State v. Davis , 2022 ND 30 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 30State of North Dakota, Plaintiff and Appellee
v.
Sheldon George Davis, Defendant and Appellant
No. 20210152
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Tristan J. Van de Streek, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by McEvers, Justice.
Megan J. K. Essig (argued), Assistant State’s Attorney, Carmell F. Mattison
(on brief), Assistant State’s Attorney, Grand Forks, ND, for plaintiff and
appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Davis
No. 20210152
McEvers, Justice.
[¶1] Sheldon George Davis appeals from an amended criminal judgment
entered after a jury found him guilty of intentional or knowing murder,
endangering by fire, and arson. Davis argues his Sixth Amendment right to
confrontation was violated when the district court admitted testimonial
hearsay statements made by the victim under the theory of forfeiture by
wrongdoing. Davis also argues the court erred by ordering him to pay
restitution without holding a restitution hearing. We affirm the original
judgment of conviction, reverse the amended criminal judgment, and remand
for a restitution hearing.
I
[¶2] The State charged Davis with murder, endangering by fire or explosion,
and arson after a body was discovered in his apartment following a fire. Prior
to trial, the district court held an evidentiary hearing on the State’s motion in
limine regarding the admission at trial of certain statements made by the
victim, Denise Anderson, in the months leading up to her death. Anderson
made statements to the Fargo Police Department and others, including a
neighbor, of instances of Davis physically and sexually assaulting her, stalking
her, and vandalizing her car. Davis objected to the introduction of Anderson’s
statements on Sixth Amendment confrontation grounds. The court reserved its
ruling on the motion until trial.
[¶3] A jury trial was held in March 2021. Witnesses testified Davis had been
engaged in a “turbulent” relationship with the victim for several months. The
State introduced evidence that Davis believed he “was in trouble with the
police” because of his alleged assault on Anderson. Witnesses testified Davis
knew Anderson was “trying to get him for a domestic on her,” and Anderson
had told Davis she “was going to put him in jail this time.” Anderson’s
neighbors testified regarding Davis’s behavior, stating Davis was seen “sitting
out in his vehicle” “just kind of watch[ing] her apartment” for hours at a time.
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According to witnesses, Anderson wanted to file a restraining order against
Davis after the assault. Davis also seemed “concerned” after police told him
they wanted to meet with him regarding the assault investigation.
[¶4] A witness reported Davis had become “agitated” and “aggressive” in the
weeks leading up to Anderson’s murder. Recordings depicting conversations
between Davis and Anderson were extracted from Davis’s phone. In the
recordings, Davis confronted Anderson about the police investigations, stating
a detective had told him about Anderson’s reported sexual assault. Davis asked
Anderson, “Did you tell him that? That I raped you?” When Anderson
confirmed the report, Davis attempted to get her to retract her statement,
saying “Why’d you tell him that though? Because I did not.” A video was also
extracted from Davis’s phone, showing a note Anderson had purportedly
written which stated, “Sheldon is going to kill me.” In the video, Anderson
denied writing the note. Davis then asked her, “So you really thought I was
going to kill you?”
[¶5] Outside the hearing of the jury, and over Davis’s objection, the district
court ruled it would admit Anderson’s statements, applying the doctrine of
forfeiture by wrongdoing and finding from the evidence presented that “the
motive behind the homicide was to make Ms. Anderson unavailable for any
testimony [and] to stop the investigation into” Davis’s alleged sexual assault
and physical assault. The State presented witnesses eliciting statements
Anderson had made before she died. The State introduced testimony regarding
Anderson’s statements to officers who investigated her claim that Davis had
physically and sexually assaulted her. The State also introduced 911 calls, in
which Anderson reported Davis had been stalking her following the assault
and that she suspected he had broken her vehicle window. The court allowed
the 911 calls under N.D.R.Ev. 404(b) for the purpose of showing motive.
[¶6] The jury returned guilty verdicts on all three charges. On May 10, 2021,
the court sentenced Davis to life without parole and stated restitution would
be left open for 60 days. At the sentencing hearing, the State informed Davis
restitution would be requested for the victim’s funeral expenses, including the
approximate amount. The court stated on the record it would allow a
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restitution hearing, and that the State must notice a hearing or file a
stipulation within 60 days.
[¶7] On May 17, 2021, the State moved under N.D.R.Ct. 3.2 for an amended
criminal judgment to include restitution for the victim’s funeral expenses as
provided in a statement from the funeral home, but did not schedule a hearing.
