PEOPLE v. GILES
Filed 3/5/07
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. TA066706
__________________________________ )
In this case, defendant admitted that he killed his ex-girlfriend, but claimed that the killing was committed in self-defense. Over defendants objection, the trial court admitted the victims prior statements to a police officer who had been investigating a report of domestic violence involving defendant and the victim. The prior incident had occurred a few weeks before the killing. The victim related that, during that incident, defendant had held a knife to her and threatened to kill her.
Did defendant forfeit his right to confront his ex-girlfriend about the prior incident of domestic violence by killing her and thus making it impossible for her to be at the murder trial? Does the doctrine of forfeiture by wrongdoing apply where the alleged wrongdoing is the same as the offense for which defendant was on trial? Under that equitable doctrine, a defendant is deemed to have lost the right to object on confrontation grounds to the admission of out-of-court statements of a witness whose unavailability the defendant caused.
As explained below, we conclude that defendant forfeited his right to confront his ex-girlfriend when he killed her.
FACTS[1]
A. The shooting.
Defendant dated Brenda Avie for several years. On the night of September 29, 2002, he was staying at his grandmothers house along with several other family members. Defendant was in the garage socializing with his niece Veronica Smith, his friend Marie Banks, and his new girlfriend, Tameta Munks, when defendants grandmother called him into the house to take a telephone call from Avie. He returned to the garage and spoke to Munks, who then left.
Avie arrived at the house about 15 minutes later, after Munks had already left. She spoke with Smith and Banks in the garage for about half an hour. Smith went into the house to lie down and heard Avie and Banks leaving the garage together. A few minutes later, Smith heard defendant and Avie speaking to one another outside in a normal conversational tone. Avie then yelled Granny several times, and Smith heard a series of gunshots.
Smith and defendants grandmother ran outside and discovered defendant holding a nine-millimeter handgun and standing about 11 feet from Avie, who was bleeding and lying on the ground. Defendants grandmother took the gun from him and called 911. Smith drove defendant away from the house at his request, but he jumped out of her car and ran away after they had traveled several blocks. Defendant did not turn himself in to the police and was eventually arrested on October 15, 2002.
Avie had been shot six times in the area of her torso. Two of the wounds were fatal; one was consistent with her holding up her hand at the time she was shot; one was consistent with her having turned to her side when she was shot; and one was consistent with her being shot while she was lying on the ground. Avie was not carrying a weapon when she was shot.
Defendant testified at trial and admitted shooting Avie, but claimed he had acted in self-defense. He explained that he had a tumultuous relationship with Avie and was trying unsuccessfully to end it. Avie would get very jealous of other women, including Tameta Munks, whom he had been dating. Defendant knew that Avie had shot a man before she met him, and he had seen her threaten people with a knife. He claimed that Avie had vandalized his home and car on two separate occasions.
According to defendant, he had a typical argument with Avie when she called him on the telephone on the day of the shooting. He told her Munks was at the house and Avie said, Oh, that bitch is over there. Tell her Im on my way over there to kill her. Defendant told Munks to leave because he was worried about the situation, and Avie arrived soon afterwards. Defendant told everyone to leave and began closing up the garage where they had congregated. Avie walked away with Marie Banks, but she returned a few minutes later. Avie told defendant she knew Munks was returning and she was going to kill them both. Defendant stepped into the garage and retrieved a gun stowed under the couch. He disengaged the safety and started walking toward the back door of the house. Avie charged him, and defendant, afraid she had something in her hand, fired several shots. Defendant testified that it was dark and his eyes were closed as he was firing the gun. He claimed that he did not intend to kill her.
Marie Banks testified that she had seen defendant and Avie get into arguments before. Avie seemed angry when she came to defendants grandmothers house on the day of the shooting, and she talked to defendant for about half an hour until defendant told everyone to leave. Avie and Banks left together, but as they were walking away they saw Munks. Avie said, Fuck that bitch. Im fixin to go back. She walked back toward defendants grandmothers house and Banks went home. Banks did not see the shooting.
