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Saturday, September 15, 2012

Unauthorized Transfer?, Take 4: State v. Supanchick & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

In a comment to a prior post, a reader ask that I consider State v. Supanchick, 263 P.3d 378 (Or.App. 2011), which is currently on appeal to the Supreme Court of Oregon. Supanchick deals with a lot of the issues that I have been discussing over the last week or so, including whether transferred intent applies to forfeiture by wrongdoing and whether the defendant's sole or primary purpose must be to render the declarant unavailable.

In Supanchick, Tyke Supanchick and Kelly Supanchick were married with a child, G, until Kelly filed a motion for a restraining order against Tyke.

In the petition, the victim alleged that, in the previous month, defendant had threatened to beat her and also controlled what and when she ate. She further stated that a couple of years before defendant had threatened to "slit [her] throat" and that there were loaded guns in the house and she feared for her safety. The court issued the FAPA restraining order and, after being served with the order, defendant moved out of the family home and into his parents' house in Junction City.

Then,

About a month after having been served with the restraining order, defendant went to the victim's house shortly after midnight. He dressed in military attire and brought with him a loaded shotgun, latex gloves, duct tape, and a large "Ka–Bar" knife. Defendant used his keys to enter the house and, while still carrying the gun, entered the victim's bedroom, where he found the victim awake and reading in bed. He immediately bound the victim, putting socks (which he had also brought with him) over her hands and binding her hands together with duct tape. Defendant then offered the victim $1,000 and his car if she would leave the state after executing a document that would state that she was an unfit mother and had lied in the restraining order petition and that she would relinquish custody of G to defendant. Although defendant held the victim captive for several hours, she refused to agree to relinquish custody of G.

When Kelly's parents couldn't track down Tyke or Kelly, they called the police. As police attempted to kick in the door of Kelly's house, Tyke shot and killed her. Tyke was charged with aggravated murder, first degree burglary, and attempted coercion. After he was convicted, Tyke appealed, claiming that the trial court erred in admitting Kelly's hearsay statements under Oregon's forfeiture by wrongdoing rule.

That rule, enacted in 2005, is Oregon Rule of Evidence 804(3)(g), which provides an exception to the rule against hearsay for "A statement offered against a party who engaged in, directed or otherwise participated in wrongful conduct that was intended to cause the declarant to be unavailable as a witness, and did cause the declarant to be unavailable."

Tyke raised several objections to the application of this rule in his case. First, he claimed that, for the rule to apply, "his wrongful conduct had to be planned with the primary objective of preventing the declarant from testifying." The court disagreed, finding that 

The text contains no requirement that the wrongful conduct be for the sole or primary purpose of causing a witness to be unavailable. Rather, the conduct need only be "intended" to cause that result.

The Court of Appeals next rejected the contention that Giles v. California required otherwise, concluding that

Contrary to defendant's assertion, however, the Court's opinion in Giles does not suggest that his sole or even primary purpose in making the victim unavailable must have been to prevent the victim from reporting defendant to the authorities or testifying against him. Indeed, it would be "illogical and inconsistent with the equitable nature of the doctrine to hold that a defendant who otherwise would forfeit confrontation rights by his wrongdoing (intent to dissuade a witness) suddenly retains those confrontation rights if he can demonstrate another evil motive for his conduct." People v. Banos....

The court next quickly rejected Tyke's argument  "that a defendant must somehow plan in advance his wrongful act with the intent to make the victim unavailable," finding that no such premeditation is required.

Tyke also argued that there was insufficient evidence to establish that he intended to render Kelly unavailable, but the court again disagreed, finding that

during an interview with detectives, defendant indicated that he had been concerned that the victim would call the police as a result of his violation of the FAPA restraining order. Further, when asked by detectives why he did not just let the victim go, defendant replied, "Because there had to be a better way, a better option than that. A better option because now I'm gonna go to jail for whatever, for being—violating [the restraining order] and having a gun there." And in response to questioning as to why he had "to shoot the gun," defendant responded that “walking out means going to jail and means my daughter goes to her[.]” In light of those statements by defendant to police, we conclude that there is evidence in the record to support the trial court's finding that one of the purposes behind defendant's wrongful act was to prevent the victim from participating in proceedings against him.

In other words, the court adopted the transferred intent doctrine of forfeiture by wrongdoing.

Finally, Tyke contended that Kelly's statements "'lacked particularized guarantees of trustworthiness' and that 'the forfeiture by wrongdoing exception is not 'firmly rooted' and was only recently added to the evidence code in 2005.'" The court also rejected this argument, concluding that while the forfeiture rule was only added in 2005, it is merely a codification of the centuries-old doctrine that is "firmly rooted."

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/09/in-a-comment-to-aprior-post-a-reader-ask-that-i-considerstate-v-supanchick-263-p3d-378-orapp-2011-which-is-currently.html

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Comments

Honestly, I think this is one of the areas left undecided by Giles because of the factual situation of that case. Giles claimed self-defense with is fundamentally incompatible with any intent to do wrong. IMHO the correct standard is that the prosecution isn't required to demonstrate that intent was the sole reason but should be required to demonstrate that intent was the primary reason. The reason is that so many of these types of cases feature "mixed motives".

When I read the Supanchick opinion I see a very thin justification for claiming that he killed her to render her unavailable as a witness. There is no direct threat as there was in Banos and there is not the constellation of independent factors that we saw in Garcia. I won't say I disagree with court as a matter of law because I think the law in this area is underdeveloped. I disagree with it as a matter of fact.

Posted by: Daniel | Sep 15, 2012 11:43:49 PM

I conjecture the Supreme Court will affirm - with very little difficulty - the lower courts' findings and rulings, to wit:

1. Supanchick voluntarily confessed to the murder. Arguably, upon affirming this matter, the Supreme Court could dispense with the need to engage in ORE 804(3)(g)discussion.

2. If the court does engage in an ORE 804(3)(g) discussion, it will conclude that this is a classic example of when the forfeiture should apply: a.) defendant killed victim in part (no need to prove for the "sole and only") to prevent her from testifying against him that he violated the reatrining orderer, b.) the preponderance of evidence presented to this court supports this finding, and c.) the forfeiture doctrine does not violate a defendant's Sixth Amendment right to confrontation.

Bottom Line: Goodbye and good night to Mr. Supanchick.

BARRY

Posted by: Barry | Sep 16, 2012 3:36:16 PM

Just an update on this discussion:
Oregon v. Supanchick was argued on 11/6/12.
It contains a great discussion of the scope and limit of the common law rule of forfeiture by wrongdoing.
The audio is available here:
http://oregoncourts.mediasite.com/Mediasite/Catalog/catalogs/default.aspx

Posted by: Matt | Nov 7, 2012 12:18:01 PM

I never knew this was all going on as I had not checked on Supanchick for some time. I'm not surprised he has tried to get his conviction overturned. He never thought he did anything wrong. Kelly tried to leave him several times, even going into hiding to avoid him. She was terrified of him, and rightly so. He is very manipulative and controlling, not even letting her comunicate with her family. he told her what to eat, what to wear, where to go and who she could see. He contacted her to supposedly reconcile then left her and drove off with their 6 month old baby who was still brestfeeding. He went half way across the country and told Kelly she had to come by bus if she ever wanted to see her baby again. He is where he belongs and I hope he rots. The baby on the other hand is alive and well looks like her mother. Kellys Aunt.

Posted by: kellys aunt | Nov 27, 2012 2:28:11 PM

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