State v. Jako

• Decision Date: 02 June 2021
• Docket Number: No. 19-1102,19-1102
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Gerald Jako, Jr.

State of West Virginia
v.
Gerald Jako, Jr.

No. 19-1102

Supreme Court of Appeals of West Virginia

June 2, 2021

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

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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

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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

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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

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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.

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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...