State v. Moua Her is the case blog of the day. This is an older case that has come back for
some revisions to case law after Giles v. California. Mr. Her was originally charged with First
Degree Domestic Abuse, Murder. After a
jury trial in
guilty and sentenced to life in prison.
The problem arose out of the fact that Ms. Vang (Moua Her’s wife) had
previously made statements to a police officer. During the jury trial those statements were
admitted against Mr. Her on the grounds that Mr. Her had waived his right to
confront Ms. Vang by killing her. (Anyone
else see the Catch 22 with that statement?).
Thus the Minnesota Supreme Court rejected Mr. Her’s Sixth Amendment
Confrontation Clause appeal and held that the forfeiture-by-wrongdoing doctrine
The problem was further complicated when the United States Supreme Court
decided Giles v. California. In
Giles, the Supreme Court held that 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
before Giles, the State only needed to show that the defendant intended
to kill the victim, not that the intent was to keep them from testifying.
Because the Minnesota Supreme Court did not make a ruling on whether Mr. Her
intended to prevent Ms. Vang from testifying (in fact they originally held it
didn’t matter based on
precedent), the question of whether Mr. Her’s Sixth Amendment rights were
violated is still in question.
The end result is that State v. Moua Her has been remanded to the
District Court level for hearings to determine if Mr. Her’s Sixth Amendment
rights were violated in light of Giles.
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.
Landon J. Ascheman, Esq.
P.S. Have an attorney in your phone? Add us now 612-217-0077 – While we
hope you never need us, we’re here if you do.
IN SUPREME COURT
Dissenting, Page and Anderson, Paul H., JJ.
Office of Appellate Courts
Lori Swanson, Attorney
Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St.
Paul, Minnesota, for respondent.
Senecal-Hill, Assistant State Public Defender,
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
O P I N I O N
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),
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.
and held that because Her intentionally killed Vang, the
forfeiture-by-wrongdoing doctrine applied and estopped Her from raising his
Confrontation Clause rights.
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
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
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
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
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
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,
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.
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.
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
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.
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
Approximately one month
after we decided Her I, the U.S.
Supreme Court decided Giles v. California,
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
Court for our renewed consideration of Her’s Confrontation Clause claim in
light of Giles.
begin our analysis with a discussion of Giles. In Giles,
the State of
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,
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.
at 2682. The California Supreme Court
affirmed on the same grounds.
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.
defendant’s intent in killing the victim, the U.S. Supreme Court vacated the
consider evidence of the defendant’s intent.
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.
Her argues that remand to
the district court is not necessary because Giles
did not change the law. Specifically, Her contends that “federal and
the [S]tate on notice” of its obligation to prove that a desire to silence Vang
motivated Her to murder Vang. We
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
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. 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 (
in the district court to argue that Her forfeited his right to confront Vang. In
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.
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
Her argues that the
State should not have limited its evidence on the forfeiture issue based on
forfeiture decisions. But we rejected the
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
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). At the time the parties litigated the
forfeiture question in the district court,
on the application of the forfeiture-by-wrongdoing doctrine in a case where the
murder victim was also the unavailable witness.
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
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
our opinion. Evidence of this type of
threat would be relevant evidence under the standard announced in Giles.
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
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
In Her I, we adhered to
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
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
at 2684. This
is a change in the law from
law regarding forfeiture in
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).
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. 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
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
(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.
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 (
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.
Moreover, a remand
comports with the Supreme Court’s treatment of the forfeiture question in Giles. See 128
not consider Giles’ intent, which they found irrelevant under their
interpretation of the forfeiture doctrine. They are free to consider intent on
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
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.”
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.”).
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.
D I S S E N T
PAGE, Justice (dissenting).
I respectfully dissent. Our court rests its remand decision on the
false conclusion that Giles v. California,
law changing the requirements of the forfeiture-by-wrongdoing doctrine. Based on that false conclusion, our court
concludes that remand is necessary to give the State an opportunity to develop
a factual record regarding Her’s intent to procure Vang’s unavailability. Such a reading of Giles is without legal support and is absurd. The stark reality, which the court would like
to ignore, is that Giles was not an
announcement of a new rule or principle of law but
rather the rejection of various courts’ attempts to create a murder exception,
lacking any basis in common law, to the forfeiture-by-wrongdoing doctrine. Any question on this point was answered by
decline to approve an exception to the Confrontation Clause unheard of at the
time of the founding or for 200 years thereafter. The judgment of the California Supreme Court
is vacated.” Giles, 128
To be clear, in Giles, the United States Supreme Court
noted that since the 1600s the forfeiture-by-wrongdoing doctrine has permitted
“the introduction of statements of a witness who was ‘detained’ or ‘kept away’
by the ‘means or procurement’ of the defendant.”
