State of West Virginia v. Jako ( 2021 )

FILED
June 2, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 19-1102 – State of West Virginia v. Gerald Jako, Jr. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Wooton, Justice, dissenting:
The Confrontation Clause set forth in the Sixth Amendment to the United
States Constitution and article III, section 14 of the West Virginia Constitution guarantees
an accused the right to confront and cross-examine witnesses. 1 This constitutional right is
of critical importance, yet the majority finds that the petitioner, Gerald Jako, forfeited it by
engaging in wrongdoing that was intended to prevent his girlfriend and co-defendant,
Samantha England, from testifying against him at trial. See Syl. Pt. 11, State v. Mechling,
219 W. Va. 366, 633 S.E.2d 311 (2006)(“Under the doctrine of forfeiture, an accused who
obtains the absence of a witness by wrongdoing forfeits the constitutional right to
confrontation.”). 2 In so holding, the majority embarks on a steady path of erosion of the
1
In the United States Constitution the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall . . . be confronted with the witnesses against him[.]”
Likewise, the Confrontation Clause contained in the article III, section 14 of the West
Virginia Constitution provides that in “[t]rials of crimes, and misdemeanors . . . the accused
shall be . . . confronted with the witness against him[.]”
2
In two new syllabus points the majority modifies the holding in Mechling to include
an additional element that an accused must engage in wrongdoing with the intent to obtain
the absence of a witness. In this regard, the majority holds in syllabus points four and five:
Before a circuit court may admit an out-of-court
testimonial statement under the common law, forfeiture-by-
wrong doing doctrine, codified in Rule 804(b)(6) of the West
Virginia Rules of Evidence (2014), the court must find by a
preponderance of the evidence that the defendant (1) acted
wrongfully, or acquiesced to the wrongful actions of another;
1
Confrontation Clause, broadly applying an evidentiary rule which unquestionably
precludes the petitioner’s exercise of this most basic constitutional right. Because I
strongly disagree that the facts in this case warrant a determination that the petitioner
engaged in wrongdoing sufficient to support the forfeiture of his right to confront his
accuser, I respectfully dissent.
I. The Confrontation Clause
The Confrontation Clause has been described by the United States Supreme
Court as a “bedrock procedural guarantee” which “applies to both federal and state
prosecutions.” Crawford v. Washington, 541 U.S. 36, 42 (2004). As the Supreme Court
so poignantly stated in Pointer v. Texas, 380 U.S. 400 (1965):
It cannot seriously be doubted at this late date that the
right of cross-examination is included in the right of an accused
in a criminal case to confront the witnesses against him. And
probably no one, certainly no one experienced in the trial of
lawsuits, would deny the value of cross-examination in
exposing falsehood and bringing out the truth in the trial of a
criminal case. See, e.g., 5 Wigmore, Evidence s 1367 (3d ed.
1940). The fact that this right appears in the Sixth Amendment
of our Bill of Rights reflects the belief of the Framers of those
(2) did so with the intent to cause a witness to be unavailable;
and (3) actually rendered the witness unavailable.
To the extent that State v. Mechling, 219 W. Va. 366,
633 S.E.2d 311 (2006), does not limit application of the
forfeiture-by-wronging doctrine to when a defendant engaged
in wrongdoing with the intent to obtain the absence of a
witness, as required under Giles v. California, 554 U.S. 353(2008), that case is modified.
2
liberties and safeguards that confrontation was a fundamental
right essential to a fair trial in a criminal prosecution. . . . . This
Court in Kirby v. United States, 174 U.S. 47, 55, 56, 19 S.Ct.
574, 577, 43 L.Ed. 890 [(1899)], referred to the right of
confrontation as ‘(o)ne of the fundamental guaranties of life
and liberty,’ and ‘a right long deemed so essential for the due
protection of life and liberty that it is guarded against
legislative and judicial action by provisions in the constitution
of the United States and in the constitutions of most, if not of
all, the states composing the Union.’ Mr. Justice Stone, writing
for the Court in Alford v. United States, 282 U.S. 687, 692, 51
S.Ct. 218, 219, 75 L.Ed. 624 [(1931)], declared that the right
of cross-examination is ‘one of the safeguards essential to a fair
trial.’ And in speaking of confrontation and cross-examination
this Court said in Greene v. McElroy, 360 U.S. 474, 79 S.Ct.
