Appeals court clarifies forfeiture by wrongdoing doctrine after Jensen and Giles 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 3, 2010 – A Wisconsin appeals court recently clarified that a defendant loses his or her constitutional right to cross-examine an opposing witness if the defendant’s conduct was intended to prevent the witness from testifying and that conduct was successful.

In addition, the District I appeals court in State v. Baldwin, 2009AP1540-CR (Nov. 2, 2010), ruled that direct and circumstantial evidence was enough to authenticate jail telephone recordings that implicated the defendant in violation of a court order.

Facts and procedure 

In the past four years, the state has charged defendant Scottie Baldwin multiple times in multiple cases on domestic violence charges against his girlfriend, R.Z. In one of those cases, the state charged Baldwin with aggravated battery and false imprisonment, both felonies.

Two preliminary hearings were scheduled in June of 2007. Despite being served to appear at both hearings, R.Z. appeared at neither. R.Z. also failed to appear at previous hearings and sent a letter to the court stating that Baldwin was not at fault for her injuries. The state was forced to amend the felony charge to a misdemeanor and dismiss the second felony charge.

Days later, authorities obtained a search warrant to search R.Z.’s home, and uncovered correspondence from Baldwin during the search. Baldwin sent the correspondence from the Milwaukee County jail before the preliminary hearings at which R.Z. was scheduled to appear, telling her not to appear and asking her to fabricate a story.

Based on the correspondence, as well as jail telephone recordings that Baldwin made to R.Z. from jail, the state charged Baldwin with intimidation of a witness, a felony charge, and six other counts going back to 2005.

The state planned to use the forfeiture by wrongdoing doctrine to admit hearsay evidence – statements to police – obtained from R.Z. on previous occasions, and re-indicted Baldwin on aggravated battery and false imprisonment charges, among others.

At a preliminary hearing, the trial court found the state had probable cause to charge Baldwin with felony intimidating a witness relating to the June 2007 hearings. Baldwin remained in custody until trial, and the court revoked his telephone, mail, and visitation rights.

Before trial, the state moved to admit R.Z.’s statements to police under the forfeiture by wrongdoing doctrine. The court granted the motion. Meanwhile, the state subpoenaed R.Z. to appear for trial.

On the day of trial, R.Z. did not appear. The state filed for a delay based on new information that Baldwin had been contacting R.Z. through third parties from jail in violation of the court’s order. After the state attempted to authenticate jail telephone recordings, the court allowed the recordings despite Baldwin’s objection that the state did not properly authenticate them.

At jury trial in April of 2008, despite the absence of court testimony from R.Z., Baldwin was convicted on all but one count. He appealed.

Confrontation clause and the forfeiture by wrongdoing exception 

The appeals court explained that the Sixth Amendment to the U.S. Constitution gives defendant’s a right to cross-examine opposing witnesses, unless the forfeiture by wrongdoing doctrine applies. In that event, R.Z’s hearsay statements to police would be admissible.

Baldwin argued that the trial court applied the wrong test to determine whether the forfeiture by wrongdoing doctrine applied. That is, Baldwin argued that trial court applied the test set forth in State v. Jenson, 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518, which has been superseded by the U.S. Supreme Court in Giles v. California, 128 S. Ct. 2678 (2008). At the time of the trial court ruling, Giles had not been decided.

The appeals court explained that Jensen required evidence “that the accused caused the absence of the witness,” but Giles requires “not just that the defendant prevented the witness from testifying, but also that the defendant intended to prevent the witness from testifying.”

The appeals court recognized that Giles sets forth a narrower test – one that requires intent – than Jensen, but concluded the trial court did not offend Giles in reaching its conclusion. The trial court had ruled the state met its burden by demonstrating that Baldwin “intimidated [R.Z.] from attending court to testify against him at trial.”

“Despite Jensen’s broader interpretation of the doctrine, in a prescient decision, the trial court … found that Baldwin’s actions satisfied the yet-to-be decided Giles holding,” the appeals court wrote. “[T]he trial court made the correct legal finding, namely, that Baldwin’s intent was to prevent R.Z. from testifying at trial.”

Baldwin also argued that the trial court erred in not requiring the state to provide proof of its attempts to locate R.Z. in order to testify. But the court concluded that under section 908.04(1)(e), all the state has to do is make a “good-faith effort” and exercise “due diligence” to secure the witness’s presence, and the state did that by showing proof of service.

Authentication of jail recordings

Baldwin argued that the jail telephone recordings used to implicate him in violating the court’s order against telephone communications from jail were inadmissible as not properly authenticated under Wis. Stat. section 909.015.

That is, Baldwin argued the state did not follow the statute’s enumerated methods of authentication and, therefore, the state failed to prove Baldwin made the calls to R.Z.

But the state argued, and the court agreed, that methods of authentication under the statute are “merely illustrative” and the recordings were properly authenticated by both direct and circumstantial evidence. Primarily, the state had testimony from police officers verifying the identity of the callers, jail records, and conversation details.

Thus, the appeals court affirmed the judgments of the circuit court.