Case Blog – State v. Moua Her – MN SCt

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STATE OF MINNESOTA

 

IN SUPREME COURT

 

A06-1743

 

 

Ramsey County	Gildea, J.
	Dissenting, Page and Anderson, Paul H., JJ.
State of Minnesota,
Respondent,
vs.	Filed:  May 6, 2010
	Office of Appellate Courts
Moua Her,
Appellant.

 

________________________

 

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

 

Susan Gaertner,
Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St.
Paul, Minnesota, for respondent.  

 

Suzanne M.
Senecal-Hill, Assistant State Public Defender, Minneapolis, Minnesota,
for appellant.

________________________

 

S Y L L A B U S

Because Giles v. California, 128 S. Ct. 2678
(2008), changed the law in Minnesota regarding the standard for application of
the forfeiture-by-wrongdoing doctrine in a murder case, remand to the district
court for an evidentiary hearing is required to assess whether appellant
forfeited his Confrontation Clause claim. 

            Remanded for further proceedings consistent with this
opinion.

 

O P I N I O N

GILDEA, Justice.

            A Ramsey County
jury found appellant Moua Her guilty of
murdering his estranged wife Sheng Vang. 
The district court convicted Her of first-degree domestic abuse murder under
Minn. Stat. § 609.185(a)(6) (2008),[1]
and imposed a life sentence.  Her appealed
his conviction arguing, among other things, that his
rights under the Confrontation Clause of the Sixth Amendment were violated when
the district court allowed the State to introduce evidence of Vang’s March 23,
2004, statements to a police officer.  See State v. Moua Her (Her I), 750 N.W.2d 258, 264 (2008).  We affirmed Her’s conviction
and held that because Her intentionally killed Vang, the
forfeiture-by-wrongdoing doctrine applied and estopped Her from raising his
Confrontation Clause rights.  Id. at 274-75.  Her petitioned for a writ of certiorari in the
U.S. Supreme Court, and the Supreme Court vacated and remanded for reconsideration
in light of Giles v. California, 128
S. Ct. 2678 (2008). 

We set out the facts surrounding the murder in detail in
the opinion in Her I.  We discuss in this opinion those facts
relevant to the remand from the Supreme Court. 
Those facts relate to the State’s evidence on the element of “past
pattern of domestic abuse.”  See Minn. Stat. § 609.185(a)(6).  In seeking to prove
that Her had a “past pattern of domestic abuse,” the State introduced
evidence of four instances where Her had committed acts of physical abuse
against Vang. Her I, 750 N.W.2d at
278.  Vang
reported the first three instances of abuse at a family meeting in March
2001.  See id. at 278.  At the
meeting, Vang alleged Her had hit and kicked her, electrocuted her, and poured
curry juice over her clothes.  See id. 

The other incident
the State used as evidence of a past pattern of abuse was a March 23, 2004,
altercation that took place between Her and Vang outside a restaurant located
on University Avenue
in Saint Paul.  Saint Paul police officer Amy Baumhofer was called to the restaurant
around 6:00 p.m. and met Vang there.  Officer
Baumhofer described Vang’s condition: “She was very upset, she was crying, she
was shaking, and she had a hard time completing sentences.  She was very, very upset and had to pause
between words to get . . . herself composed enough to get the words out so we
could understand what had happened.”  Officer
Baumhofer observed “fresh” injury marks under Vang’s chin and on her clavicle
and stomach. 

Vang told Officer Baumhofer that Her had assaulted her just
before the police arrived.  Vang said
that she met Her at the restaurant to talk.  During their conversation, Her “pulled [her]
into the car by her hair and, as she fell into the passenger seat, her husband
had hit her with what she thought was a metal nightstick several times.”  As he hit her, Vang said that she tried to
get away.  She tried to leave the car,
but it was locked.  As Her began to back-up
the car, Vang was able to unlock the door, leave, and call the police.  After taking Vang’s statement, Officer
Baumhofer issued a probable cause pick-up for Her for domestic assault and
called for a camera car to photograph Vang’s injuries.  The record does not establish which of these
two things Baumhofer did first. 