1400, 3 L.Ed.2d 1377[(1959)]:
‘They have ancient roots. They find expression
in the Sixth Amendment which provides that in
all criminal cases the accused shall enjoy the
right ‘to be confronted with the witnesses against
him.’ This Court has been zealous to protect
these rights from erosion.’ 360 U.S., at 496-497,
79 S.Ct., at 1413 (footnote omitted.[).]
Pointer, 380 U.S. at 404-05 (emphasis added).
II. The Forfeiture by Wrongdoing Doctrine
Notwithstanding the essential importance of this constitutional right, the
United States Supreme Court has recognized, going back to the common law, that a
defendant can engage in wrongdoing sufficient to forfeit it (hereinafter sometimes referred
to as “the forfeiture-by-wrongdoing doctrine”). The issue was first discussed by the
Supreme Court in Reynolds v. United States, 98 U.S. 145 (1878). In Reynolds, the
3
defendant was charged with bigamy and was found to have kept his second wife away from
home so that she could not be served with a subpoena commanding her to testify against
him at his trial. Id. at 159-60. The trial court permitted the state to introduce testimony
from the defendant’s second wife taken in a prior trial against him for the same offense.
Id. at 160.
On appeal, the Supreme Court determined that the defendant had engaged in
the wrongful overt act of concealing his wife – the witness against him – to keep her from
testifying at trial. The Supreme Court determined that
[t]he Constitution gives the accused the right to a trial at which
he should be confronted with the witnesses against him; but if
a witness is absent by his own wrongful procurement, he
cannot complain if competent evidence is admitted to supply
the place of that which he has kept away. The Constitution
does not guarantee an accused person against the legitimate
consequences of his own wrongful acts. It grants him the
privilege of being confronted with the witnesses against him;
but if he voluntarily keeps the witnesses away, he cannot insist
on his privilege. If, therefore, when absent by his procurement,
their evidence is supplied in some lawful way, he is in no
condition to assert that his constitutional rights have been
violated.
Id. at 158.
The Supreme Court again addressed the forfeiture-by-wrongdoing doctrine
in Davis v. Washington, 547 U.S. 813 (2006), with the late Justice Antonin Scalia writing
for the majority. The Davis decision involved two different domestic violence cases. In
4
the first, the defendant was charged with a felony violation of a domestic no-contact order
and the victim, the defendant’s girlfriend, failed to appear as a witness against him at trial.
Id. at 818-19. The State sought to introduce a 911 recording of the conversation between
the victim and the operator in which the victim was calling to report domestic violence.
The victim reported that that defendant Davis was beating on her with his fists. Id. at 818.
The defendant objected to the admission of this evidence based on his confrontation right.
The trial court admitted the recording over objection and the defendant was convicted. His
conviction was affirmed on appeal to the Supreme Court of Washington and the Supreme
Court granted certiorari. Id. at 819.
In the second case, police responded to a domestic violence call between a
husband and wife. One of the police officers had the wife complete and sign a battery
affidavit wherein she handwrote the following statement: “‘Broke our Furnace & shoved
me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke
our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my
daughter.’” Id. at 820. The husband was charged with domestic battery and violating his
probation. As was the factual situation in the first case discussed supra, the defendant’s
wife did not attend his bench trial. The trial court allowed the evidence of the wife’s battery
affidavit to be admitted into evidence over the husband’s objection, and he was convicted.
The conviction was affirmed on appeal by the Indiana appellate courts. The Supreme Court
granted certiorari. Id. at 821.
5
The focus of the Supreme Court in Davis was on whether the 911 call or the
victim’s statement contained in the battery affidavit were “testimonial” and therefore
subject to the Confrontation Clause analysis. Id. at 817. The respondents raised the
forfeiture-by-wrongdoing doctrine only as additional support for why the respective
victim’s statements were properly admitted at trial. Accordingly, the Supreme Court did
not discuss the specifics of the respective defendant’s wrongdoing in these cases because
that was not the basis for the lower courts’ admission of the statements. However, in regard
to the argument that domestic violence cases required greater flexibility in the use of
testimonial evidence when a witness fails or refuses to testify, the Supreme Court stated:
This particular type of crime is notoriously susceptible to
intimidation or coercion of the victim to ensure that she does
not testify at trial. When this occurs, the Confrontation Clause
gives the criminal a windfall. We may not, however, vitiate
constitutional guarantees when they have the effect of allowing
the guilty to go free. . . . But when 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. While 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. We reiterate what we said in Crawford:
that “the rule of forfeiture by wrongdoing . . . extinguishes
confrontation claims on essentially equitable grounds.” 541
U.S., at 62, 124 S.Ct. 1354 (citing Reynolds, 98 U.S., at 158–
159). That is, one who obtains the absence of a witness by
wrongdoing forfeits the constitutional right to confrontation.