B. The prior incident of domestic violence.
On September 5, 2002, a few weeks before the shooting, Officer Stephen Kotsinadelis and his partner investigated a report of domestic violence involving defendant and Avie. Defendant answered the door, apparently agitated, and allowed them to enter. Avie was sitting on the bed, crying. Officer Kotsinadelis interviewed Avie while his partner spoke to defendant in a different room. Avie said she had been talking to a female friend on the telephone when defendant became angry and accused her of having an affair with that friend. Avie ended the call and began to argue with defendant, who grabbed her by the shirt, lifted her off the floor, and began to choke her with his hand. She broke free and fell to the floor, but defendant climbed on top of her and punched her in the face and head. After Avie broke free again, defendant opened a folding knife, held it about three feet away from her, and said, If I catch you fucking around Ill kill you. Officer Kotsinadelis saw no marks on Avie, but felt a bump on her head.
RELEVANT PROCEDURAL HISTORY
The trial court admitted Avies hearsay statements to Officer Kotsinadelis over defense counsels objection. The court ruled that the statements were admissible under Evidence Code section 1370, which establishes a hearsay exception for out-of-court statements describing the infliction of physical injury on the declarant when the declarant is unavailable to testify at trial and the statements are trustworthy.
The jury convicted defendant of first degree murder (Pen. Code, 187, subd. (a), 189) and found that he had personally discharged a firearm causing great bodily injury or death.[2] ( 12022.53, subd. (d).)
The Court of Appeal upheld admission of Avies statements to the police. Applying the doctrine of forfeiture by wrongdoing, the Court of Appeal held that defendant cannot be heard to complain that he was unable to cross-examine Avie about her prior, trustworthy statements to law enforcement when it was his own criminal violence that made her unavailable for cross-examination. It noted that, although the issue of forfeiture by wrongdoing was not litigated below, evidence of Avies hearsay statements was admitted under a statutory hearsay exception that appeared to be valid at the time of defendants pre-Crawford (Crawford v. Washington (2004) 541 U.S. 36) trial. Nevertheless, the court addressed the forfeiture issue because it was undisputed that Avie was unavailable to testify because of her death and that her death was the result of defendants actions.
We granted defendants petition for review to decide whether the Court of Appeal properly applied the forfeiture by wrongdoing doctrine.
DISCUSSION
The confrontation clause of the Sixth Amendment to the United States Constitution provides that, [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.
In Crawford v. Washington, supra, 541 U.S. 36 (Crawford), the United States Supreme Court held that the confrontation clause (as envisioned by the Framers of the Constitution) bars the admission of out-of-court testimonial statements except when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford overruled Ohio v. Roberts (1980) 448 U.S. 56 (Roberts), which for 24 years provided the framework governing the admissibility of statements from witnesses who did not testify at trial. (Crawford, supra, 541 U.S. at pp. 61-68) Roberts had permitted the admission of hearsay statements of unavailable witnesses, without violating the confrontation clause, if those statements fell within a firmly rooted hearsay exception or contained particularized guarantees of trustworthiness. (Roberts, supra, 448 U.S. at p. 66.) Holding that hearsay rules and judicial determinations of reliability no longer satisfied a defendants confrontation right, Crawford announced: Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. (Crawford, supra, 541 U.S. at pp. 68-69.)
Although Crawford dramatically departed from prior confrontation clause case law, it renounced only those exceptions to the confrontation clause that purported to assess the reliability of testimony. (Crawford, supra,541 U.S. at p. 62.) The court noted that forfeiture by wrongdoing, an equitable principle, remains a valid exception to the confrontation clause: [The Roberts test] is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability. See Reynolds v. United States, 98 U.S. 145, 158-159, 25 L.Ed. 244 (1879). (Crawford, supra, 541 U.S. at p. 62.)
Here, there is no dispute that the victims prior statements were testimonial in nature. (See Davis v. Washington (2006) __ U.S. __ [126 S.Ct. 2266, 2273-2274, 2278-2279] (Davis) [victims statements to responding police officer during questioning were testimonial; primary purpose of questioning was to establish facts for later prosecution].)
