State v. Her, A06-1743.

• Decision Date: 06 May 2010
• Docket Number: No. A06-1743.,A06-1743.
• Citation: 781 N.W.2d 869
• Parties: STATE of Minnesota, Respondent, v. Moua HER, Appellant.
• Court: Minnesota Supreme Court

781 N.W.2d 869

STATE of Minnesota, Respondent, v. Moua HER, Appellant.

No. A06-1743.

Supreme Court of Minnesota.

May 6, 2010.

Lori Swanson, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St. Paul, MN, for respondent.

Suzanne M. Senecal-Hill, Assistant State Public Defender, Minneapolis, MN, for appellant.

OPINION

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, ___ U.S. ___, 128 S.Ct. 2678, 171 L.Ed.2d 488 (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, 126 S.Ct. 2266, 165 L.Ed.2d 224 (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, ___ U.S. ___, 128 S.Ct. 2678, 171 L.Ed.2d 488 (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 State 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,...