547 U.S. at 832-33 (some emphasis added).
6
Two years after Davis, in Giles v. California, 554 U.S. 353 (2008), the
defendant shot his ex-girlfriend six times, killing her. At trial, the State sought to introduce
statements that the murder victim made to police who responded to a domestic violence
call about three weeks before the murder. The statements involved the defendant’s threats
to kill the victim if he found her cheating on him. Over the defendant’s objection, the trial
court admitted the statements under a California law “that permits admission of out-of-
court statements describing the infliction or threat of physical injury on a declarant when
the declarant is unavailable to testify at trial and the prior statements are deemed
trustworthy.” Id. at 357 (citing Cal. Evid. Code Ann. § 1370 (West Supp. 2008)).
Justice Scalia, writing for the Supreme Court, once again examined the
doctrine of forfeiture by wrongdoing and found that
[t]he common-law forfeiture rule was aimed at removing the
otherwise powerful incentive for defendants to intimidate,
bribe, and kill the witnesses against them—in other words, it is
grounded in “the ability of courts to protect the integrity of
their proceedings.” Davis, supra, at 834, 126 S.Ct. 2266. The
boundaries of the doctrine seem to us intelligently fixed so as
to avoid a principle repugnant to our constitutional system of
trial by jury: that those murder defendants whom the judge
considers guilty (after less than a full trial, mind you, and of
course before the jury has pronounced guilt) should be
deprived of fair-trial rights, lest they benefit from their judge-
determined wrong.
554 U.S. at 374 (footnote omitted). The Giles Court went on to determine that intent is an
element that must be shown for the forfeiture rule to apply: “The manner in which the rule
7
was applied makes plain that unconfronted testimony would not be admitted without a
showing that the defendant intended to prevent a witness from testifying.” Id. at 361 (some
emphasis added). 3 Because the state courts failed to consider the defendant’s intent, finding
it “irrelevant to the application of the forfeiture doctrine[,]” the Supreme Court reversed
and remanded the case for further proceedings. Id. at 377.
It is clear from both the Davis and the Giles decisions that the Supreme Court
was focused on an application of the forfeiture-by-wrongdoing doctrine which balanced
protecting the criminal trial system against a defendant’s right to confront witnesses. In
that regard, the Supreme Court readily acknowledged that a defendant should not benefit
from his or her wrongdoing that rises to the level of undermining the judicial process. See
Davis, 547 U.S. at 832-33. However, the Supreme Court was equally mindful of the real
conflict between the need to protect the integrity of the judicial process and the need to
protect the essential constitutional right of confrontation. As Justice Scalia so eloquently
articulated on this point:
[T]he guarantee of confrontation is no guarantee at all if it is
subject to whatever exceptions courts from time to time
consider “fair.” It is not the role of courts to extrapolate from
the words of the Sixth Amendment to the values behind it, and
3
It is this language, indicating that intent is part of an application of the forfeiture-
by-wrongdoing doctrine, which caused the majority to modify the holding of Mechling.
See supra note 2; see also W. Va. R. Evid. 804(b)(6) (providing that a statement is not
excluded by the hearsay rule where the declarant is unavailable and the statement is
“offered against a party that wrongfully caused – or acquiesced in wrongfully causing –
the declarant’s unavailability as a witness, and did so intending that result.”).
8
then to enforce its guarantees only to the extent they serve (in
the courts’ views) those underlying values. The Sixth
Amendment seeks fairness indeed—but seeks it through very
specific means (one of which is confrontation) that were the
trial rights of Englishmen. It “does not suggest any open-ended
exceptions from the confrontation requirement to be developed
by the courts.” Crawford [v. Washington, 541 U.S. [36], at 54,
124 S.Ct. 1354.
Giles, 554 U.S. at 375-76 (footnote omitted).
