Opinion
CR-2020-2265
06-08-2022
STATE OF MAINE v. KEVIN ROBERTS Defendant
ORDER REGARDING FORFEITURE BY WRONGDOING
Background
By an Indictment dated June 7, 2021, Defendant Kevin Roberts (hereafter "Roberts") is charged with aggravated assault, domestic violence terrorizing with a dangerous weapon, domestic violence criminal threatening with a dangerous weapon, and domestic violence criminal threatening. Docket call was held on March 1, 2022, and Roberts' case was set, with jury selection scheduled for March 7, 2022, and trial scheduled to commence March 22, 2022. On March 3, 2022, the prosecutor on the case had a phone call with the alleged victim at which time the alleged victim indicated she would not come to court and would not testify. With that news, and there being a no contact order, the prosecutor requested the jail where Roberts was being held to produce any phone calls between Roberts and the alleged victim. On March 7, 2022, the day a jury was being selected, the jail produced to the prosecutor recordings of 43 phone calls between Roberts and the alleged victim. After listening to some portion of those recordings, the prosecution believed Roberts had coerced the alleged victim to not appear for trial. In the afternoon of March 18, 2022, the State filed the pending Motion in Limine for Forfeiture by Wrongdoing.
On March 22, 2022, prior to the jury being assembled in the courtroom, the court heard arguments on the motion in limine. Upon hearing the arguments of counsel, and hearing one recording of a phone call between Roberts and the alleged victim that occurred in mid-February 2022, the court found that the State had made a prima facie showing of wrongdoing. The court also found that the State had not been untimely in bringing its motion, as it had just learned on March 3, 2022 of the alleged victim's unwillingness to cooperate, as up to that time she had been cooperative. Accordingly, the court granted the State's request to have a full evidentiary hearing on the motion, resulting in trial being postponed.
After learning the court would be continuing the trial, and against the advice of his attorney, Roberts told the court he would be willing to waive his rights to confrontation and hearsay rights so the trial could proceed. After a fairly lengthy colloquy with Roberts and his attorney, the court denied Roberts request to proceed to trial waiving his rights to confrontation and hearsay on the basis that under the circumstances it was not a "knowing" waiver.
Hearing on the motion was held on June 22, 2022. Testimony was received from Officer Pelletier of Auburn Police, Courtney Alofs, the victim witness advocate, and Detective Ashley Wade of Lewiston Police. Also admitted into evidence were the following exhibits:
State's Exhibit 1-unserved witness subpoena dated March 23, 2022;
State's Exhibit 2- Email statement from Jasmin Rivera to Courtney Alofs dated February 16, 2022;
State's Exhibit 3- unserved witness subpoena dated June 15, 2022;
State's Exhibit 4- Handwritten letter by Defendant Roberts filed with the court on February 17, 2022;
State's Exhibit 5- report by Detective Wade summarizing jail calls;
State's Exhibit 6- incident report by Detective Wade dated October 7, 2020;
State's Exhibit 7- flash drive recording of 43 jail calls;
Defense Exhibit 1- Email statement from Jasmin Rivera to Robert's attorney dated February 16, 2022;
Defense Exhibit 2 - flash drive containing recordings of jail calls; and
Defense Exhibit 3- flash drive containing a video recording of statement by Jasmin Rivera.
Finding of Facts
Based upon the testimony and exhibits, the court makes the following facts relevant to the pending motion:
Roberts allegedly assaulted Jasmin Rivera (hereafter "Rivera") on October 7, 2020. Prior to that, Roberts and Rivera had been sexual partners, and had one son together, born in April, 2020. Prior to October 7, 2020, although frequently together, Roberts and Rivera were not living in a family type relationship, The allegations for the October 7, 2020 incident include Roberts threatening, striking and choking Rivera at her apartment. When Roberts left the apartment, Rivera was able to call 9-1-1. After he left the apartment, Roberts sent Rivera several threatening messages via Facebook. After the incident, Rivera was interviewed by Detective Wade. Rivera told Detective Wade that at the time of the assault she thought Roberts was going to kill her, and that she also thought the Facebook messages were threats to kill her. Detective Wade established a cooperative rapport with Rivera, talking with her on the phone several times and assisting her with a security camera and establishing a safety plan. Detective Wade was of the impression Rivera was afraid of Roberts and did not want any contact with him.