Defendant acknowledges that the forfeiture by wrongdoing doctrine is an exception to the confrontation clause, but argues that it is inapplicable here because defendant did not kill the victim with the intent of preventing her testimony at a pending or potential trial. Rather, where as in this case, defendant killed the victim for unrelated personal reasons, the confrontation clause bars admission of the victims prior testimonial statements. To answer defendants claim, we first examine the development of the forfeiture by wrongdoing doctrine.
Although this court has not addressed the forfeiture by wrongdoing doctrine, federal and other state courts have affirmed its validity. The United States Supreme Court first applied the doctrine of forfeiture by wrongdoing in Reynolds v. United States, supra, 98 U.S. 145, 158-159 (Reynolds). In Reynolds (the only forfeiture case cited in Crawford), the defendant was on trial for bigamy. When the court officer contacted Reynolds in an attempt to serve a subpoena on his second wife (who had previously testified about the bigamy offense in an earlier trial), Reynolds would not divulge her location and stated that his second wife would not appear at the trial. Over the defendants confrontation clause objection, the trial court allowed the second wifes testimony from the defendants earlier trial. (Id. at pp. 158-161.)
In applying the doctrine of forfeiture by wrongdoing, the court reasoned, The 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 [the defendants] own wrongful procurement, [the defendant] 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. . . . [I]f [a defendant] voluntarily keeps the witnesses away, he cannot insist on his [confrontation] 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. (Reynolds, supra, 98 U.S. at p. 158.) The court further explained, The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong; and, consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony. (Id. at p. 159.)
Notably, in describing the rule, the court did not suggest that the rules applicability hinged on Reynoldss purpose or motivation in committing the wrongful act.[3] Applying that rule to the facts of the case, the court upheld the trial courts factual finding that Reynolds had kept his wife from testifying and ruled that the prior testimony was properly admitted. (Reynolds, supra, 98 U.S. at pp. 158-161.)
The high court recently affirmed the equitable nature of the forfeiture doctrine. In Davis, the court stated, 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, 158 L.Ed.2d 177 (citing Reynolds, 98 U.S., at 158-159, 25 L.Ed. 244). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. (Davis, supra, 126 S.Ct. at p. 2280.)
Although the United States Supreme Court has cited Reynolds and addressed this doctrine infrequently, the lower federal courts began applying the forfeiture rule extensively in the context of witness tampering cases.[4]Starting in the 1960s and 1970s, the federal government placed greater emphasis on the prosecution of organized crime and drug activity; as many of these prosecutions involved reluctant witnesses who experienced great pressure not to testify, forfeiture by wrongdoing became more central to prosecution efforts. (King-Ries, Forfeiture by Wrongdoing: A Panacea for Victimless Domestic Violence Prosecutions (2006) 39 Creighton L. Rev. 441, 452-453.)
United States v. Carlson (8th Cir. 1976) 547 F.2d 1346, was the first modern federal circuit court case to use the defendants wrongdoing against a witness to resolve a confrontation clause issue. There, the witness purchased drugs from the defendant, but before trial refused to testify despite having been granted immunity. The witness related that he feared reprisals, but only indirectly implicated the defendant in the threats. (Id. at pp. 1352-1353.) The court held that the defendant, by intimidating the witness into not testifying and causing the witnesss unavailability at trial, was barred from raising a confrontation clause objection to the admission of the witnesss grand jury testimony. (Id. at pp. 1358-1359.)