Notice of the motion and the associated documents were served on Davis’s
attorney the same day. Davis did not respond to the motion. The court granted
the motion on June 14, 2021, without a hearing, ordering Davis to pay
$3,550.00 in restitution. Davis appeals from the amended criminal judgment.
II
[¶8] Davis argues his Sixth Amendment right to confrontation was violated
when the district court admitted testimonial hearsay statements made by
Anderson. Although Davis points to no particular witness or testimony that
should have been excluded, he argues generally the court misapplied the
forfeiture rule and the court’s findings are not adequate to support its
conclusions.
[¶9] The Confrontation Clause of the Sixth Amendment to the United States
Constitution, applicable to the states through the Fourteenth Amendment,
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.
This Court’s standard of review for a claimed violation of a constitutional right,
including the right to confront an accuser, is de novo. State v. Poulor, 2019 ND
215, ¶ 6, 932 N.W.2d 534 (citing State v. Blue, 2006 ND 134, ¶ 6, 717 N.W.2d
558).
A
[¶10] The Confrontation Clause bars the admission of out-of-court testimonial
statements unless the witness is unavailable and the defendant has had a prior
opportunity to examine the witness. Crawford v. Washington, 541 U.S. 36, 68
(2004). The Minnesota Supreme Court has summarized an exception to
confrontation announced by the United States Supreme Court:
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There is a narrow exception to the confrontation right, referred to
as forfeiture by wrongdoing, which “extinguishes confrontation
claims on essentially equitable grounds . . . .” [Crawford] at 62, 124
S.Ct. 1354 (citing Reynolds v. United States, 98 U.S. 145, 158-
59, 25 L.Ed. 244 (1879)). The forfeiture-by-wrongdoing exception
is aimed at defendants who intentionally interfere with the judicial
process. The Supreme Court has said that “[W]hen defendants
seek to undermine the judicial process by procuring or coercing
silence from witnesses and victims, the Sixth Amendment does not
require courts to acquiesce.” Davis v. Washington, 547 U.S. 813,
833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The Court has also
said that “[w]hile defendants have no duty to assist the State in
proving their guilt, they do have the duty to refrain from acting in
ways that destroy the integrity of the criminal-trial system.” Id.State v. Cox, 779 N.W.2d 844, 850-51 (Minn. 2010).
[¶11] Under the forfeiture doctrine, the defendant may forfeit both
constitutional and hearsay objections if their conduct causes the declarant’s
unavailability. 5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence §
802.05[6], p. 802-95 (M. Brodin ed., 2d ed. 2021). The forfeiture doctrine was
codified in 1997, when the United States Supreme Court approved Rule 804(b)
of the Federal Rules of Evidence, and 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.” Giles v. California, 554 U.S.
353, 367 (2008). We have recognized the constitutional forfeiture doctrine by
adopting the hearsay exception based on the same theory under N.D.R.Ev.
804(b)(6). See Explanatory Note (“Rule 804 was amended, effective March 1,
2000, to follow the December 1, 1997, federal amendment” and noting “Rule
804(b)(6) provides for forfeiture of the right to object on hearsay grounds due
to a party’s own wrongdoing”).
[¶12] Although this Court has never addressed the doctrine of forfeiture by
wrongdoing, we note the majority of jurisdictions adopting the doctrine have
applied tests with elements which are substantively the same, although
articulated differently. See, e.g., State v. Poole, 2010 UT 25, ¶ 20, 232 P.3d 519(“[T]he forfeiture test is articulated through a three-element test that requires
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the state to show (1) the witness is unavailable at trial, (2) the witness’s
unavailability was caused by a wrongful act of the defendant, and (3) the
defendant’s act was done with an intent to make the witness unavailable.”);
People v. Burns, 832 N.W.2d 738, 743-44 (Mich. 2013). Relying on the
principles set forth in Giles, the Minnesota Supreme Court adopted a four-part
test that requires the State to prove: (1) that the declarant-witness is
unavailable; (2) that the defendant engaged in wrongful conduct; (3) that the
wrongful conduct procured the unavailability of the witness; and (4) that the
defendant intended to procure the unavailability of the witness. Cox, 779
N.W.2d at 851. In Cox, the Minnesota Supreme Court established that the
preponderance of the evidence standard applies to the State’s burden of proof.