As a result of Vang’s report
about the incident at the St. Paul
restaurant, the State charged Her with domestic assault on March 24, 2004.  That same day, Vang obtained a No Contact Order against
Her.  In May, Her failed to appear for a
hearing on the domestic assault charge, and a bench warrant was issued for his
arrest.  The domestic assault charge was
still pending at the time of Vang’s murder,[2]
and the warrant and the No Contact Order were still in effect.

Her’s jury trial for
Vang’s murder took place June 5-16, 2006. 
Following the trial, the jury found Her not guilty of first-degree
premeditated murder, but guilty of first-degree domestic abuse murder in
violation of Minn. Stat. § 609.185(a)(6) and three counts of second-degree
murder.  The district court convicted Her
of first-degree domestic abuse murder and imposed a life sentence.

            Her
appealed his conviction, arguing that his Sixth Amendment Confrontation Clause
rights were violated when the district court permitted Officer Baumhofer to
repeat the statements Vang made to her on March 23, 2004, after the incident at
the St. Paul restaurant.  We rejected
Her’s Confrontation Clause challenge in Her
I, 750 N.W.2d at 264-75.  As a
preliminary matter, we held that the State had failed to meet its burden to
show that Vang’s statements to Baumhofer were nontestimonial.  Id. at
269.  In analyzing this question, we
applied the newly promulgated “primary purpose” test set forth by the U.S.
Supreme Court in Davis v. Washington,
547 U.S. 813 (2006), which was decided days after Her’s trial ended.  See Her
I, 750 N.W.2d at 269.  We next considered the
forfeiture-by-wrongdoing doctrine.  Her
argued that the doctrine should not apply because the State did not demonstrate
that his motive for murdering Vang was to prevent Vang from testifying against
him.  Id. at 269-70.  Relying on our precedent, and the policies
underlying the Confrontation Clause, we held that the State did not have to
prove that the motive for Vang’s murder was Her’s desire to silence her.  Id. at
270-74.  Rather, we held that the State’s
demonstration that Her was responsible for Vang’s absence from the trial was
sufficient to sustain application of the forfeiture-by-wrongdoing
doctrine.  Id.
at 274-75. 

Approximately one month
after we decided Her I, the U.S.
Supreme Court decided Giles v. California,
128 S. Ct. 2678 (2008), which also addressed
application of the forfeiture-by-wrongdoing doctrine in the context of a murder
case.  The Supreme Court held that to
invoke the forfeiture-by-wrongdoing doctrine, the State must show, not only
that the defendant was responsible for the killing, but also that he committed
the killing with the intent of preventing the victim from testifying against
the defendant.  Id. at 2684.  This case now returns to us from the Supreme
Court for our renewed consideration of Her’s Confrontation Clause claim in
light of Giles.[3]

                                                                                                                                                                                      
I.           
 

            We
begin our analysis with a discussion of Giles.  In Giles,
the State of California
charged the defendant in connection with the murder of his former
girlfriend.  The State sought to
introduce statements that the victim made to the police three weeks before the murder
in which she told the police the defendant had assaulted her and had threatened
to kill her if he caught her cheating on him.  Giles,
128 S. Ct. at 2681-82.  The California Court of Appeals upheld the
admission of this evidence, concluding that the defendant had forfeited his
confrontation rights because he had committed the intentional killing that rendered
the victim unavailable to testify.  Id.
at 2682.  The California Supreme Court
affirmed on the same grounds.  Id.  

The U.S. Supreme
Court overturned the California Supreme Court decision.  The Court held that the
forfeiture-by-wrongdoing doctrine permits unconfronted testimony of a murder
victim into evidence only if there is a showing that the defendant killed the
declarant with the intent of preventing the declarant from testifying.  Id. at 2684.  Because the California courts failed to inquire into the
defendant’s intent in killing the victim, the U.S. Supreme Court vacated the
decision.  Id. at 2693.  The Supreme Court remanded the case to the California courts to
consider evidence of the defendant’s intent.  Id.