III. West Virginia’s Adoption of the Doctrine
Following Davis, this Court was presented with an appeal of a domestic
battery conviction where the circuit court allowed the victim’s statements to be admitted
at trial, over the defendant’s objection, because the victim did not appear to testify.
Mechling, 219 W. Va. at 369-70, 633 S.E.2d at 314-15. The victim told another witness to
the domestic battery, as well as a law enforcement officer, that the defendant hit her in the
head and that she had a knot. Id. at 370, 633 S.E.2d at 315. This Court found that victim’s
statements were improperly admitted against the defendant in violation of the
Confrontation Clause as set forth in the Sixth Amendment to the United States Constitution
and article III, section 14 of the West Virginia Constitution. The defendant’s conviction
was reversed, and the case remanded to the circuit court for further proceedings. Id. at 379,
633 S.E.2d at 324.
9
In reaching this decision, the Court was very mindful of the impact it might
have on domestic violence victims. As the Court noted:
We reach our decision in this case with some hesitation. This
Court is painfully aware that domestic violence cases
inherently present a combination of circumstances that
obstruct, yet simultaneously intensify the need for, successful
criminal prosecutions: low victim cooperation and high same-
victim recidivism. See Tom Lininger, “Prosecuting Batterers
after Crawford,” 91 Va.L.Rev. 747, 768–71 (2005).
Frequently, the victims of domestic violence are deeply
conflicted about their plight and refuse to seek police
intervention, let alone testify at trial. Society commonly
expects a victim of domestic violence to call the police.
However, empirical data show that most domestic-violence
victims do not call the police, and even when the police are
called, the outcome is not always positive. May Ann Dutton,
“Understanding Women’s Responses to Domestic Violence: A
Redefinition of Battered Woman Syndrome,” 21 Hofstra
L.Rev. 1191, 1229 (1993).
Mechling, 219 W. Va. at 379, 633 S.E.2d at 324. It was out of this concern only that the
Court decided to adopt the forfeiture-by-wrongdoing doctrine, despite the fact that the
forfeiture issue was neither raised as an assignment of error nor argued in the briefs
submitted to the Court in Mechling. Nevertheless, as previously mentioned, the Court held
in syllabus point that “[u]nder the doctrine of forfeiture, an accused who obtains the
absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Id.
at 369, 633 S.E.2d at 314, Syl. Pt. 11. In so holding, the Court cautioned:
The U.S. Supreme Court was not unmindful of this problem in
domestic violence prosecutions when it issued Crawford and
Davis, and neither is this Court. Still, the protections provided
by the Constitution and the Confrontation Clause cannot be
sacrificed by the State upon the altar of expediency to achieve
10
a conviction in a domestic violence case. But those protections
may be sacrificed by the accused through a time-tested
equitable doctrine: forfeiture.
Id. at 380, 633 S.E.2d at 325 (footnote omitted).
Significantly, in its adoption of this doctrine the Court was solely focused on
its application in domestic violence cases. As the Court stated:
An accused’s coercion or intimidation of a victim of
domestic violence so as to trigger forfeiture can take many
forms. The most obvious situation is where the accused
directly confronts the victim after being charged, and
intentionally coerces the victim into changing his or her
statement, or simply not testifying. Another likely situation
where an accused may trigger forfeiture is when, after being
charged, the accused engages in further abuse or intimidation
of the victim which is not explicitly intended to alter, but has
the effect of altering, the victim’s testimony. But,“[b]attered
women . . . may perceive danger and imminence differently
from men. . . . A subtle gesture or a new method of abuse,
insignificant to another person, may create a reasonable fear in
a battered woman.” People v. Romero, 13 Cal.Rptr.2d 332, 336
n.6 (1992) (citation omitted). Hence, the most difficult
forfeiture situation for courts to assess will be those
circumstances where the victim responds to a batterer’s actions
that precede the domestic violence charge—that is, where the
accused’s earlier conduct and threats (statements like “don’t
you ever call the police or else!”) cause the victim to decline to
testify, claim a lack of memory, or be absent from the trial.
In order for forfeiture to be proven in domestic violence
actions, prosecutors, law enforcement officers and courts must
secure evidence—possibly from third parties—prior to trial,
indicating that these victims are too frightened to testify about
the intimidating and coercive character of the accused’s
actions. If a victim is too scared to testify against the accused,
for fear of retribution, the victim will probably also be too
scared to testify in any pre-trial forfeiture proceeding.
