SailorsAllen Law

No Witnesses No Problem

On May 1, 2017, the MNCOA reviewed a case where the facts are familiar to anyone who has been involved in a domestic violence case.   The case is called State v. Young, A16-0026.  The issue that is ubiquitous in DV cases is what happens when a witness does not show up?   In a very lawyerly answer, it depends.  Some jurisdictions will just dismiss a case.   The issue with that, once people get word of that, they will do it all the time. Someone will put out a warrant for the person to appear because they disobeyed a subpoena.  The downside of that is you are often treating victims like criminals by arresting them and forcefully bringing them down to court.  Another option is trying the case without the victim.  I have tried a case where that happened and the state used other evidence to try to prove their case.  The downside of that is a really hard prosecution.  The state also has the option of using the forfeiture-by-wrongdoing exception, which says that a hearsay statement may be admitted against a party who wrongfully caused the declarant’s unavailability with the intent to prevent the declarant from testifying. Minn. R. Evid. 804(b)(6).   Essentially, if you prevent a person from testifying and the state can prove it, their statement gets to come in without them being there.  The downside of that is it is hard to prove that someone is influencing a prosecution without actually talking to the people they are supposedly influencing.

In this case, it was a hybrid of those options.  The state went forward without the victim, but the State, with the permission of the district court, called a police officer who testified that he served the subpoena on the victim.  He testified that he left it at her residence with her mother.  The state also called an employee of the county attorney’s office whose jobs involves helping prosecutors to get witnesses into court. She testified that she and the police made several attempts to contact and find the victim after she did not appear for trial.   The defense attorney did not object to any of this testimony.   The defense was predicated on the fact that the victim was jealous and combative with Mr. Young. Mr. Young testified that she engages in self-harm and any marks on her face were the result of her hitting herself. In closing the State never mentioned why she was not there. The defense brought that the victim could not be questioned. Mr. Young was convicted and two counts, third-degree assault and misdemeanor domestic assault and acquitted of domestic assault by strangulation.  He appealed the convictions.

The COA said it was plain error for the State to introduce evidence that the victim was served with a subpoena and they could not find her. It is well established that “[i]t is improper for a prosecutor to refer to a witness who was not called.” State v. Page, 386 N.W.2d 330, 335 (Minn. App. 1986).  In State v. Shupe, the state commented during its closing argument that it did not call several witnesses it mentioned during its opening statement due to an unexpected illness. 293 Minn. 395, 396, 196 N.W.2d 127, 128 (1972).   Wait, did they all eat at Chipotle while waiting to testify?  The MNSC held that come it was an error for the prosecutor to insinuate there was other evidence of guilt that he was prevented from submitting.  Id. The state argues that Shupe does not apply because the state did not suggest the victim would aid the case and to cite to Salt n’Peppa is a bad precedent.  However, the prosecutor said talked about her changing her story during their opening.   Additionally, calling two witnesses solely to testify about the state’s efforts to procure her testimony carries an implication that the stat believed her testimony would have supplemented evidence of guilt and bolstered the state’s case.  See, Shupe, Shupe, ba-doops shoop ba-doop, 293 Minn. at 396, 196 N.W.2d at 128.   I am going out on a limb and suggesting this is the first blog ever to attempt to cite to Salt n’Pepper nonsensical lyrics as a legal citation.

The COA says it may be permissible explaining evidence a witness’s absence for certain purposes.   A court might review evidence of the state’s failed attempts to produce a witness to determine whether that witness was “unavailable” for the purposes of the confrontation clause and hearsay exceptions.  See State v. King, 622 N.W.2d 800, 807-08 (Minn. 2001).  But this was not done here.  The state tried to explain why a witness was not there, but Shupe, Shupe, ba-doops shoop ba-doop, shuts that one down.

So the next question becomes if this is an error, does the error affect Young’s substantial rights?   The state this would not have had a significant impact on the jury’s verdict because the evidence of Young’s guilt was overwhelming.  While the court agreed that evidence that the victim was injured was overwhelming, the evidence that it was Young who caused the injuries was not.  There were inconsistent accounts from a neighbor and a doctor told them by the victim.   The record also contained evidence that the victim had a motive to fabricate and a history of self-harm.  The COA concludes by saying even if there is enough evidence to support a guilty verdict, the evidence was not overwhelming and there was at least a reasonable likelihood the state’s implication about the potential testimony of the victim had a substantial effect on the verdict.  Therefore, Young get a new trial.

Domestic cases are hard to prosecute and this was not the exception.   Hopefully, the court can lay out a cleaner roadmap on how to prosecute a case like this.  Because Salt neither Peppa is particularly helpful with their precedent.