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Name: People v. Merchant
Case #: D075388
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/09/2019

Defendant’s right to cross-examine a prosecution witness was forfeited by wrongdoing where he coerced the witness from testifying at trial. Defendant was charged with kidnapping his girlfriend and other offenses. While in jail he called his girlfriend and urged her not to testify at trial, stating that his friends were “looking out for her” to make sure she complied. The girlfriend failed to appear at trial. The trial court relied on recordings of the jail phone calls to apply the forfeiture-by-wrongdoing exception to the Sixth Amendment right to confrontation and admitted the girlfriend’s hearsay statements to officers about the offenses. Defendant was found guilty. He appealed, arguing the forfeiture-by-wrongdoing exception was improperly applied in his case. Held: Affirmed. A criminal defendant has a Sixth Amendment right to confront his accusers. Thus, a trial court may not admit a witness’s testimonial hearsay statements against a defendant unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. However, in narrow circumstances a defendant may forfeit his right to confrontation by his own wrongdoing, which may be shown by a preponderance of the evidence. Here, during numerous phone calls, defendant engaged in wrongful conduct designed to prevent his girlfriend from testifying. The trial court properly found this coercive behavior satisfied the forfeiture-by-wrongdoing exception to the Sixth Amendment.

The trial court did not err in admitting defendant’s prior acts of domestic violence. Defendant argued on appeal the trial court abused its discretion in admitting prior acts of domestic violence against his girlfriend and a former girlfriend. Character evidence is generally inadmissible to prove a defendant’s conduct on a specific occasion (Evid. Code, § 1101). However, acts of prior misconduct may be offered for a noncharacter purpose, such as to show intent, common plan, or identity. There are exceptions to the ban on propensity evidence for defendants charged with domestic violence (Evid. Code, § 1109). Domestic violence includes abuse against a girlfriend or former girlfriend. Here, the prior acts evidence was properly admitted because of the similarities with the charged conduct, which was probative of intent and common plan, and the manner in which it reflected defendant’s pattern of control in romantic relationships.

The full opinion is available on the court’s website here: