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135 Net, Advance Opinion 3-i
IN THE SUPREME COURT OF THE STATE OF NEVADA
ARNOLD KEITH ANDERSON, No. 74076
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent.
SEP 0 5 2019
ELIZABETH A. BROWN
E Trr
i
CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of attempted murder with use of a deadly weapon and battery with
use of a deadly weapon resulting in substantial bodily harm. Eighth
Judicial District Court, Clark County; Michelle Leavitt, Judge.
Affirmed.
Law Office of Lisa Rasmussen and Lisa A. Rasmussen, Las Vegas; Sandra
L. Stewart, Las Vegas,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, Binu G. Palal, Chief Deputy District Attorney, and Charles W.
Thoman, Deputy District Attorney, Clark County,
for Respondent.
BEFORE HARDESTY, STIGLICH and SILVER, JJ.
OPINION
By the Court, STIGLICH, J.:
The Sixth Amendment to the United States Constitution
guarantees a defendant in a criminal prosecution the right to confront the
witnesses against him or her. A defendant, however, may forfeit that right
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if he or she procures the witness's absence by wrongdoing. Appellant Arnold
Anderson asserted his right to confrontation when the State sought to admit
his daughter's out-of-court statements to an investigator employed by the
Clark County District Attorney's Office. Relying on the forfeiture-bywrongdoing exception to the Confrontation Clause, the trial court admitted
the out-of-court statements after finding that the witness was unavailable
and Anderson had intentionally deterred the witness from appearing at
trial. We take this opportunity to weigh in on the State's burden of proof
when invoking the forfeiture-by-wrongdoing exception to the Confrontation
Clause, holding the preponderance-of-the-evidence standard is the
appropriate burden of proof. Because the district court applied that
standard and the record supports its conclusion that the State met its
burden, we affirm.
FACTS AND PROCEDURAL HISTORY
Anderson shot Terry Bolden outside an apartment complex in
Las Vegas, striking him in the head, chest, and leg. Bolden's girlfriend,
Rhonda Robinson, and Anderson's daughter, Arndaejae Anderson
(Arndaejae), witnessed the shooting. Bolden and Robinson identified
Anderson as the shooter.
Anderson was charged with attempted murder with use of a
deadly weapon, robbery with use of a deadly weapon, and battery with use
of a deadly weapon resulting in substantial bodily harm. Anderson has
maintained that he has physical evidence showing that he was in California
at the time of the shooting—a photo with a time stamp and an automobile
repair receipt. Sometime after Anderson was charged, Mark Rafalovich, an
investigator with the Clark County District Attorney's Office, visited
Arndaejae at a juvenile detention center to interview her about the
2
incident. The deputy district attorney assigned to the case, Arndaejae's
defense counsel, and her defense investigator were also present. During the
interview, Arndaejae made statements that incriminated Anderson in the
shooting. The interview was not recorded or otherwise memorialized.
A five-day trial commenced wherein Anderson represented
himself. On the morning of the second day of trial, the State represented to
the court that earlier that morning Anderson was recorded on the jail
telephone speaking with a female "and telling her to disappear and to leave
her phone" so that authorities could not track her.2 The State alleged that
the female was Arndaejae.3 To support that allegation, the State indicated
that it had evidence that Anderson called the same number on August 3 to
wish the caller a happy birthday and Arndaejae's birthday is August 3.
Arguing that the phone call showed Anderson had procured Arndaejae's
absence, the State argued that it should be permitted to introduce
Arndaejae's prior statements through Rafalovich. Anderson argued that
because he never said his daughter's name during the call, the State could
not prove that he was procuring her absence. He also represented that he
was telling a "friend in a different matter" to disappear for a week.
The court then inquired about the State's efforts to locate
Arndaejae. The State conveyed that a warrant was already out for her
arrest because she absconded from juvenile probation "a few months ago,"
her probation officer was actively searching for her, and an investigator
with the DA's office was also searching for her. However, a material witness
'Arndaejae was in custody on an unrelated matter.
2The jail telephone recording was played in open court.
3The State had been having difficulty locating Arndaejae for trial.
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warrant was not issued, and the State could not serve Arndaejae with a
subpoena. Anderson objected and argued that he could not have procured
her absence because she had already fled, as demonstrated by the existing
warrant for absconding from her probation. The court noted Anderson's
objection but deferred its ruling until the State was ready to call the
witness.
