2010-M-141             State of Minnesota, Respondent, vs. Moua Her, Appellant.

MAJORITY: The district court convicted Her of first-degree domestic abuse murder and imposed a life sentence. 

Her appealed his conviction arguing that his rights under the Confrontation Clause of the Sixth Amendment were violated when the district court allowed the State to introduce evidence of Vang’s March 23, 2004, statements to a police officer. 

We affirmed Her’s conviction and held that because Her intentionally killed Vang, the forfeiture-by

wrongdoing doctrine applied and estopped Her from raising his Confrontation Clause rights.  Her petitioned for a writ of certiorari in the U.S. Supreme Court, and the Supreme Court vacated and remanded for reconsideration in light of Giles v. California.

Because Giles v. California changed the law in Minnesota regarding the standard for application of the forfeiture-by-wrongdoing doctrine in a murder case, remand to the district court for an evidentiary hearing is required to assess whether appellant forfeited his Confrontation Clause claim.    Remanded for further proceedings consistent with this opinion

DISSENT:  Justice Page opined:  “I respectfully dissent.  Our court rests its remand decision on the false conclusion that Giles v. California, 128 S. Ct. 2678 (2008), announced a new rule of law changing the requirements of the forfeiture-by-wrongdoing doctrine.  Based on that false conclusion, our court concludes that remand is necessary to give the State an opportunity to develop a factual record regarding Her’s intent to procure Vang’s unavailability.

Such a reading of Giles is without legal support and is absurd.  The stark reality, which the court would like to ignore, is that Giles was not an announcement of a new rule or principle of law but rather the rejection of various courts’ attempts to create a murder exception, lacking any basis in common law, to the forfeiture-by-wrongdoing doctrine. 

Any question on this point was answered by the Giles Court itself when it said, “We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter.  The judgment of the California Supreme Court is vacated.

To be clear, in Giles, the United States Supreme Court noted that since the 1600s the forfeiture-by-wrongdoing doctrine has permitted “the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”  The Court further noted that “[t]he manner in which the rule [has been] applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.”  The Court concluded that in cases in which the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying, the testimony was excluded unless another exception applied.

DISSENT:  Justice  Paul Anderson opined:  “I join in the dissent of Justice Page, but I write separately because I see the point of disagreement between the majority and the dissent in a slightly different way.  At its core, the disagreement between the majority and the dissent is over what it means to announce a new rule or principle of law.  The majority takes the position that when the United States Supreme Court interprets the United States Constitution to grant broader protections than we have granted, the Supreme Court’s interpretation represents a new principle of law.  I disagree.  I would characterize our interpretation of the U.S. Constitution in State v. Langley, 354 N.W.2d 389 (Minn. 1984), as having been a misinterpretation, and characterize the Supreme Court’s interpretation in Giles v. California, 128 S. Ct. 2678 (2008), as a correction of that misinterpretation, not as the announcement of a new principle of law.  The Supreme Court is, after all, the final interpreter of the U.S. Constitution.  That said,

I would not go as far as Justice Page to call the majority’s characterization absurd, nor would I characterize our misinterpretation of the U.S. Constitution in Langley as a perversion.

 Gildea  (Magnuson, Meyer, Barry Anderson, and Dietzen)

               Dissent:  Page

Dissent:  Paul Anderson

[MURDER]