Roberts was arrested and on November 7, 2020 released on cash bail with conditions of no contact with Rivera. In December, 2020 Rivera reported to Detective Wade that Roberts had been contacting her. Per Detective Wade, Rivera had initially acquiesced to the contact from Rogers as it largely focused on their son. Rivera became concerned with the contact, however, when the discussions escalated to Roberts suggesting they run away together and him telling her to not appear in court to testify. Upon Rivera reporting this to Detective Wade in December, 2020, an arrest warrant was granted for new charges of tampering with a victim and violation of condition of release. Roberts was arrested on that warrant several months later in late September, 2021, and extradited back to Maine. Roberts has remained in Androscoggin County Jail without bail since September 24, 2021.
In June or July of 2021, Rivera told Detective Wade she was leaving Lewiston and moving to the Boston area to reside in a domestic violence safe house. Detective Wade did not obtain the address of the safe house as it is generally prohibited to communicate addresses of facilities.
As Robert's case was approaching a potential March, 2022 trial, the District Attorney's victim witness advocate, Courtney Alofs, initiated contact with Rivera. Ms. Alofs had been assigned to the case in November, 2021, but had not previously had any contact with Rivera as the case had not previously been exposed for trial. On February 10, 2022, Ms. Alofs spoke with Rivera via telephone to relay the status of the case and upcoming trial. In that discussion, Ms. Alofs told Rivera the status of plea discussions and the State's most recent offer. Rivera told Ms. Alofs she was not happy with the offer and wanted Roberts out of jail so he could help support her and their son.
On February 16, 2022, Ms. Alofs received from Rivera an email which stated "I, Jasmine A. Rivera, under the pains and penalty of perjury that i(sic) do inhere state that i(sic) don't wish to pursue any action or criminal complaint against Kevin Roberts." (See State's Ex. 2.)
On February 18, 2022, the District Attorney's office received from Roberts a handwritten letter addressed to ADA Bozeman. (See State's Exhibit 4). In this letter Roberts advised ADA Bozeman he was rejecting the State's offer and suggested the State had no case. He specifically wrote
* Availability of a witness-jeopardy attaches when prosecution goes forward with trial knowing in advance of it's key witness absence actions are equivalent of acquittal.
* Prosecuting witness- someone who files a complaint that triggers a criminal prosecution and whose testimony the prosecution relies on to secure a conviction.
On March 3, 2022, Ms. Alofs initiated another phone call to Rivera to discuss setting up a Zoom call between Rivera and ADA Bozeman to discuss the upcoming trial. By then the State knew Rivera had left Maine and was residing in the Boston area. Rivera refused to participate in either a Zoom call or group call to discuss trial. She stated she would not accept service of a subpoena to testify, would not return to Maine to testify, and would take a criminal charge before returning to Maine. Rivera also stated she was no longer in Maine and refused to provide her address. Rivera's statements made during this call prompted the State to make a request of the jail to produce records of all phone calls between Roberts and Rivera, from which they learned Roberts had made 43 calls to Rivera between September 27, 2021 and February 23, 2022.
Trial was set to commence March 22, 2022.
On March 22, 2022, the morning trial was to commence, in the offer of proof to support an evidentiary hearing on the motion, the State included Rivera's lack of cooperation as prompting them to request the jail calls.
Detective Wade reviewed and listened to all 43 calls made by Roberts to Rivera from the jail. (See State's Exhibits 5 and 7 and Defense Exhibit 2; Reference to the each call will be by Index call # and date). Roberts made only one call, on October 17, 2021, using his own name and account. (See Index call # 16, Oct. 17, 2021). All other calls were made using another inmate's name and account. Every call to Rivera was to the same phone number, a number recognized to be Rivera's. And Detective Wade was able to recognize Rivera's voice from previous interactions. In addition to having one call from Roberts for voice comparison, Detective Wade also explained she knew it was Roberts that was speaking with Rivera based upon the content of their discussions. That content included details of their relationship, the status and well being of their son, future plans, Roberts' birthdate, and status of Roberts' court case. The content also included Roberts telling Rivera on October 17, 2021 that he had recently been disciplined, a detail Detective Wade was able to independently confirm. (Id.).
