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State v. Shaka

Court of Appeals of Minnesota

April 29, 2019

State of Minnesota, Respondent,
v.
Ronnie Bila Shaka, Appellant.

          Hennepin County District Court File No. 27-CR-17-24852

          Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Kelly O'Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Reilly, Presiding Judge; Rodenberg, Judge; and Bratvold, Judge.

         SYLLABUS

         To establish that a defendant's wrongful conduct caused the unavailability of a witness under the forfeiture-by-wrongdoing exception, the state may rely on direct or circumstantial evidence.

          OPINION

          BRATVOLD, JUDGE.

         Appellant challenges his convictions of violating a domestic-abuse no-contact order (DANCO) under Minn. Stat. § 629.75, subd. 2(d)(1) (2016). Appellant argues that the district court committed "reversible error when it . . . allow[ed] the State to present testimonial hearsay statements by a non-testifying witness under the forfeiture-by-wrongdoing exception to the confrontation clause," because the state failed to establish that appellant "caused, or acquiesced to another causing, the witness to be unavailable to testify." Appellant also raises several issues in his pro se supplemental brief.

         We conclude that the district court did not clearly err in determining that appellant procured the witness's unavailability at trial and, therefore, that the forfeiture-by-wrongdoing exception applied in his case. We also conclude that the issues raised in appellant's pro se brief lack merit. Accordingly, we affirm.

         FACTS

         Appellant Ronnie Bila Shaka and S.S. married in October 2015, and have one child together. A Dakota County district court issued a criminal DANCO against Shaka, prohibiting him from contacting S.S. "directly, indirectly or through others, in person, by telephone, in writing, electronically, or by any other means." Shaka was served with the DANCO on December 2, 2016, and the DANCO was effective for one year.

         In March 2017, the state charged Shaka with being a prohibited person in possession of a firearm and violating the DANCO in file number 27-CR-17-7866. While awaiting trial, Shaka was detained at the Hennepin County Public Safety Facility (jail). Persons detained at the jail are assigned a "personal identification number" (PIN) when they are booked into jail, and must use that PIN "to identify themselves when they're making a phone call." The jail informs detainees that phone calls will be recorded and retained.

         During his detention, Shaka made numerous calls to a phone number that belonged to S.S., and the jail recorded each call. Shaka's PIN was used for each of the calls. Detective Bergin, of the Hennepin County Sheriff's Office, investigated the calls, and determined that Shaka was speaking to S.S., based in part on the content of the discussions, which involved "S.S.'s pregnancy and their marriage." In October 2017, the state charged Shaka, in a second complaint, with four counts of violating the DANCO, based on four jail phone calls recorded in April, May, and June 2017.[1]

         This appeal arises from the jury trial on the second complaint. On the second day of trial, Bergin testified to the facts described above. Also during Bergin's testimony, the state played recordings of the four jail phone calls. After Bergin testified, and outside the presence of the jury, the state informed the district court, the defendant, and defense counsel that S.S. had not appeared pursuant to the state's subpoena to testify. The state also informed the court that, after jury selection ended on the first day of trial, the jail recorded additional phone calls by Shaka, who "spent the evening finding people to seek out [S.S.] and make sure she didn't come to court." The state sought a brief continuance of the trial, or in the alternative, asked the district court to apply the "forfeiture-by-wrongdoing" exception to the Confrontation Clause, and permit Bergin to testify that he had interviewed S.S. on the first day of trial and she confirmed that she was the female voice on the recordings that had been received into evidence. The district court granted a continuance until the next morning and issued a bench warrant for S.S. to appear.

         On the third day of trial, S.S. did not appear to testify and the state informed the district court that police had been unable to locate S.S. The state briefly summarized its efforts to contact S.S., and then moved to allow Bergin to testify regarding S.S.'s statements. The state also provided the court and defense counsel with transcripts of Shaka's phone calls after the first day of trial. Shaka objected and argued that admitting S.S.'s hearsay statements would violate Shaka's "Sixth Amendment right to confront." Shaka's attorney stated that S.S. called him after the first day of trial and told him that she would be in court to testify the next day.

         The district court analyzed the evidentiary issue under Minn. R. Evid. 804(b)(6) and determined that S.S. was unavailable. The district court stated that it had listened to the recordings of the jail phone calls that Shaka made after the first day of trial. The district court found that Shaka made the calls to "keep [S.S.] out of this courtroom." The district court also found that Shaka provided his family members, and specifically his father, with S.S.'s home address and phone number and "urged" his father "to go to her house in St. Paul and get her to not come to trial." Additionally, the district court found that Shaka's father agreed to go to S.S.'s home and prevent her from testifying. The district court concluded that Shaka had "caused or acquiesced to cause through his wrongdoing her to not appear to testify" and, therefore, that Shaka had "waived his right to confrontation regarding her statements." The district court granted the state's motion and ruled that Bergin could testify about his conversation with S.S.

         After the district court's ruling, Bergin testified that S.S. had come to his office as directed by the subpoena to prepare for her trial testimony. He also testified that, during this meeting, he played two of the jail phone call recordings from May 4 and May 10, 2017, and S.S. confirmed that it was her voice on the calls. Bergin testified that he identified the same female voice on the other two recordings.

         After the state rested, Shaka testified in his defense and admitted that he was the male voice on the recorded calls. Shaka asserted, however, that the female voice on the calls was not S.S. but another woman. The jury found Shaka guilty on all four counts of violating the DANCO. The district court committed Shaka to the commissioner of corrections for 39 months. Shaka appeals.

         ISSUES

         I. Did the district court err by applying the forfeiture-by-wrongdoing exception to admit ...


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