2008-M-077             State of Minnesota, Respondent, vs. Moua Her, Appellant.

MAJORITY:  Following a jury trial in Ramsey County District Court, appellant Moua Her was convicted of first-degree domestic abuse murder for the stabbing death of his estranged wife, Sheng Vang.  Her filed a direct appeal to this court, arguing that the district court erred on Confrontation Clause and hearsay grounds by admitting Vang's out-of-court statements to family and police, that the evidence presented at trial was insufficient to convict him of first-degree domestic abuse murder, and that the district court erred when it denied his motion for a mistrial.  We affirm.

First, the Court held that victim’s statements to family members were non-testimonial and their

admission at trial did not violate appellant's Confrontation Clause rights.

Second, the Court held that the State failed to prove that victim's statement to police was non-testimonial, but appellant forfeited his right to confront victim by intentionally killing her.

Third, the Court held that the district court acted within its discretion when it admitted at trial

Victim’s out-of-court statements of abuse to family members under the residual hearsay

exception.  

Fourth, the Court held that the district court acted within its discretion when it admitted at trial victim’s out-of-court statement of abuse to police under the excited utterance hearsay exception.  

Fifth, the Court held that the State provided sufficient evidence for a reasonable jury to find that appellant engaged in a past pattern of domestic abuse that supported his conviction for first-degree domestic abuse murder.

Sixth, the Court held that the district court did not abuse its discretion when it denied appellant's

motion for a mistrial.     Affirmed

CONCUR:  Justices Page and Paul Anderson opined:  “Although I would affirm Her‟s conviction, I would do so on different grounds.  I would not, as the court does, stretch beyond all bounds the forfeiture-by-wrongdoing doctrine in order to save this conviction.  First, there is no need to apply the forfeiture doctrine; Vang’s statements to the police do not run afoul of the Confrontation Clause because they are not testimonial.  More importantly, the court's determination that application of the forfeiture doctrine requires no showing that the defendant intended to procure the unavailability of the victim is simply wrong.

Gildea (Russell Anderson, Page, Paul Anderson, Meyer, Barry Anderson)

Concur:  Page and Paul Anderson

Took no part:  Dietzen

[MURDER}