At the end of the second day of trial, the State informed the
court that it intended to call Rafalovich the following morning to testify to
Arndaejae's out-of-court statements. At that time, the State provided its
evidence to the court that Arndaejae was the female on the recorded jail call
with Anderson. Relying on the doctrine of forfeiture by wrongdoing, the
court allowed the State to call its investigator to testify as to Arndaejae's
out-of-court statements. The court found that the State had shown by a
preponderance of the evidence that Arndaejae was unavailable because
Anderson intentionally deterred her from testifying against him.
On the fourth day of trial, Rafalovich testified as to Arndaejae's
statements at the juvenile detention facility. According to Rafalovich,
Arndaejae indicated that she witnessed the shooting, identified her father
as the shooter, and indicated that he told her to lie about his whereabouts
by saying that he was in California.
The jury found Anderson guilty of attempted murder with use
of a deadly weapon and battery with use of a deadly weapon resulting in
substantial bodily harm. The jury found Anderson not guilty of robbery
with use of a deadly weapon. The district court sentenced Anderson to serve
consecutive prison terms totaling 20-50 years in the aggregate for the
attempted murder and battery convictions.
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DISCUSSION
Anderson argues that the introduction of Arndaejae's out-ofcourt statements violated his rights under the Sixth Amendment's
Confrontation Clause. See U.S. Const. amend. VI. The State does not
dispute, and we accept without deciding, that Arndaejae's out-of-court
statements were testimonial. Rather, the State asserts that Anderson
forfeited his right to confront Arndaejae by procuring her absence.
Anderson in turn asserts that the State failed to prove by a preponderance
of the evidence that Arndaejae was absent because of his actions so as to
trigger the forfeiture-by-wrongdoing exception to the Confrontation
Clause.4 Whether a defendant's Confrontation Clause rights were violated
is a question of law subject to de novo review. Chavez v. State, 125 Nev.
328, 339,
213 P.3d 476, 484 (2009).
The Sixth Amendment's Confrontation Clause provides that
"[i]ri all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him." U.S. Const. amend. VI. It bars
admission of "testimonial evidence unless the witness is unavailable and
the defendant had a prior opportunity to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 68 (2004). The United States
Supreme Court, however, has recognized that a defendant may forfeit the
right to confrontation. In particular, 'one who obtains the absence of a
witness by wrongdoing forfeits the constitutional right to confrontation."
Davis v. Washington,
547 U.S. 813, 833 (2006). To demonstrate such a
There are two independent hurdles to admitting out-of-court
4
statements: the Sixth Amendment's Confrontation Clause and Nevada's
evidentiary statutes. Anderson does not challenge the admissibility of
Arndaejae's statements pursuant to the evidentiary statutes, so we do not
address them.
5
forfeiture, the State must "show] ] that the defendant intended to prevent a
witness from testifying." Giles v. California, 554 U.S. 355, 361 (2008).
Although the Supreme Court has acknowledged forfeiture by wrongdoing
as an exception to the Sixth Amendment's confrontation guarantee and
addressed the scope of that exception, it has not taken a position on the
evidentiary standard that the State must meet to show forfeiture by
wrongdoing. See Davis, 547 U.S. at 833 (taking "no position on the
standards necessary to demonstrate such forfeiture). This court also has
not yet taken a position on that issue. We take this opportunity to do so.
Preponderance of the evidence is the appropriate standard of proof
Among the federal circuit and state courts that have grappled
with the burden-of-proof issue, the focus has been on whether the
appropriate burden is clear and convincing evidence or a more forgiving
preponderance of the evidence. See United States v. Johnson, 767 F.3d 815,
820-23 (9th Cir. 2014) (discussing the issue and cases addressing it). The
overwhelming majority of those courts have held that the preponderance-of-the-evidence standard applies to the forfeiture exception to the
Confrontation Clause. Id. at 821-23; see State v. Thompson,
45 A.3d 605,
615-16 (Conn. 2012) (compiling a list of all states applying the
preponderance standard as of 2012).