Id. at 852; see also United States v. Emery, 186 F.3d 921, 927 (8th Cir. 1999)
(requiring proof by a preponderance of the evidence). We agree with the four-
part test announced in Cox, and conclude the State must prove those elements
of forfeiture by wrongdoing to the trial court by a preponderance of the
evidence.
B
[¶13] Considering the test adopted above, Davis does not dispute that
Anderson was unavailable, that he engaged in wrongful conduct, or that his
wrongful conduct procured Anderson’s unavailability. Nor does the State
dispute that Anderson’s statements accusing Davis of assault, stalking, and
vandalism were testimonial. Although not challenged here, this Court has
previously stated statements made to friends and family generally are not
testimonial statements and Giles did not extend the Sixth Amendment’s
confrontation right to all statements made by a deceased declarant. State v.
Aguero, 2010 ND 210, ¶¶ 16-17, 791 N.W.2d 1 (citing Giles and noting the
Confrontation Clause only excludes testimonial statements; statements made
to friends and neighbors may be excluded only by hearsay rules, if at all).
[¶14] Rather, Davis contends the State failed to prove his wrongful conduct
was intended to prevent Anderson from testifying. Davis argues the court was
required to find Davis “specifically intended to kill Ms. Anderson in order to
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keep her from testifying at her murder trial,” and the lack of such a finding
renders the doctrine of forfeiture by wrongdoing inapplicable.
[¶15] We disagree with Davis that the State had to show he intended to keep
the victim from testifying at her murder trial. “[T]he requirement of intent
‘means that the exception applies only if the defendant has in mind the
particular purpose of making the witness unavailable.’” Giles, 554 U.S. at 367.
According to one learned treatise, the State is required to prove intent beyond
that needed “to sustain conditions in which abuse can occur, that shows that
the alleged abuser actually intended to keep the victim from testifying, and
murder or assault in the setting of an ongoing intimate or domestic
relationship is not enough by itself to support the necessary inference of
intent.” 5 C. Mueller & L. Kirkpatrick, Federal Evidence § 8:134, p. 238-39 (4th
ed. 2013). Other courts that have considered the issue have noted, while the
State must prove the defendant intended to prevent the victim’s testimony, the
majority rule does not require the defendant intend to prevent testimony in a
particular trial or proceeding. See Vasquez v. People, 173 P.3d 1099, 1104 (Colo.
2007) (defendant’s intent need not attach to any particular proceeding;
defendant need only intend to render the declarant unavailable “as a witness”
to forfeit his right to confront that witness); People v. Peterson, 2017 IL 120331,
¶ 54 (“[F]orfeiture doctrine could apply not only where the defendant’s efforts
were designed to prevent testimony at trial, but also where the defendant’s
efforts were designed to prevent testimony to police.”); Emery, 186 F.3d at 926(rejecting defendant’s argument that forfeiture “should apply only in a trial on
the underlying crimes about which he feared [victim] would testify, not in a
trial for murdering her”).
[¶16] The Missouri Supreme Court has previously faced a question similar to
Davis’s argument. See State v. McLaughlin, 265 S.W.3d 257 (Mo. 2008). In
McLaughlin, the defendant had been originally charged with burglarizing the
victim’s home. Id. at 260. Following his arraignment for the burglary charges,
the defendant murdered the victim. Id. At the murder trial, the defendant
argued forfeiture by wrongdoing “cannot apply where the purpose of keeping
the witness away was not related to the present case.” Id. at 272. According to
the defendant,
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the exception would apply at a trial for the burglary of the victim’s
home and at an adult abuse trial if he killed her to keep her from
testifying at that burglary trial and adult abuse trial, but here he
is being tried for murder, and since he did not kill her in order to
keep her from testifying at his trial for her own murder, the
exception would not apply.
Id. The court rejected McLaughlin’s argument. Although “the state must show
that the defendant engaged in the wrongdoing with the intent to prevent the
witness from testifying,” the court noted Justice Scalia’s application of the
forfeiture doctrine to domestic violence cases:
Acts 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. Where such an abusive relationship culminates in
murder, the evidence may support a finding that the crime
expressed the intent to isolate the victim and to stop her from
reporting abuse to the authorities or cooperating with a criminal
prosecution—rendering her prior statements admissible under the
forfeiture doctrine. Earlier abuse, or threats of abuse, intended to
dissuade the victim from resorting to outside help would be highly
relevant to this inquiry, as would evidence of ongoing criminal
proceedings at which the victim would have been expected to
testify.