            The State argues that a remand for an evidentiary hearing
on the issue of Her’s intent is necessary to reach a determination of whether
Her forfeited his confrontation rights under Giles.  Her objects to a
remand for two reasons.  First, Her
argues that a remand is unnecessary because Giles
did not announce a new standard.  Second,
Her argues that even if Giles did
change the law regarding application of the forfeiture-by-wrongdoing doctrine,
the evidence in the record is sufficient for this court to decide as a matter
of law that Her did not forfeit his right to confront Vang.  We consider each of Her’s arguments in turn.

A.

Her argues that remand to
the district court is not necessary because Giles
did not change the law.[4]  Specifically, Her contends that “federal and Minnesota caselaw put
the [S]tate on notice” of its obligation to prove that a desire to silence Vang
motivated Her to murder Vang.  We
disagree. 

A remand to allow the State
an opportunity to develop the factual record on an issue is appropriate when,
at the time of trial, the law did not require the State to establish a factual record
on the issue in question.  State v. Wright (Wright II), 726 N.W.2d 464, 482 (2007).  As we explained in Her I, under the law in Minnesota
and elsewhere at the time of Her’s trial, the forfeiture-by-wrongdoing doctrine
did not depend on a showing that a desire to silence the victim motivated the
killing in cases where the unavailable witness was also the murder victim.[5]  See Her
I, 750 N.W.2d at 270-74.

We applied the forfeiture-by-wrongdoing doctrine in
this manner in State v. Langley, 354
N.W.2d 389 (Minn. 1984), and the State relied
on Langley
in the district court to argue that Her forfeited his right to confront Vang.  In Langley, a jury
found the defendant guilty of drowning his wife in the bathtub.  354 N.W.2d at 391.  At trial, the State introduced a variety of
hearsay statements of the wife alleging abuse by the defendant and the
defendant objected on Confrontation Clause grounds.  Id. at 396. 
We held that the statements were properly admitted, explaining that the
defendant “cannot invoke his sixth amendment rights as a shield to protect him
from the ramifications of having murdered his wife . . . because the evidence
is strong that he has been the instrument of the denial of his own right of
cross-examination.”  Id. at 400. 

 
          Her argues that the
State should not have limited its evidence on the forfeiture issue based on Langley.  According to Her, the State’s reliance on Langley was
misplaced because Langley was an “anomaly” among our
forfeiture decisions.  But we rejected the
argument that Langley was out of step with our
forfeiture law in Her I when this
argument was offered by the concurrence. 
Her I, 750 N.W.2d at 299
(Page, J., concurring) (arguing that “Langley
is an anomalous outlier” and citing State v. Fields, 679 N.W.2d
341, 347 (Minn. 2004); State v. Peirce,
364 N.W.2d 801, 807-08 (Minn. 1985);
State v. Hansen, 312 N.W.2d 96, 103-105 (1981), abrogation on other grounds recognized by State v. Bobadilla, 709
N.W.2d 243 (Minn. 2006); State v. Olson,
291 N.W.2d 203, 207 (Minn. 1980); State
v. Black, 291 N.W.2d 208, 214 (Minn. 1980), abrogation on other grounds recognized by State v. Jones, 556
N.W.2d 903 (Minn. 1996)).  Her
cites these same cases in advancing his argument that Langley
did not govern what the State needed to prove on the forfeiture question.  We addressed these
cases in Her I and found them inapposite
because they do not address application of the forfeiture-by-wrongdoing
doctrine in the context of a murder case where the out of court declarant was
also the murder victim.  Her I, 750 N.W.2d at 270 & n.11
(distinguishing cases cited by Her and the concurrence from murder cases for
purposes of forfeiture analysis).[6]  At the time the parties litigated the
forfeiture question in the district court, Langley was controlling
authority in Minnesota
on the application of the forfeiture-by-wrongdoing doctrine in a case where the
murder victim was also the unavailable witness. 