On one end of the spectrum, the United States Court of Appeals
for the Fifth Circuit held in United States v. Theuis that the prosecution
must prove that a defendant procured the absence of a witness by clear and
convincing evidence for the forfeiture exception to apply. 665 F.2d 616, 631
(5th Cir. 1982), superseded by rule on other grounds as stated in United
States v. Nelson, 242 Fed. App'x 164 (5th Cir. 2007). In doing so, the court
reasoned that confrontation rights are important "in testing the reliability
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of evidence" and the clear-and-convincing-evidence standard typically
applies to evidentiary decisions "[w]here reliability of evidence is a primary
concern." Id. (citing United States v. Wade,
388 U.S. 218, 240 (1967)
(holding that where defense counsel was not present at a lineup
identification, the prosecution must be given an opportunity to prove by
clear and convincing evidence that the witness's in-court identification of
the defendant was based on observations of the defendant other than the
lineup identification)). On the other end of the spectrum, a number of
federal circuits apply a preponderance-of-the-evidence standard. In United
States v. Mastrangelo, for example, the United States Court of Appeals for
the Second Circuit opined that the preponderance standard is more suitable
because "waiver by misconduct is an issue distinct from the underlying right
of confrontation" and a higher standard "might encourage behavior which
strikes at the heart of the system of justice itself."
693 F.2d 269, 273 (2d
Cir. 1982); see also United States v. White,
116 F.3d 903, 912 (D.C. Cir.
1997); United States v. Houlihan,
92 F.3d 1271, 1280 (1st Cir. 1996); Steele
v. Taylor,
684 F.2d 1193, 1202 (6th Cir. 1982) (A standard that requires
the proponent to show that it is more probable than not that the defendant
procured the unavailability of the witness is constitutionally sufficient
under the due process and confrontation clauses."); United States v. Balano,
618 F.2d 624, 629 (10th Cir. 1979), overruled on other grounds by
Richardson v. United States,
468 U.S. 317, 325-26 (1984).
We agree with the majority of courts that have considered the
issue—the preponderance standard provides the appropriate burden of
proof for purposes of the forfeiture-by-wrongdoing exception to the
Confrontation Clause. As the United States Supreme Court has observed,
the forfeiture-by-wrongdoing exception is not about the reliability of the
7
evidence at issue. Crawford, 541 U.S. at 62 (stating that the exception
"make[s] no claim to be a surrogate means of assessing reliability"). The
exception instead grows out of equitable concerns with allowing a defendant
to benefit from his or her own wrongdoing. Reynolds v. United States,
98
U.S. 145, 158-59 (1879) (stating that "[t]he Constitution does not guarantee
an accused person against the legitimate consequences of his own wrongful
acts," harkening back to English common law for the equitable principle
"that no one shall be permitted to take advantage of his own wrona If the
purpose of the forfeiture-by-wrongdoing exception is, as the Supreme Court
has said, to permit "courts to protect the integrity of their proceedings,"
Davis,
547 U.S. at 834, a lower standard of proof is fitting. The purpose of,
and the equitable concerns underlying, the forfeiture-by-wrongdoing
exception would not be served by a high burden of proof that could instead
encourage conduct that undermines the integrity of the criminal justice
system. And a higher standard is not required to protect the defendanfs
confrontation rights given the Supreme Court's narrow interpretation of the
exception, particularly its intent requirement, as stated in Giles, 554 U.S.
at 361. See Johnson,
767 F.3d at 822 (The intent requirement thus ensures
that the judge's inquiry is focused on whether the defendant intended to
compromise the integrity of the proceedings, not on whether the defendant
committed the underlying offense."). For these reasons, we hold that the
burden of proof under the forfeiture-by-wrongdoing exception is the
preponderance standard. The trial court applied the preponderance
standard in this case, so we turn to whether the court erred in concluding
that the State produced sufficient• evidence to admit Arndaejae's out-ofcourt statements under the forfeiture-by-wrongdoing exception to the
Confrontation Clause.
8
The trial court did not err in its application of the forfeiture-by-wrongdoing
exception to admit Arndaejae's out-of-court statements
To apply the forfeiture-by-wrongdoing exception to the
Confrontation Clause, the trial court must find by a preponderance of the
evidence that the defendant intentionally procured the witness's absence.
In making that determination, the district court must conduct a hearing
outside of the jury's presence to consider the evidence relevant to the
forfeiture-by-wrongdoing exception.
The State described its unsuccessful efforts to locate Arndaejae
using an investigator, as well as efforts made by Arndaejae's probation
officer. Asserting that Anderson procured her absence, the State produced
a recording of a phone call that Anderson placed from the jail to Arndaejae's
phone number.5 During that call, Anderson told the person on the other
end of the call "to disappear for a week" and "to leave [her] phone and go
someplace else so that authorities could not track her. But the court also
heard that Arndaejae absconded from juvenile probation "a few months"
earlier and that a warrant had been issued for her arrest.