Other federal cases involved witness tampering where a defendant murdered or participated in the murders of a witness (see, e.g., United States v. Dhinsa (2d Cir. 2001) 243 F.3d 635, 650-654; United States v. Cherry (10th Cir. 2000) 217 F.3d 811, 813, 820; United States v. Emery (8th Cir. 1999) 186 F.3d 921, 925; United States v. White (D.C. Cir. 1997) 116 F.3d 903, 911-912; United States v. Mastrangelo (2d Cir. 1982) 693 F.2d 269, 271-273; United States v. Thevis (5th Cir. 1982) 665 F.2d 616, 630) or threatened a witness. (See, e.g., United States v. Balano (10th Cir. 1979) 618 F.2d 624, 628-629; United States v. Carlson, supra, 547 F.2d at p. 1353.) In the federal cases, the courts applied the forfeiture by wrongdoing doctrine where the defendant, by a wrongful act, was involved in or responsible for procuring the unavailability of a hearsay declarant, and did so, at least in part, with the intention of making the declarant unavailable as an actual or potential witness against the defendant. (United States v. Dhinsa, supra, 243 F.3d at pp. 653-654; United States v. Emery, supra, 186 F.3d at pp. 925-927; United States v. Houlihan (1st Cir. 1996) 92 F.3d 1271, 1279-1280; Steele v. Taylor (6th Cir. 1982) 684 F.2d 1193, 1198-1199, 1202; United States v. Thevis, supra, 665 F.2d at p. 630; United States v. Balano, supra, 618 F.2d at pp. 628-629.) In many of these cases, it was held that the defendants were barred from objecting under both the rule against hearsay and the confrontation clause. (See, e.g., United States v. Carlson, supra, 547 F.2d at pp. 1353-1355; United States v. White, supra, 116 F.3d at pp. 912-913; United States v. Mastrangelo, supra, 693 F.2d at p. 272.)
The forfeiture by wrongdoing doctrine, as articulated by the lower federal courts, was codified with regard to federal hearsay rules in 1997 with the adoption of Federal Rules of Evidence, rule 804(b)(6) (28 U.S.C.). (United States v. Scott (7th Cir. 2002) 284 F.3d 758, 762.) That rule states, Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: [] . . . [] (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. (Fed. Rules Evid., rule 804(b)(6), 28 U.S.C.) The text of the rule was based on United States v. Thevis, which identified two elements: (1) the defendant caused the witnesss unavailability (2) for the purpose of preventing that witness from testifying at trial. (United States v. Thevis, supra, 665 F.2d at p. 633, fn. 17; see Flanagan, Forfeiture by Wrongdoing and Those Who Acquiesce in Witness Intimidation: A Reach Exceeding Its Grasp and Other Problems with Federal Rule of Evidence 804(b)(6) (2003) 51 Drake L.Rev. 459, 477.) The adoption of a specific intent requirement limited the federal hearsay rule to witness tampering cases. (Ibid.)
A similar pre-Crawford development of the forfeiture by wrongdoing rule occurred in the states. As with the federal courts, the state courts generally applied the rule when the defendant intended to, and did, tamper with an actual or potential witness to prevent the witness from cooperating with the authorities or testifying at trial. (See, e.g., State v. Valencia (Ariz. Ct. App. 1996) 924 P.2d 497, 499-503; State v. Henry (Conn.App.Ct. 2003) 820 A.2d 1076, 1087-1088; Devonshire v. United States (D.C. 1997) 691 A.2d 165, 166; State v. Hallum (Iowa 2000) 606 N.W.2d 351, 358; State v. Gettings (Kan. 1989) 769 P.2d 25, 27-29; State v. Magouirk (La. Ct. App. 1988) 539 So.2d 50, 64-66; State v. Black (Minn. 1980) 291 N.W.2d 208, 213-214; State v. Sheppard (N.J. Super. Ct. Law Div. 1984) 484 A.2d 1330, 1345-1348; Holtzman v. Hellenbrand (N.Y.App.Div. 1983) 460 N.Y.S.2d 591, 597.)
Crawford reshaped the confrontation landscape: testimonial evidence that previously had been admitted under firmly rooted hearsay exceptions, or that met comparable reliability standards, became inadmissible unless the defendant had the opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 60-61, 68.) Previously, the primary purpose of the confrontation clause was only to prevent the introduction of unreliable hearsay that fell outside a firmly rooted hearsay exception and that did not otherwise satisfy comparable reliability standards. (Roberts, supra, 448 U.S. at p. 66.) After Crawford, the response of many courts (including the Court of Appeal in this case) was to focus on the equitable forfeiture rationale which could eliminate the need for evidence of witness tampering and broaden the scope of the rule to all homicide cases.