11
219 W. Va. at 381, 633 S.E.2d at 326 (emphasis added). Other than this discussion of
hypothetical facts that could support a determination that a defendant by his wrongdoing
could forfeit his right to confront a victim, the Mechling opinion is wholly devoid of any
discussion of any facts which would warrant application of the forfeiture-by-wrongdoing
doctrine outside the narrow confines of domestic violence. Indeed, given the Court’s
reversal of the defendant’s conviction, there was no analysis or discussion of what conduct
by this defendant was – or even could be – sufficient to support a finding of wrongdoing
that would warrant forfeiture of his right to confront his accuser.
IV. What Conduct Warrants Application of the Doctrine
Consequently, neither Mechling nor any case thereafter – until today – has
this Court actually applied the forfeiture-by-wrongdoing doctrine to defeat a defendant’s
confrontation clause objection to admission of evidence. Thus, the instant case is one of
first impression for this Court to decide what conduct constitutes wrongdoing by a
defendant sufficient to warrant application of the doctrine. It is disconcerting that the
majority, having never previously examined the question, so easily decides this question
against the petitioner under the fact and circumstances presented here.
The alleged “wrongdoing” at issue in this case arises from recorded phone
conversations between the petitioner and his girlfriend/co-defendant, Ms. England. In
12
those conversations, the petitioner tells Ms. England such things as he had no use for her,
that she could “be whatever you want to be as long as it’s loyal and honest and true to
me[,]” that he would never leave her unless she was disloyal, that she should not be running
her mouth – “[i]t’s destructive[,]” that he loved her but she was lying, that he wanted her
loyalty, and that he wanted a woman he could count on and trust. 4 Critically, these recorded
conversations fail to show the petitioner either threatening to harm Ms. England, coercing
her, or intimidating her in any way. Moreover, the record was devoid of any evidence of
domestic violence or an abusive relationship between the petitioner and Ms. England which
could have factored into the determination of any perceived “wrongdoing” by the petitioner
regarding Ms. England’s decision to decline a plea deal offered by the State. 5 Nonetheless,
4
Closing its eyes to the reality of criminal law at the trial court level, the majority
determines that these statements not only support the circuit court’s finding that the
petitioner “acted with intent to render Ms. England unavailable to testify at trial[,]” but that
“he exerted enough power over her to persuade her to abandon a plea deal that earned her
a sentencing recommendation from the State, no recommendation for a gun-specific
finding, and dismissal of the second count in the indictment.”
Quite frankly, it is no wonder that Ms. England backed out of this so-called plea
“deal.” In the eyes of many defense attorneys, a plea deal that results in a recommended
sentence of forty years is no deal at all, although it could be a starting point for plea
negotiations – an option within the control of the State, which, for reasons unknown, seems
never to have considered the possibility of “sweetening the deal” in exchange for Ms.
England’s testimony.
5
Ms. England did not blame the petitioner for her decision. Importantly, the circuit
court found her decision not to go forward with the plea deal to be made “knowingly,
intelligently, and without threat of coercion, force, or duress.” The prosecutor spoke with
Ms. England, with her counsel present, and when the prosecutor asked Ms. England the
leading question of whether she was afraid of the petitioner, she responded, “Oh,
definitely.” Ms. England never offered details concerning her alleged “fear” of the
petitioner, and she never stated that her alleged “fear” was what caused her to change her
mind regarding the plea agreement. See supra note 4.
13
despite the narrow application of the forfeiture-by-wrongdoing doctrine espoused (albeit
in dicta) in Mechling, the majority here expands the doctrine to usurp the petitioner’s right
to confront his co-defendant based upon comments made by the petitioner to the co-
defendant, which lack any indicia of actual or threatened coercion, intimidation, physical
harm, or the like, and which did not involve any hint of domestic violence. This is a
gigantic leap far beyond anything intended in Mechling, and serves to remind us of Justice
Scalia’s warning that “the guarantee of confrontation is no guarantee at all if it is subject
to whatever exceptions courts from time to time consider ‘fair.’” Giles, 554 U.S. at 375.