State's Exhibit 7 contains all of the calls, but the court could not ascertain the date of the calls or call index number. Defense Exhibit 2 also contains all of the jail calls, listed in increasing call duration. The court was able to cross reference the duration of call time for each call contained in Defense Exhibit 2 with the duration of each jail call as shown in the listing of calls set forth in State's Exhibits 5 and 6 to ascertain the date of each call and Index call number.)
As the defense pointed out at hearing, throughout the five months when these 43 calls were made, Roberts and Rivera discussed personal matters, including their relationship, the wellbeing of their son, and various matters and events going on in their personal lives. Throughout the calls, Roberts continuously expressed to Rivera his desire and interest in a committed relationship with her and their son, and expressed on more than one occasion his desire to many her. (See Index Call # 9, Oct. 5, 2021). They discussed potential future plans. And they had many discussions about their son, his achieving various milestones, growth, etc. It could be said Roberts was romancing Rivera, making her promises, and coaxing her to commit to him. Initially, Rivera seemed cautious to verbalizing a commitment to a future relationship with Roberts, but was certainly willing to consider. Her consideration and interest grew through the five-month period. And consistently through the calls she was entirely receptive to Roberts' interest in their son and his being part of their son's life. But Roberts and Rivera did not just speak about their relationship and their son, as they both knew the future was dependent on the outcome of Robert's criminal charges. On several occasions Roberts and Rivera discussed how to best deal with his pending assault case. The following is a sampling of those conversations:
Index call # 1, Sept. 27, 2027-September 27, 2021 was their first call after Roberts was arrested and incarcerated at the Androscoggin County Jail on September 24, 2021. From their exchange of hello's and "I love you's" it is obvious they had been talking regularly. Soon into the conversation Roberts asked "So I take it them people haven't been able to get in touch with you, light?" From the context of the calls, "them people" is reference to the State. Rivera responded "no", to which Roberts stated "..good, as long as you keep it like that ..it's going to be over."
Index call # 3, Sept. 29, 2021-soon into the call Roberts reminded Rivera they need to be "extra sneaky". After chatting some about their son and personal matters, they began discussing his case. Roberts told Rivera "They may try to reach out to you", 'they' meaning the State. Rivera responded "..nobody better call me..". Roberts stated "If they got a number for you, I'd change that motherfucker... .without accusers they can't do nothing." Rivera asked Roberts if that is what his lawyer said.
Index call # 4, Sept. 29, 2021- early in the call Roberts again reminded Rivera to be carefill using names, and said ".. .but even with calls they gotta have you present to prove I was talking with you..
Index call # 15, Oct. 14, 2O21-cox\y in the call Roberts started to discuss his case by telling Rivera he'd seen his discovery and some lady, a Ms. Wade, was trying to say that he had scared off his accuser. Rivera recognized Ms. Wade as Ashley Wade, and laughed at the assertion and said "..that's not the case at all." Roberts responded "Exactly.. .I'm just thankful and grateful..,my so-called accuser can stay wherever they at, you hear me?" Later in the call they discussed an upcoming court date. Rivera expressed concern about trial being delayed. Roberts stated he would get a speedy trial. Roberts further discussed "jeopardy" and said "..DA goes to court knowing key witness is absent.. .no case..at trial will drop it... ain't got no case." Rivera responded "I know, because they got no witness..they need the witness."
Index call #31, Dec. 24, 202/-Roberts and Rivera initially discussed the upcoming Christmas holiday and when Roberts would be coming home. Roberts then stated "I'm not too concerned about the situation." Rivera responded "They have no victim, we're good.. .they can't do nothing to me."
Index call # 39, Feb. 12, 2022- after some small talk, Rivera discusses writing a letter and sending it to his lawyer. Roberts responded "it's easier than that.. .call the head DA..". Roberts then tells Rivera to do nothing until he finds out when his court date would be, because if she contacted the DA it may cause them to drag it out. Later Roberts told Rivera to "..let them know you're not around." Rivera assured Roberts "They can't do nothing without me.. .no face, no case." Towards the end of the call Rivera told Roberts that Courtney, the victim witness advocate from the DA's office had already tried to call her, and that she needed to call her back. Roberts told Rivera to block her number when she called.