In Langley,
we did not require any showing that the defendant
intended to prevent his wife from testifying against him.  354 N.W.2d at 400.  Indeed, as Her pointed out at oral argument,
there was evidence in Langley that, approximately four years
before the murder, the defendant had threatened to
murder the victim if she reported his abuse to the police.  The State referenced this threat in
its brief in Langley, but we did not even discuss it in
our opinion.  Evidence of this type of
threat would be relevant evidence under the standard announced in Giles. 
128 S. Ct. at 2693 (noting that “threats
of abuse, intended to dissuade the victim from resorting to outside help would
be highly relevant to this inquiry”). 
The absence of any mention of the threat in our opinion, however,
provides further support for our conclusion in Her I that under Minnesota
law, application of the forfeiture-by-wrongdoing doctrine did not depend on an
assessment of the defendant’s motive for the murder.  Langley,
354 N.W.2d at 400; Her I, 750 N.W.2d
at 274.

In Her I, we adhered to Langley in
concluding that Her forfeited his confrontation claim.  Her
I, 750 N.W.2d at 274-75.  Our precedent required a showing of intent before
the forfeiture-by-wrongdoing doctrine applied in the murder context.  But unlike Giles, the relevant intent under our precedent, and that of other
states including California,
was the defendant’s intent to kill the victim. 
See id. at 269-74.  Giles
requires a different type of intent.  Giles requires not only that the
defendant intend to kill the victim, but also that the defendant killed the
victim with the intent of preventing the victim from testifying.  Giles, 128 S. Ct.
at 2684.  This
is a change in the law from Langley, and we therefore reject Her’s argument that Giles did not sufficiently change the
law regarding forfeiture in Minnesota
to warrant a remand.  Because our
law did not require an examination of Her’s motive for killing Vang, the State
cannot be said to have had the opportunity to develop a factual record regarding
Her’s intent when it was litigating the applicability of the forfeiture-by-wrongdoing
doctrine at the district court.  See Wright II, 726 N.W.2d at 482
(concluding that, in light of the intervening decisions in Crawford and Davis, the
State had not waived the opportunity to develop a further factual record on the
issue of forfeiture).

B.

We turn next to Her’s alternative argument that
even if Giles changed the law, the
record establishes that the State cannot meet the standard articulated in Giles, and that therefore a remand is
not necessary.[7]  After Giles, the forfeiture-by-wrongdoing doctrine allows the
introduction of a murder victim’s unconfronted testimonial statements if the
victim was murdered to prevent the victim from being a witness.  128 S. Ct.
at 2684.  We
have recognized that issues of intent, such as the Giles intent-to-silence requirement, are inherently fact-driven. See, e.g.,
State v. Fratzke, 354 N.W.2d 402, 409
(Minn. 1984)
(stating that “intent is primarily a question of fact”).  The district court is the best place in which
to undertake the inherently fact-driven intent analysis that Giles requires.[8] 

But Her contends
that we need not remand the question of his intent to the district court.  Specifically, Her argues that the record
establishes that he did not kill Vang because he wanted to keep her from being
a witness against him.  For example, Her notes that the State argued
at trial that Her murdered Vang because “he didn’t want to live his life
without her.”  Her also argues that the
additional evidence the State seeks to offer on remand, including evidence
relating to a domestic assault charge pending at the time of Vang’s murder and
Vang’s order for protection, is insufficient as a matter of law to satisfy Giles.  