There are very few cases from other jurisdictions in which courts have held
the type of conduct displayed by the petitioner herein sufficient to find forfeiture of the
right to confront a witness. The closest is the recent decision issued by the Court of Appeal
of California in People v. Reneaux, 264 Cal.Rptr.3d 459 (Cal. Ct. App. 2020), reh’g denied
(July 14, 2020), review denied (Aug. 26, 2020), which at its core involved domestic
violence. In Reneaux, the defendant was convicted of inflicting corporal injury on his
girlfriend, false imprisonment of her and dissuading her from testifying against him. The
California court found that the defendant had forfeited his right to confront his girlfriend
by his own wrongdoing, which consisted of the following:
About a week before he was arrested, defendant went to
E.’s apartment and spoke with her to “make peace.” On the day
he was arrested, he called E. from jail. He told her she needed
to call law enforcement and tell them she had made a false
report. She agreed to make the call. He continued, that she
14
needed to tell law enforcement it was all a lie. She agreed to
tell them that. He told her it was “the only way,” the only thing
she could do, because he wanted to marry her, and if he went
to prison he would not have her anymore. She promised she
would get him out. He told her in his arms was the only place
he wanted to be. He urged her to “fuckin’ do this baby.” She
again promised she would.
Shortly after that phone call, E. contacted the police
department and told them she wanted to change her story, and
what they had in their report was not accurate. She also
contacted the district attorney’s office and informed them she
had lied in the report. Although E. had earlier contact with law
enforcement after the incident between herself and defendant,
she did not indicate she wanted to recant her statements or had
lied in her statements until after the September 9 phone call
with defendant; a phone call in which he encouraged her to not
cooperate with law enforcement and cajoled her by promising
to marry her, but only if she could get him out of jail by not
cooperating with law enforcement. It was reasonable to infer
from this evidence, that defendant’s statements telling her not
to cooperate with law enforcement and promising to marry her
but only if she got him out of jail were intended to, and did,
cause E. to recant her statements to law enforcement, and later,
to refuse to testify despite a grant of immunity.
Id. at 469-70.
The California court found that this evidence, as well as other similar
evidence, was sufficient to support the trial court’s determination that the defendant had
engaged in wrongdoing and therefore forfeited his claim that his constitutional right to
confront the witness. In reaching this decision, the court
recognize[d] defendant’s statements here were not explicitly
threatening or directive. However, consistent with the broad
construction of the elements required for the application of this
15
doctrine, and the underlying purpose to prevent defendant from
undermining the judicial process, we do not find such explicit
behavior to be necessary. This view is particularly apt in the
context of domestic violence offenses and abusive
relationships, which typically include an element of inherent
psychological coercion, and the reality that “[t]his particular
type of crime is notoriously susceptible to intimidation or
coercion of the victim to ensure that [the witness] does not
testify at trial.” (Davis v. Washington (2006) 547 U.S. 813,
832-833, 126 S.Ct. 2266, 165 L.Ed.2d 224.)
Whether a defendant’s conduct constitutes
“wrongdoing” depends not necessarily on its character, but on
the defendant's intent and whether his actions caused the
witness not to appear. It is true that most of the reported cases
involving this exception to the Confrontation Clause involve
serious criminal conduct, but that does not preclude courts
from finding that nonthreatening conduct such as occurred here
qualifies as wrongdoing under the appropriate legal standard
where the defendant acted with the intent to procure the
witness’s absence from court.
264 Cal. Rptr. at 471 (emphasis added); see also State v. Hallum, 606 N.W.2d 351, 358
(Iowa 2000) (finding forfeiture by wrongdoing where defendant, asserting his influence
over his step-brother who was a co-defendant and had agreed to testify against the
defendant, sent letters to his half-brother advising him to persist in not testifying, to “hang
in there” and “calm down,” but made no actual threats.).
Interestingly, in her dissenting opinion in Reneaux, Justice Elena J. Duarte,
found the defendant’s conduct insufficient to warrant a forfeiture of his constitutional right
to confront his accuser, despite the crime involved being inextricably connected with
domestic violence. See 264 Cal.Rptr.3d at 478 (Duarte, J., dissenting). Justice Duarte
16
criticized the court for finding that two brief excerpts of phone calls, separated by four
months, and which were nonthreatening and not in violation of any no-contact order rose
to a sufficient level to warrant forfeiture of “a bedrock constitutional right.” Id. at 479.