Index call # 40, Feb. 12, 2022- the conversation returned to Rivera writing a letter. Rivera explained she was going to type it up and make copies. Roberts stated "I don't care what you do as long as you just don't come..". Rivera assured him she would not come to court. Roberts then explained what he had learned from Black's Law Dictionary, to the effect that if the State went forward with trial leno wing the key witness would be absent, jeopardy attaches and it would be an acquittal. Roberts stressed to Rivera the State can't move forward as long as she didn't show up.
The substance of this call puts into sharper view the handwritten letter Roberts wrote to the State at about the same date. (See State's Exhibit 4). Similar to his discussion with Rivera, in his letter to ADA Bozeman, Roberts conveyed his belief that the State would lose if it proceeded to trial knowing the key witness was absent.
Index call # 43, Feb. 23, 2022- after some small talk Rivera told Roberts she had sent the letter. Roberts asked "They ain't got no number or address, right?" Rivera responded "no". Roberts responded "Then I'm good".
On March 23, 2022, what would have been the final day of trial had it proceeded as scheduled, Rivera telephoned Ms. Alofs to inquire how the trial had gone. Rivera became upset when told the trial had not proceeded but that the State was still pursuing the charges. Rivera again became angry, stating she wanted Roberts released from jail, and that she would not return to Maine if subpoenaed. And Rivera again refused to provide her address.
Although trial had been continued, to complete its record, on March 23, 2022, the State issued a witness subpoena to Auburn Police to be served on Rivera. The State knew Rivera had already left Lewiston and was no longer in Maine, so service was attempted at the only address known, which at the time was 66 Whitney Street, Auburn, Maine. Officer Pelletier testified service was not made, and he could not ascertain any further addresses for Rivera, other than she was believed to be in the Boston area.
As part of her investigative role reviewing the 43 jail calls, Detective Wade learned that Rivera told Roberts on December 3, 2021 that her address was 32 Center Street in Brookline, Massachusetts. (See State's Exhibit 7, and State's Exhibit 5, Index Call # 23). On June 15, 2022, another subpoena was prepared using the Brookline address and sent to Brookline Police to attempt service on Rivera for her to appear at the June 22, 2022 hearing on this motion. Service was not made and the officer attempting service made the notation "I was unable to make service because old address; no forwarding".
Standard of Review- Forfeiture by Wrongdoing
The Confrontation Clause as set forth in the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. However, the Confrontation Clause is 'most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding," Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354 (2004). The United States Supreme Court has acknowledged two forms of testimonial statements admissible at common law even though unconfronted. Gilles v. California, 545 U.S. 353, 358, 128 S.Ct. 2678 (2008). The first are dying declarations, and the second are "statements of a witness who was detained or kept away by the means of or procurement of the defendant. Id. This second type is referred to as forfeiture by wrongdoing. Id.
Forfeiture by wrongdoing was first addressed by the United States Supreme Court in Reynolds v. United States, 98 U.S. 145 (1879). In that case the Court permitted the prior testimony of the defendant's wife when it was found that the defendant had kept his wife away from home so she could not be subpoenaed. Id. at 148-150. The Court held that admission of the statements did not violate the defendant's right to confront witnesses because the witness was absent because of the defendant's "wrongful procurement". Id. at 158.
The forfeiture doctrine was also discussed in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (2006). Although the forfeiture doctrine was not applied by the trial court in Davis, in response to Respondent's concerns that greater flexibility in the use of testimonial evidence in domestic violence cases was needed because of intimidation or coercion of victims, the Supreme Court wrote "But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal trial system. We reiterate what we said in Crawford: "that the rule of forfeiture by wrongdoing... extinguishes confrontation claims on essentially equitable grounds". Id. at 833; citing Crawford v. Washington, 541 U.S. 36,62, 124 S.Ct. 1354 (2004). The Supreme Court has further reconciled that wrongdoing that results in the forfeiture of confrontation rights also includes a forfeiture of hearsay rights. Gilles, 545 U.S. 353, 365.
