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STATE OF MINNESOTA

IN SUPREME COURT

A06-1743

________________________

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.