Criminal Practice – First Impression – Doctrine of Forfeiture – Constitutional – Confrontation Clause – Witness Intimidation

State v. Weathers (Lawyers Weekly No. 12-07-0338, 9 pp.) (Linda Stephens, J.) Appealed from Mecklenburg County Superior Court. (Hugh B. Lewis, J.) N.C. App. Full-text opinion.

Holding: When defendant threatened the life of a witness and his family, defendant forfeited his right to cross-examine the witness.

The trial court did not abuse its discretion when it denied defendant’s motion for a mistrial.

Under the doctrine of forfeiture by wrongdoing, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. The doctrine is codified in Federal Rule of Evidence 804(b)(6).

The N.C. Rules of Evidence have no similar provision, and the doctrine of forfeiture has not been addressed directly in our state’s case law.

Here, the trial court followed the approach adopted Utah v. Poole, 232 P.3d 519 (Utah 2010), which focused on the defendant’s intent to prevent the witness from testifying.

The trial court made several findings regarding the overwhelming evidence of defendant’s wrongful acts and his intent. First, the witness disclosed that, as they were being transported to the courthouse for trial, defendant threatened to kill the witness and his family. A detention officer also testified that she heard defendant threaten the witness.

Second, in a taped interview with homicide detectives and assistant district attorneys, the witness repeatedly expressed his concern that his life and the lives of his family members were in jeopardy.

Finally, defendant made several phone calls that evidenced his intent to intimidate the witness. In one call to his grandmother, defendant repeatedly referred to the witness as “nigger” and stated he would “straighten this nigger out,” a reference to intimidating the witness to keep him quiet. Also during the phone calls, defendant joked about the “slick moves” that he used to prevent the witness from testifying.

In other calls, defendant instructed several acquaintances to come to court to intimidate the witness while he was testifying. One of the parties defendant spoke to said he would be in court on the morning of March 2, 2011. On that date, the witness, who had already been hesitant and fearful on the stand, became even more emotional and “broke down” when he saw a young man dressed in street clothes indicative of gang attire enter the courtroom.

Although the witness did not know about the phone calls, they were highly relevant in determining whether to apply the doctrine of forfeiture by wrongdoing in that they showed defendant (1) wanted to intimidate the witness and prevent him from testifying, (2) formed a plan to intimidate the witness by having defendant’s acquaintances appear in the court room while the witness was on the stand, and (3) believed his “slick moves” would be effective in intimidating the witness.

The evidence before the trial court was more than sufficient to establish defendant’s efforts and intent to intimidate the witness.

We reject defendant’s contention that application of the doctrine was improper because the witness never testified that he chose to remain silent out of fear of defendant. It would be nonsensical to require that a witness testify against a defendant in order to establish that the defendant intimidated the witness into not testifying. Defendant cites no authority for the proposition that a trial court cannot make reasonable inferences about the cause of a witness’s refusal to testify based upon the facts and circumstances before it.

No error.