In 1997, the Supreme Court approved the Federal Rule of Evidence entitled "Forfeiture by wrongdoing," which applies only when the defendant "engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.", essentially codifying the forfeiture doctrine. Fed. Rule Evid. 804(b)(6); see Gilles, 545 U.S. 353, 367; Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266 (2006).
Maine has not ruled on the forfeiture doctrine and there is no Maine Rule of Evidence setting forth an exception to the hearsay rule when a declarant is unavailable due to wrongdoing of the defendant. However, no state or jurisdiction has rejected the forfeiture doctrine, and looking around the country a plurality of states have endorsed it.
This being a case of first impression for Maine, a concern of the court in determining the applicability of the forfeiture doctrine is applying the appropriate standard of review and burden of persuasion. At a minimum, the state must establish that the defendant have as his intent the particular purpose of making the witness unavailable to testify at trial. Gilles at 367; cited in State v. Byrd, 967 A.2d 285, 296 (N.J. 2007). In general, the rule of forfeiture is based on the defendant's wrongful conduct or misconduct. Without question the doctrine applies to cases where the defendant murders, threatens or intimidates a witness in an effort to procure that witnesses unavailability. Commonwealth v. Edwards, 830 N.E.2D 158, 168-69 (Mass. 2005) But misconduct sufficient to give rise to forfeiture is not limited to use of threats, force or intimidation. State v. Hallum, 606 N.W.2d 351, 356 (IA 2000). "It has also been held to include persuasion and control by a defendant, the wrongful nondisclosure of information, and a defendant's direction to a witness to exercise the fifth amendment privilege." Id., citing Steele v. Taylor, 684 F.2d 1193, 1201 (6th Cir. 1982). And it's been held that the nature of the defendant's conduct is not as important as the effect of that conduct on the witness's willingness to testify at trial. Id.
The test for application of the doctrine adopted by the Commonwealth of Massachusetts requires the prosecution to show: (1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent of procuring the declarant's unavailability as an actual or potential witness. Edwards, at 170; relying on United States v. Dhinsa, 243 F.3d 635, 653-654 (2d Cir). And the court clarified that the defendant's involvement could be satisfied by collusion with the witness.
In addition, the Court in Edwards set forth a test for causation. The defendant must have contributed to the witness's unavailability in some significant manner. Edwards at 171. The causal link necessary between a defendant's action and a witness's unavailability may be established where: (1) a defendant puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure; (2) a defendant physically prevents a witness from testifying; or (3) a defendant actively facilitates the carrying out of the witness's independent intent not to testify. Id.
This court will apply the standard and test for causation set forth above from Edwards, which is consistent with Gilles, as well as Fed. Rule Evid. 804(b)(6). As for the burden of proof, a majority of jurisdictions require the prosecution to prove forfeiture by wrongdoing by a preponderance of the evidence. Edwards at 172. A minority of jurisdictions require proof by clear and convincing evidence. The U.S Constitution and U.S. Supreme Court set only the minimum requirements, and the Maine Supreme Court may set higher protections of Constitutional rights and require a higher burden of proof. This being a matter of first impression in Maine, this court will require proof by clear and convincing evidence. To meet that threshold, the State must provide sufficient proof such that the fact finder has an abiding conviction that the truth of the factual contentions are highly probable. Alexander, Maine Jury Instructions, §713 (2019-2020 ed.).
Discussion
1. Is the witness unavailable?
Maine Evidence Rule 804(a)(5) provides, in pertinent part
"Unavailability as a witness" includes situation in which the declarant:.. (5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means.