2683. The Court further noted that
“[t]he manner in which the rule [has been] applied makes plain that
unconfronted testimony would not be
admitted without a showing that the defendant intended to prevent a witness
from testifying.” Giles,
the evidence suggested that the defendant had caused a person to be absent, but
had not done so to prevent the person from testifying, the testimony was
excluded unless another exception applied.
sum, our interpretation of the common-law forfeiture rule is supported by (1)
the most natural reading of the language used at common law; (2) the absence of
common-law cases admitting prior
statements on a forfeiture theory when the defendant had not engaged in conduct
designed to prevent a witness from testifying; (3) the common law’s uniform
exclusion of unconfronted inculpatory testimony by murder victims (except
testimony given with awareness of impending death) in the innumerable cases in
which the defendant was on trial for killing the victim, but was not shown to
have done so for the purpose of preventing testimony; (4) a subsequent history
in which the dissent’s broad forfeiture theory has not been applied. The first
two and the last are highly persuasive; the third is in our view conclusive.
Notwithstanding the fact
that for over 400 years the forfeiture-by-wrongdoing doctrine has required a
showing that the defendant intended to procure the witness’s absence for the
purpose of preventing the witness from testifying, our court still insists that
at the time of State v. Her (Her I), 750 N.W.2d 258 (2008), the
“forfeiture-by-wrongdoing doctrine did not depend on a showing that desire to
silence the victim motivated the killing in cases where the unavailable witness
was also the murder victim.” That
insistence cannot credibly be maintained.
The Supreme Court is charged with the task of interpreting the Federal
Constitution and our court’s misapplication of the forfeiture-by-wrongdoing
doctrine in one case, State v. Langley, 354 N.W.2d 389 (Minn. 1984),
could not and did not create a different constitutional standard for Minnesota
as opposed to the rest of country. See Webster v. Reprod. Health Servs.,
490, 518 (1989) (holding that apart from a constitutional amendment, the United
States Supreme Court “is the only body able to make needed changes” to the
in its decision today, our court still fails to acknowledge that
was simply a perversion of the forfeiture doctrine crafted for unknown and
unexplained reasons to make an end run around the Confrontation Clause. While our
decision speaks for itself, that is all it does. As noted in my concurrence in Her I, in the years between Langley and Her I, our court did not cite or otherwise follow
approach. See Her I, 750 N.W.2d at 298-99 (Page, J., concurring). Instead, every case before
with the notable exception of Her I,
followed the approach reaffirmed by the Supreme Court in Giles.
be said to be anything other than an anomalous outlier. Our court’s reliance on Langley in Her I for the
existence of an unwritten “murder exception” to the Confrontation Clause was
absurd then, and our court’s insistence that until Giles Minnesota’s Confrontation Clause standard was somehow
different than the rest of the country is equally absurd now. Having failed to raise or establish at trial
Her’s intent to prevent Vang from being a witness at trial, the State is not
entitled to a remand for a second bite at the apple.
ANDERSON, Paul H., Justice (dissenting).
join in the dissent of Justice Page.
D I S S E N T
ANDERSON, Paul H., Justice (dissenting).
join in the dissent of Justice Page, but I write separately because I see the
point of disagreement between the majority and the dissent in a slightly
different way. At its core, the
disagreement between the majority and the dissent is over what it means to
announce a new rule or principle of law.
The majority takes the position that when the United States Supreme
Court interprets the United States Constitution to grant broader protections
than we have granted the Supreme Court’s interpretation represents a new
principle of law. I disagree. I would characterize our interpretation of
the U.S. Constitution in State v.
Langley, 354 N.W.2d 389 (
having been a misinterpretation, and characterize the Supreme Court’s
interpretation in Giles v. California,
that misinterpretation, not as the announcement of a new principle of law. The Supreme Court is, after all, the final
interpreter of the U.S. Constitution.
That said, I would not go as far as Justice Page to call the majority’s
characterization absurd, nor would I characterize our misinterpretation of the
U.S. Constitution in
Under this statute, it is
first-degree murder to “cause the death of a human while committing domestic
abuse, when the perpetrator has engaged in a past pattern of domestic
domestic assault charge was not dropped until December 2005.
The State argues that we need
not reach the issue the Supreme Court remanded to us because any error the
district court made in admitting Officer Baumhofer’s testimony was
harmless. In essence, the State contends
that even without Vang’s allegation that Her abused her at the
as to the element of past pattern.
Because the State did not argue that the admission of Vang’s allegation
was harmless during the first appeal, we decline to reach this issue here. See Her
I, 750 N.W.2d at 269 n.10. The State
also requests that we remand to the district court the question of whether
Vang’s statements to Baumhofer were testimonial in light of
this issue during the first appeal.
Accordingly, we decline to consider this issue now and deny this portion
of the State’s motion for remand.
