EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, September 20, 2012

Available For A Limited Time: Court Of Appeals Of North Carolina Applies Forfeiture By Wrongdoing To Aborted Testimony

The opinion of the Court of Appeals of North Carolina in State v. Weathers, 724 S.E.2d 114 (N.C.App. 2012), was the first North Carolina opinion to apply the doctrne of forfeiture by wrongdoing, and there's something pretty interesting about the opinion:  The statements admitted under the dotrine consisted of the witness' aborted testimony at trial.

In Weathers, Jaquan Weathers was charged with first-degree murder and three related counts of kidnapping. Johnny Wilson

was one of the State's chief witnesses at trial. During his direct examination on 28 February 2011, Wilson was shaking while testifying about Defendant's involvement in the murder. When he returned to the stand on 2 March, he "began to testify, but within a few minutes became distraught and indicated he did not wish to make any other statements." Wilson was shaking more noticeably than he had been on 28 February, and laid his head down on top of the witness stand and began to cry. Wilson became even more upset when a young man dressed in street clothes entered the courtroom. When asked if he had been threatened, Wilson responded, "I don't even want to answer that question."

In light of Wilson's extreme emotional state, the trial court excused Wilson from testifying further. At the prosecution's request, the court called a hearing on the issue of whether the doctrine of forfeiture applied to the circumstances and whether Wilson's testimony would remain on the record. Defendant argued that the appropriate remedy was to declare a mistrial because he had been denied the right to confront Wilson. By order entered 11 March 2011, the court directed that Wilson's testimony remain on the record. In the order, the trial court found that Defendant had "committed wrongful acts that were undertaken with the intention of preventing potential witnesses from testifying and has in fact caused a potential witness, Johnny Wilson, to refuse to testify."

After he was convicted, Weathers appealed, claiming that a mistrial should have been declared and that WIlson's aborted testimony was improperly admitted under the doctrine of forfeiture by wrongdoing. The Court of Appeals of North Carolina noted that North Carolina does not have a rule of evidence covering forfeiture by wrongdoing but found that Wilson's testimony could be admissible under the common law doctrine. The appellate court then noted that

The trial court made several findings regarding the overwhelming evidence of Defendant's wrongful acts and his intent. First, Wilson disclosed that, as they were being transported to the courthouse for trial, Defendant threatened to kill Wilson and his family. A detention officer also testified that she heard Defendant threaten Wilson. Second, in a taped interview with homicide detectives and assistant district attorneys, Wilson repeatedly expressed his concern that his life and the lives of his family members were in jeopardy.

Moreover, a phone call made by Weathers tended to indicate that the young man who entered the courtroom was an acquaintance intended to intimidate WIlson into not testifying. Based upon this and other evidence the Court of Appeals of North Carolin was easily able to conclude that

In light of the overwhelming evidence regarding Defendant's acts, the intention behind them, and their effect on Wilson, as well as the court's thoughtful, well-reasoned analysis thereof, the trial court did not abuse its discretion in refusing to grant a mistrial.



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Under Giles the trial court has find three separate facts. (1) The witness did not testify, (2) The defendant had the intent for the witness not to testify, and (3) this intent caused the witness not to testify.

The court here doesn't directly address (3) so it's difficult to know what to make of the opinion. It spends all its time talking about (1) and (2) (convincingly so) but never takes the leap to causation. Annoying.

Posted by: Daniel | Sep 20, 2012 10:44:51 PM

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