The State responds that remand is necessary and argues that an intent-to-silence
does not have to be the sole motive for the murder.  The State relies on federal appellate
decisions interpreting Federal Rule of Evidence 804(b)(6) (2008), which have held that to show forfeiture under Rule
804(b)(6), the State must show that the defendant was motivated only in part to silence the victim.  See,
e.g., United States v. Gray, 405
F.3d 227, 242 (4th Cir. 2005) (“Although the Rule requires that the
wrongdoing was intended to render the declarant unavailable as a
witness, we have held that a defendant need only intend ‘in part’ to procure
the declarant’s unavailability.”); United States v. Dhinsa, 243
F.3d 635, 654 (2d Cir. 2001) (“The government need not, however, show
that the defendant’s sole motivation was to procure the declarant’s absence;
rather, it need only show that the defendant ‘was motivated in part by a
desire to silence the witness.’ ” (internal citation omitted)); United States v. Houlihan, 92 F.3d 1271,
1279 (1st Cir. 1996) (“Moreover, it is sufficient in this regard to show that the
evildoer was motivated in part by a desire to silence the witness;
the intent to deprive the prosecution of testimony need not be the actor’s sole
motivation.”).  Her does not
discuss these cases in his brief nor does he directly respond to the State’s
argument that an intent-to-silence need not be the sole motive for the
murder.  But implicit in Her’s argument—that
the State’s evidence as to his intent is insufficient as a matter of law—is the
suggestion that Giles requires that
an intent-to-silence be the sole motive for the murder. 

  Because the State has not yet developed the factual
record under the Giles rule, we
conclude it would be premature for us to determine, at this stage, whether an
intent-to-silence must be the sole motive for Vang’s murder.  See In
re McCaskill, 603 N.W.2d 326, 327 (Minn.
1999) (noting that appellate courts “decide only actual controversies and avoid
advisory opinions”).  This question will
be better resolved with the benefit of a full evidentiary record developed on
remand on the issue of Her’s intent.[9] 

Moreover, a remand
comports with the Supreme Court’s treatment of the forfeiture question in Giles.  See 128
S. Ct. at 2680 (“Here, the state courts did
not consider Giles’ intent, which they found irrelevant under their
interpretation of the forfeiture doctrine. They are free to consider intent on
remand.”).  Remand
is also consistent with our precedent.  See, e.g., State v. Warsame, 735 N.W.2d 684, 696-97 (Minn. 2007); Wright II, 726 N.W.2d at 482 (“Given
the circumstances of this case and in particular, the state of the law
interpreting the Confrontation Clause at the time of Wright’s trial, we hold
that the state has not waived the opportunity to present additional evidence to
further develop a factual record on forfeiture.”);  State v. Weekes, 250
N.W.2d 590, 594–95 (Minn. 1977) (remanding to district court for new
evidentiary hearings in light of a U.S. Supreme Court decision changing the rules
for finding attenuation of a Fourth Amendment violation).

The district court should resolve in the first instance whether
the evidence the State proffers is insufficient, as Her contends, to satisfy
the Giles standard.  The Supreme Court’s emphasis on the relevance
of the domestic violence context to the intent requirement should be helpful in
making this determination.  Giles, 128 S. Ct. at 2692-93.  As the Supreme
Court acknowledged in Giles, the
context of domestic violence is relevant to the forfeiture question because
“[a]cts of domestic violence often are intended to dissuade a victim
from resorting to outside help, and include conduct designed to prevent
testimony to police officers or cooperation in criminal prosecutions.”  Id. at
2693.  Thus, “[e]arlier abuse, or threats
of abuse, intended to dissuade the victim from resorting to outside help” could
be helpful to the question of forfeiture, “as would evidence of ongoing
criminal proceedings at which the victim would have been expected to testify.”  Id.;
see also State
v. McLaughlin, 265 S.W.3d 257, 272, 273
n.10 (Mo. 2008) (noting that Giles
“clarified” “[t]he parameters of the forfeiture by wrongdoing doctrine” and
upholding trial court’s determination that defendant forfeited his right to
confront the murder victim based on the defendant’s prior acts of domestic
violence committed “during the time that [the victim] was attempting to break
from the relationship and had filed for orders of protection and sought
protection from the police so that she could safely go from work to home.”).
    

            On
remand, the State should be given the opportunity to establish, by a
preponderance of the evidence, that Her forfeited his confrontation claim by killing
Vang with the intent to prevent her from testifying against him.  If the State is able to prove that forfeiture
occurred, the district court shall enter an order denying a new trial.  If the State is unable to prove that
forfeiture occurred, the district court shall reverse the conviction and order
a new trial that does not include Vang’s statements to Officer Baumhofer.

            Remanded for further
proceedings consistent with this opinion.

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