State v. Davis

• Decision Date: 18 February 2022
• Docket Number: 20210152
• Citation: 970 N.W.2d 201
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Sheldon George DAVIS, Defendant and Appellant
• Court: North Dakota Supreme Court

970 N.W.2d 201

STATE of North Dakota, Plaintiff and Appellee

v.Sheldon George DAVIS, Defendant and Appellant

No. 20210152

Supreme Court of North Dakota.

FILED FEBRUARY 18, 2022

Rehearing Denied March 15, 2022

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.

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. 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 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, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Minnesota Supreme Court has summarized an exception to confrontation announced by the United States Supreme Court:

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, 128 S.Ct. 2678, 171 L.Ed.2d 488 (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 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 , 494 Mich. 104, 832 N.W.2d 738, 743-44 (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,...