State v. Meeks (Kan. 2004) 88 P.3d 789 (Meeks) was the first post-Crawford case. There, the defendant shot James Green, the victim, during an argument and fistfight. About 10 minutes after the shooting, Green identified the defendant as the shooter to an officer at the scene, but died soon thereafter. During trial, the prosecution introduced Greens statement identifying the defendant to the police. Although the court noted that the victims response to the officers question was arguably testimonial, Meeks found it unnecessary to decide that issue. Instead, it held that the defendant forfeited his right to confrontation by killing the witness, Green. (Meeks, supra,88 P.3d at pp.793-794.) Noting that the high court in Crawford continued to accept the [Reynolds] rule of forfeiture by wrongdoing which extinguishes confrontation claims on essentially equitable grounds, Meeks relied on the reasoning set forth in Reynolds that if a witness is absent by his own [the accuseds] wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. (Meeks, supra,88 P.3d at p.794.)
In United States v. Mayhew (S.D. Ohio 2005) 380 F.Supp.2d 961 (Mayhew), the court applied the forfeiture by wrongdoing doctrine to facts similar to those in Meeks. In Mayhew, the defendant kidnapped and shot the victim. While the victim was in the ambulance, a police officer interviewed her. The victim related that the defendant had earlier killed her mother and her mothers fianc, and identified the defendant as her kidnapper and shooter. The victim died soon thereafter at the hospital. (Id. at pp. 963, 965.) The federal district court in Mayhew ruled that the victims statements were testimonial in nature, but admissible. (Id. at pp. 965-966.) Relying on Crawfords discussion of the equitable principles underlying the forfeiture doctrine, it reasoned that, Defendant, in making the witness unavailable for testimony, forfeited his rights under the confrontation clause by his own wrongdoing. As the Sixth Circuit Court of Appeals has held, a defendant only forfeits his confrontation right if his own wrongful conduct is responsible for his inability to confront the witness. [United States v.] Cromer [(6th Cir. 2004)] 389 F.3d [662,] 679 (citing Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo.L.J. 1011, 1031 (1998)). (Mayhew, supra, 380 F.Supp.2d at p. 966.)
In United States v. Garcia-Meza (6th Cir. 2005) 403 F.3d 364 (Garcia-Meza), a case very similar to this one, the defendant admitted that he was responsible for his wifes death, but claimed that he was not guilty of first degree murder because he was too intoxicated to have premeditated the killing. (Id. at pp. 367-368.) The prosecution introduced evidence of a prior incident during which police officers responded to a call about an assault. When the officers arrived, they found the defendants wife very upset and in pain with numerous cuts and bruises on her body. The wife told the officers that the defendant had repeatedly punched her and threatened to kill her because she had talked to a former boyfriend earlier in the day. The district court admitted the assault evidence to establish motive, intent, and capacity to commit murder. (Ibid.)
Although not deciding whether the wifes statements to the officers were testimonial, the Sixth Circuit Court of Appeals upheld the admission of the statements. Relying on the equitable principles outlined in Crawford and Reynolds, the court reasoned, [D]efendant admitted that he killed [his wife], thereby procuring her unavailability to testify. The dispute at trial concerned not whether he was the one to stab her, but whether he acted with premeditation to support a conviction of first degree murder. Under these circumstances, there is no doubt that the Defendant is responsible for Kathleens unavailability. Accordingly, he has forfeited his right to confront her. (Garcia-Meza, supra, 403 F.3d at p. 370.)