Instead, Justice Duarte stated that the defendant’s conduct simply did not compare to the
type of conduct other courts had found sufficient to find that a constitutional right was
forfeited. Specifically:
In the all-too-typical case involving forfeiture by
wrongdoing, the defendant prevents a witness from testifying
or cooperating with law enforcement by killing the witness
before trial. (See, e.g., Giles v. California (2008) 554 U.S. 353,
356, 128 S.Ct. 2678, 171 L.Ed.2d 488; People v. Kerley, supra,
23 Cal.App.5th at pp. 556-557, 233 Cal.Rptr.3d 135; People v.
Banos (2009) 178 Cal.App.4th 483, 485, 100 Cal.Rptr.3d 476;
United States v. Cazares (9th Cir. 2015) 788 F.3d 956, 975;
United States v. Jackson (4th Cir. 2013) 706 F.3d 264, 265;
United States v. Dhinsa (2d. Cir. 2001) 243 F.3d 635, 652;
United States v. Cherry (10th Cir. 2000) 217 F.3d 811, 814-
815; United States v. Emery (8th Cir. 1999) 186 F.3d 921, 926;
United States v. Houlihan (1st Cir. 1996) 92 F.3d 1271, 1279;
United States v. White (D.C. Cir. 1997) 116 F.3d 903, 911.)
But on occasion the definition of wrongful conduct has been
expanded to include threats, intimidation, and bribery. (See,
e.g., United States v. Johnson (9th Cir. 2014) 767 F.3d 815,
818 [death threats]; People v. Jones (2012) 207 Cal.App.4th
1392, 1399, 144 Cal.Rptr.3d 571 [threat of violence] (Jones);
United States v. Jackson, supra, 706 F.3d at p. 267, citing
United States v. Carlson (8th Cir. 1976) 547 F.2d 1346, 1358-
1359 [intimidation]; State v. Mechling (2006) 219 W.Va. 366,
633 S.E.2d 311, 326 [physical violence]; People v. Geraci
(1995) 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817,
823-824 [bribery].) Where there is a history of domestic
violence, repeated violations of court orders during jail visits
and phone calls may also constitute wrongful conduct. (See
United States v. Montague (10th Cir. 2005) 421 F.3d 1099,
1102-1104.) Prior to Crawford, wrongful conduct had “also
been held to include persuasion and control by a defendant, the
17
wrongful nondisclosure of information, and a defendant’s
direction to a witness to exercise the fifth amendment
privilege.” (Steele v. Taylor (6th Cir. 1982) 684 F.2d 1193,
1201, disapproved on another point in Burns v. Estelle (5th Cir.
1983) 695 F.2d 847.)
Here, defendant displayed none of these tactics. As the
majority agrees, the defendant’s conduct was neither
threatening nor in violation of a court order. . . . And although
Crawford accepted the doctrine of forfeiture by wrongdoing as
an equitable doctrine (see Crawford, supra, 541 U.S. at p. 62,
124 S.Ct. 1354), the Court also reaffirmed therein the
importance of the constitutional right to confront one’s
accuser by severely limiting those circumstances under which
that right could be circumvented. Regardless of the effect of
Crawford on the doctrine at issue here, the majority has not
cited (and I have not found) any case that has applied the
doctrine to the type of conduct seen here[.]
Reneaux, 264 Cal.Rptr.3d at 479-80 (some emphasis added) (footnote omitted); see
Commonwealth v. Edwards, 830 N.E.2d 158, 168-69 (Mass. 2005) (adopting the doctrine
of forfeiture by wrongdoing, finding that the doctrine may be applicable to cases in which
the defendant colluded with a witness to plan for the witness’s unavailability, and stating
that “[w]ithout question, the doctrine should apply in cases where a defendant murders,
threatens, or intimidates a witness in an effort to procure that witness’s unavailability.
Similarly, forfeiture will be triggered where a defendant commits a criminal act, such as a
violation of our witness tampering statute, G.L. c. 268, § 13B, in order to procure the
witness’s unavailability.”) (footnotes omitted).
18
Given the dearth of legal support for the majority’s conclusion that
wrongdoing existed in this case sufficient to find the petitioner forfeited his Sixth
Amendment right to confront witnesses, I am baffled by the majority’s willingness to
ignore Justice Scalia’s admonishment in Giles. The majority has pulled the plug on any
notion of fairness in its determination that these rather benign, nonthreatening statements
made by the petitioner to his co-defendant constituted wrongdoing sufficient to forfeit his
constitutional right to confront the witnesses against him.
For all the foregoing reasons, I respectfully dissent.
19