Anderson suggests that the State presented insufficient
evidence that he procured Arndaejae's absence, pointing to the outstanding
warrant for her arrest as the more likely reason that she would not show
up for trial. This argument implicates what it means to "procure a
witness's absence. In considering the meaning of "procure," the Court in
Giles pointed to definitions including "to contrive and effece and "to
endeavour to cause or bring about." 554 U.S. at 360 (emphasis and internal
quotation marks omitted). These definitions contemplate an affirmative
A1though disputed below, Anderson conceded on appeal that the
5
phone number belonged to Arndaejae.
9
action by the defendant that brings about the witness's absence. See
Carlson v. Attorney General of California, 791 F.3d 1003, 1010 (9th Cir.
2015) ("The pertinent Supreme Court authority, then, clearly establishes
that the forfeiture-by-wrongdoing doctrine applies where there has been
affirmative action on the part of the defendant that produces the desired
result, non-appearance by a prospective witness against him in a criminal
case."). Thus, we must draw a line between a defendant's mere passive
acquiescence in a witness's decision to be absent and a defendant's
affirmative effort or collusion with a witness to procure that witness's
absence. See id. (opining that "[s]imple tolerance of, or failure to foil, a third
party's previously expressed decision either to skip town himself rather
than testifying or to prevent another witness from appearing does not
'cause or 'effect' or 'bring about' or 'procure' a witness's absence);
Commonwealth v. Edwards,
830 N.E.2d 158, 171 (Mass. 2005) (applying the
forfeiture doctrine where "a defendant actively facilitates the carrying out
of the witness's independent intent not to testify"). Distinguishing between
passive acquiescence and affirmative action ensures that courts apply the
forfeiture-by-wrongdoing exception to the Confrontation Clause only where
the defendant does more than merely approve of the witness's independent
decision not to testify. Edwards,
830 N.E.2d at 171 ("[A] defendant's joint
effort with a witness to secure the latter's unavailability, regardless of
whether the witness already decided 'on his own' not to testify, may be
sufficient to support a finding of forfeiture by wrongdoing."); see also State
v. Maestas, 412 P.3d 79, 91 (N.M. 2018). Because it is the rare occasion that
an absent witness will be present to explain the reason for his or her
absence, the causal relationship between the defendant's actions and the
witness's absence need not be proven by direct evidence. Rather,
10
circumstantial evidence may be proffered to demonstrate that the witness's
absence is "at the very least, . . . a logical outgrowth or foreseeable result of
the [defendant's efforts]." Edwards, 830 N.E.2d at 171; see also United
States v. Scott, 284 F.3d 758, 764 (7th Cir. 2002); State v. Shaka, A18-0778,
2019 WL 1890550, at *4-5 (Minn. Ct. App. Apr. 29, 2019).
We conclude that Anderson's actions indicate more than mere
passive acquiescence to Arndaejae's decision to be absent. In his recorded
phone call to Arndaejae's phone number, Anderson instructed her to leave
her phone so she could not be tracked by law enforcement. This
demonstrates by a preponderance of the evidence that Anderson actively
worked to keep Arndaejae from the prosecution with the intent that she not
testify at his trial. Accordingly, we conclude the trial court did not err in its
application of the forfeiture-by-wrongdoing exception to admit Arndaejae's
out-of-court statements even though Anderson had no opportunity to
confront her regarding the statements.
CONCLUSION
In sum, we conclude that to apply the forfeiture-by-wrongdoing
exception to the Confrontation Clause, a trial court must find by a
preponderance of the evidence that a witness is unavailable, the defendant
engaged in conduct that procured the witness's unavailability, and the
defendant acted with intent to procure the witness's absence. We
additionally conclude that the trial court must take evidence and argument
from the prosecution and defense outside the presence of the jury to reach
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its finding. Because the district court did not err in its application of the
exception, we affirm the judgment of conviction.6
/eksbLia J.
Stiglich
I concur:
ArA, J.
Hardesty
J.
Silver
6Anderson additionally argues that (1) he was denied his right to
counsel and (2) his battery conviction should be reversed as redundant. We
have considered these alleged errors and reject them as lacking merit.
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