North Carolina Criminal Law NC Criminal Law

Under the new Crawford confrontation clause analysis, testimonial hearsay statements by witnesses who do not appear at trial cannot be admitted unless the prosecution shows unavailability and a prior opportunity for cross-examination. As discussed in more detail in my paper here, the U.S. Supreme Court has recognized a forfeiture by wrongdoing exception to the Crawford rule. The exception extinguishes confrontation claims on the equitable grounds that a person should not be able to benefit from his or her wrongdoing. Forfeiture by wrongdoing applies when a defendant engages in a wrongful act that prevents the witness from testifying, such as threatening, killing, or bribing the witness. When the doctrine applies, the defendant is deemed to have forfeited his or her confrontation clause rights. Put another way, if the defendant is responsible for the witness’s absence at trial, he or she cannot complain of that absence.

The recent case of State v. Weathers is the first North Carolina case to apply the forfeiture by wrongdoing exception. In that case, the defendant was charged with first-degree murder and kidnapping. At trial an eyewitness named Johnny Wilson was a key witness for the State. When Wilson began his testimony, he was visibly upset. When his testimony resumed two days later, Wilson quickly became distraught and indicated he did not wish to make any other statements. Wilson, who was shaking, laid his head down on the witness stand and began to cry. He became even more upset when a young man dressed in street clothes entered the courtroom. When asked if he had been threatened, Wilson responded, “I don’t even want to answer that question.” In light of Wilson’s condition, the trial court excused him from further testimony. At the prosecution’s request, the court called a hearing on whether the doctrine of forfeiture applied so that Wilson’s testimony would remain on the record. Meanwhile, the defense moved for a mistrial. At the hearing, Wilson disclosed that as they were being transported to the courthouse for trial, the defendant threatened to kill Wilson and his family. A detention officer testified to having heard this threat. Also, in a taped interview with detectives and prosecutors, Wilson repeatedly expressed concern for his life and the lives of his family members. Finally, the defendant made several phone calls showing an intent to intimidate Wilson. In one call to his grandmother, the defendant repeatedly referred to Wilson as “nigger” and stated he would “straighten this nigger out.” During the phone calls, the defendant joked about the “slick moves” he used to prevent Wilson from testifying. In other calls, the defendant instructed several acquaintances to come to court to intimidate Wilson while he was testifying. One of those acquaintances said he would be in court on a specified day. On that date, Wilson, 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. Having heard this evidence, the trial court rejected the defendant’s motion for a mistrial and directed that Wilson’s testimony remain on the record. The trial court found that the defendant had “committed wrongful acts that were undertaken with the intention of preventing potential witnesses from testifying and has in fact caused a potential witness, Johnny Wilson, to refuse to testify.”

On appeal, the defendant argued that the trial court erred by denying the mistrial motion. Specifically, he asserted that his actions were not designed to prevent Wilson from testifying and were not egregious enough to trigger forfeiture of his confrontation rights. The court of appeals disagreed finding that the record supported a finding of forfeiture by wrongdoing. In its analysis the court specifically rejected the defendant’s argument that application of the doctrine was improper because Wilson never testified that he chose to remain silent because he was afraid of the defendant. On this point the court stated:

It would be nonsensical to require that a witness testify against a defendant in order to establish that the defendant has intimidated the witness into not testifying. Put simply, if a witness is afraid to testify against a defendant in regard to the crime charged, we believe that witness will surely be afraid to finger the defendant for having threatened the witness, itself a criminal offense.

Of course in this case Wilson did in fact testify at the hearing. In any event, the court went on to find the evidence at hand “egregious” and that the trial court properly determined that the defendant had forfeited his right to confront Wilson. Finally, it held that the trial court did not abuse its discretion in refusing to grant a mistrial.

In part because the facts of Weathers were so convincing, the case doesn’t add a lot to our understanding of what types of more subtle conduct will suffice to support a finding of forfeiture by wrongdoing. Also, because the trial court applied a clear, cogent, and convincing evidence standard of proof, the court of appeals did not have occasion to decide whether the lesser preponderance standard might apply to the forfeiture determination. Finally, because no issues were raised on appeal about the procedural aspects of the forfeiture hearing, we’re no further along with our understanding of those issues. What the case does provide, however, is a ringing endorsement of the forfeiture by wrongdoing doctrine and a set of compelling facts to which it applies.