she woke up tothe sound of Cox shutting the door to her apartment. Cox asked if she had heard any gun shots, andS.T. said no. S.T. then overheard a conversation betweenMcIntyre and Cox. S.T. testified thatCox said “something about the cab driver grabbing his gun” and “something about[Cox] shooting [the cab driver] twice.”S.T. also testified that McIntyre admitted “he shot him once.” S.T. also overheard Cox say that the driverwas going to give him the money.
S.T. further testified that when shelooked out her window she saw a taxi cab “just sitting there.” She later heard a dog barking and sawflashing lights in the street. She testifiedthat Cox was pacing back and forth, and talking in an “amped up” way withMcIntyre. Cox told S.T. that he wasscared and that he had thrown up. Atsome point, S.T. lay down but could not sleep, while Cox and McIntyre remainedin the apartment. Later in the morning,the police knocked on S.T.’s door, but S.T. said she did not answer because Coxtold her not to. Cox told S.T. to call a neighbor to ask“what the police do when they come in your house.” After that, S.T. saw Cox and McIntyre“emptying their guns.” S.T. said thatone of the guns was black and the other one was black and silver.
Shortly after emptying their guns,Cox and McIntyre left S.T.’s apartment.Cox told McIntyre to leave first and to call Cox from the pharmacy acrossthe street. Before leaving, Cox askedS.T. for money, and she gave him some cash.S.T. did not know Cox’s telephone number, but Cox gave her McIntyre’s telephonenumber before leaving. Ten minutes afterCox left the apartment, S.T. called McIntyre, who said that he and Cox were ina car. S.T. said that after this call,she had no further contact with Cox or McIntyre. S.T. also testified that the clothes seizedin her apartment belonged to Cox, that she did not recognize the gun found inher apartment, and that no guns other than those belonging to Cox and McIntyrewould have been in her apartment.Following the submission of S.T.’s grand jury testimony, the Staterested its case.
The jury found Cox guilty on allcounts. The district court enteredjudgment of conviction for first-degree murder and for being a felon inpossession of a firearm. Cox wassentenced to the mandatory term of life in prison for first-degree murdertogether with a 60-month concurrent sentence for the firearms offense. Coxappealed his convictions to our court. Cox argues on appeal that the Statefailed to prove first, that S.T. was unavailable; second, that he forfeited,through wrongful conduct, his right to confront S.T. at his trial; and finally,that the admission of S.T.’s prior unconfronted testimony was error warrantingreversal of his convictions.
Appellatecourts review de novo the surrounding circumstances relevant to a SixthAmendment determination. State v. Fields, 679 N.W.2d 341, 345(Minn. 2004) (citing Lilly v. Virginia,527 U.S. 116, 136-37 (1999)). TheConfrontation Clause of the Sixth Amendment to the United States Constitutionprovides that “[i]n all criminal prosecutions, the accused shall enjoy theright . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Minnesota Constitution contains nearly identicallanguage. See Minn. Const. art. I, §6.
ConfrontationRight and Forfeiture by Wrongdoing
The Confrontation Clause bars the admission of out-of-courttestimonial statements unless the witness is unavailable and the defendant hada prior opportunity to examine the witness.Crawford v. Washington, 541U.S. 36, 68 (2004). In Crawford the United States Supreme Courtsaid, “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfyconstitutional demands is the one the Constitution actually prescribes:confrontation.” Id. at 68-69. There is anarrow exception to the confrontation right, referred to as forfeiture bywrongdoing, which “extinguishes confrontation claims on essentially equitablegrounds . . . .” Id. at 62 (citing Reynolds v. UnitedStates, 98 U.S. 145, 158-59(1879)). The forfeiture-by-wrongdoing exceptionis aimed at defendants who intentionally interfere with the judicial process. The Supreme Court has said that “[W]hendefendants seek to undermine the judicial process by procuring or coercingsilence from witnesses and victims, the Sixth Amendment does not require courtsto acquiesce.” Davis v. Washington, 547 U.S. 813, 833 (2006). The Court has also said that “[w]hiledefendants have no duty to assist the State in proving their guilt, they do havethe duty to refrain from acting in ways that destroy the integrity of thecriminal-trial system.” Id.