Similarly, in People v. Moore (Colo.Ct. App. 2004) 117 P.3d 1 (Moore), a murder case, the Colorado Court of Appeals upheld the admission of the defendants wifes out-of-court statement implicating the defendant in a prior instance of domestic violence. Citing to Crawfords approval of forfeiture by wrongdoing, the court reasoned that, because there was no dispute that the victim was unavailable to testify because of her death and that her death was the result of the defendants actions, the defendant should not benefit from his wrongdoing. (Moore, supra, 117 P.3d at p. 5.) Thus, he forfeited his right to claim a confrontation violation in connection with the admission of the victims statements into evidence. (Ibid.)
In short, Meeks and Mayhew involved out-of-court statements relating to the charged offense itself. Garcia-Meza and Moore involved extrajudicial statements relating to a prior incident, similar to this case. Significantly, the courts in these cases applied the forfeiture by wrongdoing doctrine although there was no indication the defendants killed the victims with the intent of preventing testimony at a future trial. (See also People v. Bauder (Bauder) (Mich.Ct.App. 2005) 712 N.W.2d 506, 514-515.)
Defendant contends that courts have traditionally applied the forfeiture doctrine only in the context of witness tampering cases, and that the federal rules have codified this approach. Thus, according to defendant, the Court of Appeal in this case and the above post-Crawford cases improperly expanded the doctrine by eliminating an intent-to-prevent-testimony requirement.
In fact, courts have disagreed over this requirement. Some state and federal courts have stated that the intent-to-silence requirement is only mandated by the federal rules and not by the Constitution. (See, e.g., Garcia-Meza, supra, 403 F.3d at p. 370 [Though the Federal Rules of Evidence may contain [the intent-to-silence] requirement, see Fed. R. Evid. 804(b)(6), the right secured by the Sixth Amendment does not . . . .]; United States v. Miller (1997) 116 F.3d 641, 668 [Although a finding that [defendants] purpose was to prevent [a declarant from] testifying, [citation], is relevant, such a finding is not required]; Bauder, supra, 712 N.W.2d at pp. 514-515 [agreeing with Garcia-Meza]; Gonzalez v. State (Tex.Crim.App. 2004) 155 S.W.3d 603, 611 [stating that while some courts have adopted the intent-to-silence requirement, we see no reason why the [forfeiture] doctrine should be limited to such cases].) The Sixth Circuit Court of Appeals explained: There is no requirement that a defendant who prevents a witness from testifying against him through his own wrongdoing only forfeits his right to confront the witness where, in procuring the witnesss unavailability, he intended to prevent the witness from testifying. . . . The Supreme Courts recent affirmation of the essentially equitable grounds for the rule of forfeiture strongly suggests that the rules applicability does not hinge on the wrongdoers motive. The Defendant, regardless of whether he intended to prevent the witness from testifying against him or not, would benefit through his own wrongdoing if such a witnesss statements could not be used against him, which the rule of forfeiture, based on principles of equity, does not permit. (Garcia-Meza, supra, 403 F.3d at pp. 370-371.) Similarly, the Court of Appeal here stated, we see no reason why the [forfeiture] doctrine should be limited to [intent-to-silence] cases.
Other courts have stated that the intent-to-silence requirement is an element of their forfeiture by wrongdoing doctrines, although stopping short of holding that the intent requirement is constitutionally compelled. (See, e.g., United States v. Houlihan, supra, 92 F.3d at p. 1280; United States v. Thevis, supra, 665 F.2d at p. 633, fn. 17; State v. Romero (N.M. 2006) 133 P.3d 842, 850-855; Commonwealth v. Edwards (Mass. 2005) 830 N.E.2d 158, 170; People v. Maher (N.Y. 1997) 677 N.E.2d 728, 730-731; but see State v. Alvarez-Lopez (N.M. 2004) 98 P.3d 699, 704-705.)
