Hennepin County District Court File No. 27-CR-17-24852
Ellison, Attorney General, St. Paul, Minnesota; and Michael
O. Freeman, Hennepin County Attorney, Kelly O'Neill
Moller, Assistant County Attorney, Minneapolis, Minnesota
Cathryn Middlebrook, Chief Appellate Public Defender, Anders
J. Erickson, Assistant Public Defender, St. Paul, Minnesota
Considered and decided by Reilly, Presiding Judge; Rodenberg,
Judge; and Bratvold, Judge.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
the district court err by applying the
forfeiture-by-wrongdoing exception to admit ...