TheSupreme Court first addressed the forfeiture-by-wrongdoing exception in Reynolds, a case about deliberate witnesstampering. The federal prosecutor presentedevidence that George Reynolds, who was charged with bigamy, had deliberatelykept his second wife away from the family home when a deputy sought to serveher with a subpoena. Reynolds, 98 U.S. at 148-50. When thedeputy twice attempted to locate Reynolds’ second wife to deliver the subpoena,Reynolds refused to disclose her location.Id. By the time of trial, the prosecution hadstill not succeeded in locating Reynolds’ second wife. Id. Because of the second wife’s unavailability,the district court allowed the prosecution to introduce testimony of Reynolds’ secondwife from Reynolds’ earlier trial. See id. The Supreme Court affirmed, holding thatadmission of the prior statements did not violate Reynolds’ right to confrontwitnesses at trial. Id. at 158. The Court heldthat when a witness is absent by the defendant’s “own wrongful procurement,”the defendant “is in no condition to assert that his constitutional rights havebeen violated” if the witness’s “evidence is supplied in some lawful way.” 158.
The Supreme Court recently analyzed theforfeiture-by-wrongdoing exception at length in Giles v. California, __ U.S. __, 128 S.Ct. 2678 (2008). Dwayne Giles was charged with first-degreemurder in the shooting death of his ex-girlfriend. __, 128 S.Ct. at 2681. At Giles’trial, the district court allowed the State to introduce statements that the victim had made to a police officerresponding to a domestic-violence report approximately three weeks before the homicide. __, 128 2681. The California Supreme Courtaffirmed Giles’ conviction, holding that the defendant had forfeited his rightto confront the victim because he had committed the murder for which he was ontrial, and it was his intentional criminal act that made the victim unavailableto testify. Id. at __, 128 S.Ct. at 2682 (citing People v. Giles, 152 P.3d 433, 435 (2007)). The Court granted Giles’ writ of certiorariand reversed, stating that the State must prove that “the defendant has in mindthe particular purpose of making the witness unavailable.” __, 128 S.Ct. at 2687-88 (citations omitted) (internal quotation marksomitted). Because the California statecourts had not considered Giles’ intent, having found intent irrelevant to theforfeiture exception, the Court remanded for further proceedings. __, 128 S.Ct. at 2693.
Applying the foregoing principles to this case, it isevident and undisputed that S.T.’s grand jury testimony was both testimonialand unconfronted. See Crawford, 541U.S. at 68 (holding that grand jurytestimony is testimonial). Therefore,this case turns on the applicability of the forfeiture-by-wrongdoingexception. As a practical matter, after Giles, the forfeiture-by-wrongdoing exception requires the State to prove(1)that the declarant-witness is unavailable, (2)that the defendantengaged in wrongful conduct, (3)that the wrongful conduct procured theunavailability of the witness and (4)that the defendant intended toprocure the unavailability of the witness.See Giles, __ U.S. __, 128 S.Ct.2687-88; id. at __, 128 S.Ct. 2694-95(Souter, J., concurring); Fields, 679N.W.2d at 347; State v. Wright (Wright III), 726N.W.2d 464, 480 (Minn. 2007).[1] We have assumed that the preponderance of theevidence standard of proof applies to the State’s burden of proof. WrightIII, 726N.W.2d at 479 n.7.