This rule is very similar to Federal Evidence Rule 804(a)(5), and as previously indicated, the Federal Evidence Rules provide as an exception to the hearsay rule statements offered against a parly that wrongfully caused the declarant's unavailability. See Fed. Rule Evid. 804(b)(6). Maine law provides that Rule 804(a)(5) requires the proponent of hearsay statement make a good faith attempt to procure attendance of the witness. State v. Scholz, 432 A.2d 763, 765 (Me. 1981). What constitutes a "good faith effort" is a question of reasonableness and depends on the particular facts and circumstances of the given case. Id. The Court in Scholz stated "..the demands of the Confrontation Clause require the trial court to be rigorous in demanding prosecutorial evidence to satisfy its burden of proving unavailability of the declarant." Id. Interestingly, although the Confrontation Clause is a Constitutional protection for defendant's charged with a crime, the Defendant here attempts to abuse that protection by participating in making his accuser unavailable.
Prior to February, 2022, the State believed Rivera was a cooperating witness. After the alleged assault on October 7, 2020, Rivera had regular conduct with Detective Wade. Rivera even contacted Detective Wade to report Roberts was contacting her in December, 2020.At that time, Rivera reported she was still afraid of Roberts, particularly when he suggested she run away with him and not testify, And Rivera initiated contact with Detective Wade in June or July 2021 to inform her she was moving to Boston, The State had no reason to believe Rivera's level of cooperation was changing until February 10, 2022, In February, 2022, Rivera made it patently clear she was no longer cooperating. On February 10, 2022 she told Ms. Alofs she wanted Roberts released from jail, and on February 16, 2022 she emailed Ms. Alofs a statement indicating she did not want any criminal actions brought against Roberts.
Important is that by this time the State knew Rivera had left the State of Maine and had moved to the Boston area. But the State had no address by which to attempt to serve Rivera with a subpoena.
On March 3, 2022, still ample time before trial to get a subpoena served if Rivera's whereabouts were known, the news became worse for the State. In a phone call initiated by Ms. Alofs, and joined by ADA Bozeman, Rivera stated she was no longer in Maine, she would not return to Maine to testify, she would not accept a subpoena, she would not provide her address, and she would take a criminal charge before returning to Maine. Although the State had a phone number and email address, the State had no information as to Rivera's physical location, and therefore no ability to serve Rivera with a subpoena.
The Defense seemingly asserts the State could have tried harder, or sooner, to serve Rivera. Again, the State knew Rivera had left Maine, but did not know where she had gone. And the State having Officer Pelletier attempt service on March 23, 2022 should not be mistaken for anything more than it was... .as ADA Bozeman explained, those steps were taken to merely complete the record of showing Rivera had left the area and could not be served.
What also weighs in this "good faith" analysis is Roberts' conduct. As indicated, what constitutes a "good faith effort" is a question of reasonableness and depends on the particular facts and circumstances of the given case. Id. The Confrontation Clause and the placing a rigorous demand of showing unavailability on the proponent of hearsay evidence is a protection for defendants. Yet Roberts himself helped orchestrate Rivera's unavailability. In 2020 he began imploring Rivera to run away with him and not appear in court. And as the jail calls confirm, he repeatedly told Rivera if she didn't show up to testify, he'd "be good". The point being, Roberts' conduct, statements to, and influence upon Rivera are factors that must be weighed in assessing whether the State acted in good faith. On the facts outlined above, the court finds the State has proven by clear and convincing evidence it made a good faith attempt to procure Rivera's attendance at trial and was unsuccessful. The State has proven Rivera is unavailable.
2. Was Roberts involved in, or responsible for, procuring the unavailability of the witness?
From the facts discussed above, the court finds that initially Rivera was reluctant to accept Roberts' advances. As Detective Wade explained, Rivera was initially afraid of Roberts and did not want contact. But because they had a son together Rivera became open to contact related to their son. But as she reported to Detective Wade in December, 2020, Rivera became uncomfortable with even that contact when Roberts implored her to run away with him and not testify at court. Clearly Roberts planted the initial thoughts of Rivera not testifying.
Sometime thereafter, Rivera warmed to Roberts' advances. Rivera left Maine in June or July, 2021, after which Detective Wade lost contact with her. From listening to their first jail call on September 27, 2021, and the exchange of "I love you's", Rivera is clearly receptive to Roberts' advances. This was not the first time they had spoken. And in that first call he inquires whether "them people", meaning the State, have been able to get in touch with her. When Rivera responds "no", Roberts responds "..good, as long as you keep it like that. it's going to be over." Roberts was clearly coercing Rivera to make herself unavailable.
