Mere Hesitancy to Testify Does Not Support “Unavailability” for Crawford Purposes

State v. Cox, Minn.S.Ct., 3/18/2010.  A jury convicted Mr. Cox of the shooting death of a cab driver.  Mr. Cox, a Mr. McIntyre, and S.T. had been hanging out earlier in the evening at a local bowling alley, after which the three of them went to S.T.’s apartment complex.  Police searched S.T.’s apartment where they found a gun; some of the cartridge casings found at the homicide scene were fired by this gun.  Midway through trial, S.T., who was under subpoena, told the prosecutors that she was afraid to testify for fear of harm to herself or her child.  In response, the state asked to introduce her grand jury testimony as substantive evidence.  Her grand jury testimony incriminates Mr. Cox.

The trial court held a hearing on this request.  Mr. Cox, it turned out, had made phone calls from the jail to his mother, asking her to ascertain S.T.’s current address; he also sent S.T. a letter in which he instructed her to call someone.  Mom not only got the address but went over and met with S.T. in the parking lot.  Cox’s mom tearfully asked S.T. not to testify because her son was “not going to be able to do the time.”  Mom also said that she would “do whatever she had to do.”  The trial court found that S.T. was “extremely reluctant” to testify, even though there had not been an explicit threat to her.  When asked if she would testify in the face of a possible contempt citation, S.T. said that she didn’t know.  The trial court nonetheless concluded that S.T. was unavailable to testify and that Mr. Cox had forfeited his right to confront her.

First up is whether Mr. Cox forfeited his right to confront S.T.  Davis v. Washington,  547 U.S. 813, 833 (2006); Giles v. California, __ U.S. __, 128 S. Ct. 2678 (2008).  Under Giles the forfeiture by wrongdoing exception requires that the state 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.

Here, the state failed to prove that S.T. was unavailable to testify.  She was under subpoena, responded to that subpoena, and testified at the hearing.  Although hesitant to testify, she did not say that she would refuse to testify and the state never called her to testify to see what she would really do.  For those reasons, the state failed in its proof of unavailability.  The trial court thus erred in admitting her grand jury testimony.  Because the state did not argue that any such error was harmless, Mr. Cox gets a new trial.