Giles v. California Gets Her’s Forfeiture by Wrongdoing Issue Returned to Trial Court For Evidentiary Hearing

State v. Her, Minn.S.Ct., 5/6/2010.  A jury convicted Mr. Her of first degree domestic abuse murder of his estranged wife; the trial court imposed a life sentence.  On the first appeal, State v. Moua Her (Her I), 750 N.W.2d 258, 264 (2008), Mr. Her argued that the trial court violated his confrontation rights by admitting evidence of his estranged wife’s statements to a police officer.  The appellate court affirmed, but the United States Supreme Court vacated and remanded for reconsideration in light of Giles v. California, 128 S. Ct. 2678 (2008).

Giles held that to invoke the forfeiture by wrongdoing doctrine the state must show not only that a defendant was responsible for the killing but that he committed the killing with intent to prevent the victim from testifying against him.

Among other arguments, the state argued that it was necessary to send the case back to the trial court for an evidentiary hearing on Mr. Her’s intent at the time of the murder.  Mr. Her opposed this suggestion, arguing, in part, that the state was on notice of a requirement to establish that Mr. Her killed his estranged wife for the purpose (in part, at least) to prevent her from testifying against him.  The appellate court rejects this argument, claiming that before Giles, Minnesota did not require this additional finding in order to invoke the forfeiture by wrongdoing doctrine.

Next, Mr. Her argued that no remand was necessary because the trial record contained sufficient evidence that he did not kill his estranged wife to keep her from being a witness against him.  Implicit in this argument is the assertion that intent to silence must be the sole motive for the murder in order for the doctrine to apply.  The appellate court does not decide this question but it does return the case to the trial court.

Justices Page and Paul Anderson dissent, arguing that the law well before – like in the 1600’s – obligated the state to prove that Her’s intent was to prevent his estranged wife from testifying.  That being the case, the state could not now ask for a re-do.