On September 29, 2021, Roberts inquires again if the State has contacted her. This time Rivera responds "nobody better call me", demonstrating she is now receptive to Roberts' requests. But Roberts makes an additional suggestion- "If they got a number for you, I'd change that motherfucker... .without accusers they can't do nothing." So not only did he ask her to make herself unavailable, Roberts provided Rivera with suggested methods to avoid being located.
On February 12, 2022, Rivera discussed with Roberts her plans to submit a writing. (See State's Exhibits 5 and 7, Index Calls 39 and 40). Roberts was receptive to that strategy, but he made it clear that what was most important was she not appear at trial. He initially suggested she call the DA instead, and later said that if she did call, to "..let them know you're not around", Towards the end of those calls Roberts was more direct, telling Rivera "I don't care what you do as long as you just don't come.''.
The court finds Roberts coerced Rivera not to appear at court to testify and to otherwise make herself unavailable. The Defense may argue that Roberts should not be held accountable for something Rivera willingly did, and that the calls actually demonstrate Roberts and Rivera wanted a relationship. Whether Roberts contact with Rivera was to coerce her to not appear in court or was to build a relationship with her is not a binary choice. Roberts may well have had an earnest desire to build a relationship with Rivera and their son. But this does not prevent Roberts from also wanting to persuade and coerce her to avoid trial.
As previously stated ".. when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal trial system. Davis v. Washington, 547 U.S. at 833; citing Crawford v. Washington, 541 U.S. 36, 62, 124 S.Ct. 1354 (2004). Misconduct sufficient to give rise to forfeiture is not limited to threats, force or intimidation. State v. Hallum, 606 N.W.2d 351, 356 (Iowa, 200). It can also include persuasion and control. Id. The court finds Roberts persuaded and coerced Rivera to not come to court and make herself unavailable. And the court further finds Rivera agreed. Numerous times during the jail calls Rivera expressed understanding her role- "nobody better call me"(Index Call #3); "..because they got no witness..they need the witness." (Index call #15); "They have no victim, we're good.. .they can't do nothing to me." (Index Call #31); "They can't do nothing without me.. .no face, no case." (Index Call #39); (see also Index call #40 where Rivera assured Roberts she would not come to court). To the extent Rivera had an independent intent not to testify, Roberts actively facilitated it. See Commonwealth v. Edwards, 830 N.E.2d 158,171.
The court finds that the State has proven by clear and convincing evidence that Roberts persuaded, coerced and colluded with Rivera for her not to appear at court and to make herself unavailable to testify.
3. Did Roberts act with intent in procuring the unavailability of the witness?
Roberts knew what he was doing. The best evidence of his intent was his handwritten letter to ADA Bozeman delivered on February 18, 2022. (See State's Exhibit 4). In it he told ADA Bozeman the State did not have a case and proceeded to outline his understanding of the concept of "jeopardy", and what he perceived to be the definitions of "availability of a witness" and "prosecuting witness". In short, Roberts was telegraphing to ADA Bozeman that he knew the State's key witness, Rivera, was not going to appear at court to testify. Roberts had the same discussions about "jeopardy" and going to trial without the key witness with Rivera on a number of occasions, including October 14, 2021 and February 12, 2022. (See Index Calls # 15 and 40). In his calls to Rivera, Roberts made his expectations clear- if she did not appear for trial the State would lose its case, he'd "be good". And Rivera understood the same and her role, that if she didn't appear the State would lose, "no face, no case". The State has proven by clear and convincing evidence that Roberts acted with intent in procuring Rivera's unavailability.
The State has met its burden by proving by clear and convincing evidence Roberts' misconduct in procuring Rivera's unavailability to testify at trial. Accordingly, the State s request for forfeiture of Roberts rights afforded by the Confrontation Clause and by hearsay objections to statements made by Rivera related to the alleged assault of October 7, 2020 is granted,
Prior to trial, a brief hearing or conference will be required prior to trial for the State to offer, and the court to give a preliminary ruling, on what hearsay statements made by Rivera regarding the October 7,2020 incident will be admissible at trial. The State will still be required to lay appropriate foundation and authenticate any recordings.