Her made this argument
notwithstanding the concession in his brief that Giles “clarified the law on the forfeiture-by-wrongdoing exception
as it relates to a defendant’s right to confrontation.”
noted that the rule we followed in Minnesota in murder cases was the same as
that followed in other states, including California, and we specifically
referred to the California Supreme Court’s decision in Giles. Her I, 750 N.W.2d at 271 (citing People v. Giles, 152 P.3d
433, 443 (
Her also cites dicta from State
v. Wright (Wright I) for the
proposition that intent to silence a witness is required for a court to find
forfeiture. See 701 N.W.2d 802, 815-16 (
remanded for reconsideration in light of
547 U.S. 813 (2006). Like all of the
other cases upon which Her relies, Wright
I is inapposite to the issue because it is not a murder case in which the
unavailable witness is also the murder victim, but a witness-tampering case
where the defendant was facing charges of assault and illegal possession of a
The State does not argue that we
can rule as a matter of law under Giles
that the facts already established in Her
I are sufficient to find
forfeiture-by-wrongdoing and thus, we do not address that question.
Although we ruled as a matter of
law in Her I that
forfeiture-by-wrongdoing applied, this was possible because, under the old
standard, once the prosecution had established by a preponderance of the
evidence that the defendant was responsible for the victim’s death, the
out-of-court statements of the victim could be admitted under the
forfeiture-by-wrongdoing exception. See Her I, 750 N.W.2d at 274-75. No
factually intensive findings regarding motive were necessary. The rule announced by the Giles court requires additional factual
findings not made by the district court.
The State also argues that full
confrontation rights do not attach at a preliminary evidentiary hearing and
therefore, that, on remand, the State should be able to introduce unconfronted
testimonial statements that might not be admissible at trial in support of its
argument that Her forfeited his confrontation claim. In support of this argument, the State cites
three recent state supreme court decisions that have held that Crawford does not apply to pretrial
v. Harris, 998 So.2d 55, 56 (
State v. Rivera, 192 P.3d 1213, 1218
(N.M. 2008); State v. Woinarowicz,
720 N.W.2d 635, 641 (N.D. 2006). Her
does not address this issue in his brief.
For the same reason discussed in response to the issue the State raises
about motive, we likewise decline to reach this issue at this stage of the
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). The State waives the right to raise an issue
by failing to take advantage of an opportunity to build a factual record when
it has ample opportunity to do so.
v. Garza, 632 N.W.2d 633, 637 (
2001). Having had the opportunity at
trial in this case and having failed to raise the forfeiture issue then, the
issue has been waived.
have held that a Supreme Court holding constitutes a new rule of law “if it
‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal
Government,’ or was not ‘dictated by
precedent existing at the time the defendant’s conviction became final.’ ” O’Meara
v. State, 679 N.W.2d 334, 339 (
abrogation recognized by (quoting Graham
v. Collins, 506
461, 467 (1993)). The Court’s holding in
Giles did not “break new ground” or
“impose a new obligation on the state, or federal government” and was
“dictated by precedent existing at the time the defendants conviction became
final.” See id.
witness having been “detained by the means or procurement of the prisoner,”
provided a basis to read testimony previously given at a coroner’s
inquest. Lord Morley’s Case, 6 How. St. Tr. 769, 770-71 (H.L. 1666); Queen v. Scaife, 117 Q.B. 238, 242, 117
1273 (K.B. 1851) (“kept away”); Harrison’s
Case, 12 How. St. Tr. 833, 851 (H.L. 1692) (“made him keep away”); see also Motes v. United States, 178 U.S. 458, 471-74 (1900) (holding that
it would not be “consistent with the [Confrontation Clause] to permit the
deposition or statement of an absent witness (taken at an examining trial) to
be read at the final trial, when it does not appear that the witness was absent
by the suggestion, connivance or procurement of the accused.”); Reynolds v. United States, 98 U.S. 145,
158 (1879) (holding that when a witness is absent by the defendant’s “wrongful
procurement,” the defendant “is in no condition to assert that his
constitutional rights have been violated” if “their evidence is supplied in
some lawful way.”).
Federal Rules of Evidence provide further evidence, if any is needed, that Giles was simply a reaffirmation of the
common law forfeiture-by-wrongdoing doctrine.
In 1997, the Supreme Court approved a Federal Rule of Evidence, entitled
“Forfeiture by wrongdoing,” which applies only when the defendant “engaged or
acquiesced in wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness.”
Fed. R. Evid. 804(b)(6). The Court
described 804(b)(6) as a rule “which codifies the forfeiture doctrine.”
 See, e.g., Wright II, 726 N.W.2d at 475-76; State v. Fields, 679 N.W.2d 341, 347 (Minn. 2004); State v. Byers, 570 N.W.2d 487, 494-95 (Minn. 1997); 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, 248 (Minn.
2006); State v. Olson, 291 N.W.2d
203, 206-07 (Minn. 1980); State v. Black,
291 N.W.3d 208, 213-14 (Minn. 1980), abrogation
on other grounds recognized by State v. Jones, 556 N.W.2d 903, 909 (Minn.
1996). Interestingly, in Her I, our court recognized that with
the exception of murder cases, application of the forfeiture-by-wrongdoing
required a showing that the defendant intended to procure the absence of the
witness. 750 N.W.2d at 270 (holding that
Wright II and similar cases
are not controlling because “imposing the additional motive element [in murder
cases] is inconsistent with the equitable notions underlying the