Unavailability of Witness
As stated above, the State must prove that thedeclarant-witness is unavailable to avail itself of theforfeiture-by-wrongdoing exception. Awitness is not “unavailable” for Confrontation Clause purposes “unless theprosecutorial authorities have made a good-faith effort to obtain his presenceat trial.” Barber v. Page,390 U.S. 719, 724-725(1968).The Supreme Court has said that “[t]he lengths to which the prosecutionmust go to produce a witness . . . is a question of reasonableness.” Ohio v.Roberts,448 U.S. 56, 74 (1980) (citation omitted) (internal quotationmarks omitted), abrogated on other groundsby Crawford, 541 U.S. at 68. The Court went on to sound a note of cautionby saying “[b]ut if there is a possibility, albeit remote, that affirmativemeasures might produce the declarant, the obligation of good faith maydemand their effectuation.” Roberts,448 U.S. at 74. The State “bears the burden of establishingthis predicate.” Id. at 75.
Here, while S.T. had concerns abouttestifying, she did respond to the State’s subpoena to testify at Cox’s trial. At the evidentiary hearing conducted in aclosed courtroom, S.T. explained her hesitation about testifying. When asked if she would testify under courtorder, she said, “I don’t know.” But theState never actually called S.T. as a witness at Cox’s trial, nor did it establishthat S.T. would refuse to testify if she were called as a witness.
Based on the record in thiscase, we conclude that the State failed to establish by a preponderance of theevidence that S.T. was unavailable to testify at Cox’s trial for purposes ofthe Confrontation Clause. Because theState did not establish the unavailability predicate of the forfeiture-of-confrontation-rightstest, the forfeiture-by-wrongdoing exception does not apply and we thereforeconclude that the admission of S.T.’s grand jury testimony violated Cox’srights under the Confrontation Clause. Consequently, we hold that the district courterred when it admitted S.T.’s testimony.
We have held that Confrontation Clause violations aresubject to a constitutional harmless-error-impact analysis. State v.Caulfield, 722 N.W.2d 304, 314 (Minn. 2006). For an error of constitutional dimension tobe deemed harmless, “it must be harmless beyond a reasonable doubt.” Statev. Courtney, 696 N.W.2d 73, 79 (Minn. 2005) (citing Chapman v. California, 386 U.S. 19, 24 (1967)). We have said “[a]n error is harmless beyond areasonable doubt if the guilty verdict actually rendered was ‘surelyunattributable’ to the error.” Courtney, 696 N.W.2d at 80 (quoting State v. Juarez, 572 N.W.2d 286, 292(Minn. 1997)). The State does not claimthat admission of S.T.’s unconfronted grand jury testimony was harmless; andour independent review of the record satisfies us that the error was notharmless beyond a reasonable doubt. Therefore,we hold that this error was not harmless.Accordingly, Cox’s convictions must be reversed and the matter remandedfor a new trial.
By a pro se supplemental brief, Coxasserts that the State’s evidence was legally insufficient to support the jury’sverdict of aiding and abetting felony murder, as required by Minn. Stat. §§609.185(a)(3) and 609.05. Specifically, Cox claims that evidence ofthe underlying felony was lacking.The Double Jeopardy Clause precludes retrial where a conviction is setaside because the evidence supporting it is legally insufficient. Tibbsv. Florida, 457 U.S. 31, 40-41 (1982).Legally insufficient “‘means that the government’s case was solacking that it should not have even been submitted to the jury.’ ” Id. at41 (emphasis omitted) (quoting Burks v.United States, 437 U.S. 1, 16 (1978)).A reviewing court considers all of the evidence admitted by the trialcourt, whether erroneously admitted or not, in deciding whether retrial ispermissible under the Double Jeopardy Clause. Lockhart v. Nelson, 488U.S. 33, 34,41-42 (1988). Here, in view of all theevidence presented by the State, including erroneously-admitted evidence, weconclude that the evidence implicating Cox in an attempted robbery of Moody waslegally sufficient, and therefore the Double Jeopardy Clause does not precludea retrial.
Reversed and remanded for a new trial.

[1] See also Tom Lininger, The Sound of Silence: Holding BatterersAccountable for Silencing Their Victims, 87 Tex. L. Rev. 857, 893 (2009)(noting that after Giles, courts need to address questions as towitness unavailability, wrongful act, causation and specific intent to silencethe witness).