Defendants argument relating to the intent requirement rests on the premise that the forfeiture by wrongdoing doctrine is, in essence, not based on broad forfeiture principles, but instead on waiver principles. Defendant points out that some cases have referred to the rule as the waiver by wrongdoing doctrine. (See, e.g., United States v. Cherry, supra, 217 F.3d at p. 815; United States v. Houlihan, supra, 92 F.3d at pp. 1278-1279; United States v. Aguiar (2nd Cir. 1992) 975 F.2d 45, 47; United States v. Thevis, supra, 665 F.2d at p. 630; but see Steele v. Taylor, supra, 684 F.2d at p. 1201, fn. 8 [waiver concept is legal fiction; defendant simply does a wrongful act that has legal consequences that he may or may not foresee].) The underlying premise of those cases is that a defendant who intentionally prevents an actual or potential witness from testifying at a trial knows that the witness is no longer available and cannot be cross-examined, and thus, has impliedly, if not expressly, waived his confrontation rights by his misconduct. (Thevis, supra, 665 F.2d at p. 630.)
However, the United States Supreme Court has characterized the rule in question as a forfeiture that extinguishes confrontation claims on essentially equitable grounds, not a waiver. (Crawford, supra, 541 U.S. at p. 62.) Although applied to the facts of a witness tampering case, Reynolds described the rule without reference to a defendants motivation. (Reynolds, supra, 98 U.S. at p. 158 [If, therefore, when absent by [a defendants wrongful] procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated].) The rule, as enunciated by the high court, is based on two broad equitable principles: (1) [t]he rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong; and (2) 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. (Reynolds, supra, 98 U.S. at pp. 159, 158.) Thus, wrongfully causing ones own inability to cross-examine is what lies at the core of the forfeiture rule.
As in Reynolds, many courts applying the rule (even in the context of witness tampering cases), emphasize the equitable aspects of the rule rather than the defendants underlying motives in procuring the witnesss absence. (See, e.g., United States v. Thompson (7th Cir. 2002) 286 F.3d 950, 962, quoting United States v. White, supra, 116 F.3d at p. 911 [ defendant who has removed an adverse witness is in a weak position to complain about losing the chance to cross-examine him ]; United States v. Emery, supra, 186 F.3d at p. 926 [defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness]; United States v. Rouco (11th Cir. 1985) 765 F.2d 983, 995 [defendant waived his right to cross-examine [the victim] by killing him. The Sixth Amendment does not stand as a shield to protect the accused from his own misconduct or chicanery ]; United States v. Mayes (6th Cir. 1975) 512 F.2d 637, 651 [defendant cannot now be heard to complain that he was denied the right of cross-examination and confrontation when he himself was the instrument of the denial]; Steele v. Taylor, supra, 684 F.2d at p. 1202 [defendant cannot prefer the laws preference [for live testimony over hearsay] and profit from it . . . while repudiating that preference by creating the condition that prevents it].)
TO BE CONTINUED AS PART II..
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[1] As the relevant facts are undisputed, they are taken directly from the Court of Appeals opinion.
[2] Unless otherwise stated, all statutory references are to the Penal Code.
[3]Reynolds reviewed antecedent English common law cases (Lord Morleys Case (1666) 6 How. St. Tr. 770, Harrisons Case (1692) 12 How. St. Tr. 833, and Regina v. Scaife (Q.B. 1851) 117 Eng. Rep. 1271) and early American antecedents of the forfeiture cases (Drayton v. Wells (1819) 10 S.C.L. (1 Nott & McC.) 409; Williams v. The State (1856) 19 Ga. 403). Although the facts therein involved witnesses and acts occurring after the witnesses had been deposed or had testified, those cases did not specifically address the intention of the defendants to prevent the witnesses testimony at a pending trial. Instead, the focus was on whether there was adequate proof that the defendants caused the witnesses absence.
[4] Between Reynolds and Crawford, the United States Supreme Court cited Reynolds infrequently and generally in the context of the admission of an unavailable witnesss prior sworn testimony at a proceeding which the defendant had attended. (See Diaz v. United States (1912) 223 U.S. 442, 452; West v. Louisiana (1904) 194 U.S. 258, 265; Motes v. United States (1900) 178 U.S. 458, 471-472; Mattox v. United States (1895) 156 U.S. 237, 242.)