Id. (quoting Giles, 554 U.S. at 377). Where the court found the defendant
intended to make the victim unavailable as a witness in the underlying
burglary and abuse cases, the statements were also admissible in a trial for
the victim’s murder. Id. at 273, n.10. We have discovered no requirement “to
prove the specific nature of testimony that the witness might give if she
testified, or to prove that defendant was seeking to avoid trial or conviction for
any particular charge.” Mueller, Federal Evidence, at 234-35. “[T]he required
intent may exist well in advance of any criminal charges being filed, so long as
the person who engages in wrongful conduct has the intent of silencing a
potential witness in a foreseeable criminal or other proceeding.” Id.
[¶17] Here, the district court heard testimony Anderson “had gone to the police
about the alleged assault, and [Davis] was afraid that he was going to be in
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trouble for that.” Witnesses stated Davis knew Anderson “had been talking to
the police quite a bit concerning the altercation they had,” and Anderson had
told Davis he was going to jail. Witnesses further testified Davis had said “the
girl that he was seeing pressed charges against him for rape and assault.”
Davis reportedly told a witness, “I don’t want to do time. I’m not going to
prison.” Further testimony indicated Anderson wanted to file a restraining
order against Davis, and Davis had attempted to get Anderson to withdraw
her police report concerning the assault. When considering admission of
evidence under N.D.R.Ev. 404(b), the court discussed Davis’s motive stating,
“During the time between the alleged assault and the alleged homicide, Mr.
Davis was trying to get Ms. Anderson to recant her story, stalking her. Mr.
Davis was aware that Ms. Anderson had reported the alleged assault to the
police and that an investigation was ongoing.”
[¶18] In applying forfeiture by wrongdoing, the district court stated:
Ms. Anderson is, of course, unavailable. The standard that I’m
applying is preponderance of the evidence. There is preponderance
of the evidence here that the Defendant engaged in wrongful
conduct to secure her unavailability as a witness. As a result of the
wrongful conduct, Ms. Anderson is not able to be a witness and for
that Mr. Davis intended to procure the unavailability of the
witness. Specifically, this is with respect to the allegation of a
sexual assault and a physical assault, I intend to apply the line of
cases provided in the State’s brief, indicating that the forfeiture by
wrongdoing can extend to the homicide trial. So there’s a
preponderance of the evidence here that Ms.—the motive behind
the homicide was to make Ms. Anderson unavailable for any
testimony, to stop the investigation into the alleged rape—or
excuse me, the alleged sexual assault, the alleged physical assault
that allegedly occurred here in this case. So I’m applying those
forfeiture by wrongdoing tests.
The court found Davis’s intent was to procure Anderson’s unavailability as a
witness. The court, in multiple recitations on the record, found a
preponderance of the evidence supported Davis’s intent to procure the
unavailability of the witness and to prevent Anderson from assisting with the
investigation into the alleged sexual assault or from testifying at any ongoing
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criminal proceeding. We conclude the evidence presented supports the court’s
findings and the findings are adequate for our de novo review. We conclude the
court did not err in applying the forfeiture doctrine when it admitted
Anderson’s statements.
III
[¶19] Davis also argues the district court ordered an illegal sentence by
requiring him to pay restitution without holding a hearing, in violation of
N.D.C.C. § 12.1-32-08. The State argues a hearing was not required because
Davis did not file a brief in response to the motion for restitution or otherwise
contest the amount requested.
[¶20] A sentence is illegal if it is not authorized by the judgment of conviction.
State v. Edwards, 2007 ND 113, ¶ 5, 736 N.W.2d 449 (discussing an illegal
sentence in the context of N.D.R.Crim.P. 35(a)). Here, the district court
informed the parties it would allow a restitution hearing and required the
State to notice the hearing or file a stipulation within 60 days. The criminal
judgment stated that “a restitution hearing shall be set or stipulation to be
filed.” Regardless of whether the court followed the procedural requirements
of N.D.R.Ct. 3.2, as argued by the State, the State’s motion did not schedule a
restitution hearing or provide a stipulation as required by the judgment of
conviction. The court issued an illegal sentence by amending the judgment
without following the terms it authorized for amendment of the criminal
judgment.
IV
[¶21] We hold the district court did not err in admitting Anderson’s
statements, and affirm the conviction and the original judgment. We reverse
the amended judgment and remand for a hearing on restitution or the filing of
a stipulation as required by the original judgment.
[¶22] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
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Lisa Fair McEvers
Jerod E. Tufte
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