State v. Moua Her

750 N.W.2d 258, 2008 Minn. LEXIS 283, 2008 WL 2200085

• Court: Supreme Court of Minnesota
• Decided: May 29, 2008
• Docket: A06-1743
• Status: Published

Opinions

OPINION

GILDEA, Justice.

Following a jury trial in Ramsey County District Court, appellant Moua Her was convicted of first-degree domestic abuse murder for the stabbing death of his estranged wife, Sheng Vang. Her filed a direct appeal to this court, arguing that the district court erred on Confrontation Clause and hearsay grounds by admitting Vang’s out-of-court statements to family and police, that the evidence presented at trial was insufficient to convict him of first-degree domestic abuse murder, and that the district court erred when it denied his motion for a mistrial. We affirm.

The evidence at trial established that Her and Vang met during high school in the late 1990s and that they married in a traditional Hmong ceremony in January 2000. Sometime in February 2001, Vang moved out of the home in which she was living with Her because of “marital difficulties.” A short time later, on March 10, the couple, along with family members, held a meeting to address “problems” in the couple’s marriage. Family members explained that they were present “to help mediate” the discussion. Her came to the meeting “to beg [the family] to ask Sheng to go back home with him.”

One of the problems addressed at the March family meeting was Her’s alleged physical abuse of Vang. Vang’s cousin testified at Her’s trial that during the family meeting Vang said that her husband “kept abusing her.” Vang’s uncle testified that Vang reported three incidents of abuse at the meeting. First, Vang claimed that Her hit her and when she left, he became so upset that he poured curry juice on her ceremonial wedding garments, damaging them. Second, Vang claimed that Her hit and kicked her.¹ Third, Vang-claimed that Her “electrocuted” her.

In response to Vang’s allegations at the family meeting, Her cried and admitted that some were true, but said that some were not. Her and his father did agree, however, to pay Vang for the wedding clothes Her allegedly damaged as part of the first incident of abuse. The document reflecting this agreement was introduced into evidence at trial.²

Soon after the March meeting, Vang returned to live with Her. The couple’s daughter was born in January 2002. But at the end of 2003 or the beginning of 2004, Vang took their daughter and left Her again. Vang left this second time because she was having “a difficult time with her relationship” with her husband.

The evidence showed that the couple continued to have difficulties even after they were no longer living together. One of Vang’s coworkers described an incident that occurred in late winter or early spring of 2004 when Her visited Vang at work. The coworker testified that the couple had an agitated conversation and that Vang asked Her three times to leave the office. Her walked away only after the coworker stepped into the conversation.

Another incident took place during approximately this same time frame when Her and Vang met at a restaurant in Saint Paul. While at the restaurant, Vang phoned her cousin and asked the cousin to pick her up. The cousin picked up both Her and Vang, then dropped Her off at a bus stop and Vang at her car. The cousin testified that Vang appeared to be afraid when she arrived.

The final incident took place on March 23, 2004, and resulted in Vang calling the police. Saint Paul police officer Amy Baumhofer and her partner were called to a Saint Paul restaurant around 6 p.m. where they met Vang. Officer Baumhofer described Vang as “very upset,” “crying,” “shaking,” and having “a hard time completing sentences.” Vang told Baumhofer that Her assaulted her just before the officers arrived. She said that she met Her at the restaurant to talk. During their conversation, Her “pulled [Vang] into the car by her hair and, as she fell into the passenger seat, [he] hit her with what she thought was a metal nightstick several times.” As he hit her, Vang screamed and tried to get away. She tried to leave the car, but it was locked. As Her began to back up the car, Vang was able to unlock the door, exit, and call police. Baumhofer testified that she observed “fresh” injury marks under Vang’s chin and on her clavicle and stomach. Upon receiving Vang’s statement, Baumhofer issued a probable cause pick-up for Her for domestic assault and called for a camera car to photograph Vang’s injuries.³ The photographs documenting Vang’s injuries were admitted as evidence during the trial.

As a result of this incident, Her was charged with domestic assault in violation of Minn.Stat. § 609.2242 (2004), but the charge was dismissed for reasons not reflected in the record. Vang also obtained a No Contact Order against Her and on April 26, 2004, she received an Order for Protection against Her.

Approximately 3 months later, on July 18, 2004, Vang was found dead in the garage of the home in which Her was living. That morning, Vang had told relatives that she was going to Her’s home to retrieve her citizenship papers, which she needed in order to obtain a passport for a family trip to Thailand. Just before 10 a.m., Vang called her mother and told her that she was almost at Her’s house. Sometime between 10 and 10:15 a.m., Her’s neighbor heard a “younger woman’s voice saying, No,” then a “skin-on-skin type slap.” The neighbor was standing 25 to 30 feet away from Her’s garage at the time. At 11:08 a.m., police were called to Her’s home. When the police arrived, Her’s mother directed them to the detached garage in back of the house. Inside, officers discovered Vang’s body lying face down on the floor with a white handled knife protruding from the side of her neck. Vang had been stabbed 63 times in her head, neck, shoulder, abdomen, back, and hand. The most serious wounds pierced her jugular vein, heart, and lungs. Vang’s estimated time of death was approximately 10 a.m.

Police apprehended Her 6 days later at a hotel in Addison, Illinois. He had been driving Vang’s car. Along with a check written by Vang and her driver’s license, Her’s wallet contained Vang’s credit cards and receipts from those credit cards for Her’s food and lodging while in Illinois. Vang’s citizenship papers were also found in the car.

Her was arrested and charged in connection with Yang’s death. Specifically, the indictment charged Her with first-degree premeditated murder in violation of MinmStat. § 609.185(a)(1) (2006); first-degree domestic abuse murder in violation of Minn.Stat. § 609.185(a)(6) (2006); and, second-degree intentional murder in violation of Minn.Stat. § 609.19, subd. 1(1) (2006).

Her’s jury trial took place June 5 to 16, 2006. At the end of June 18, the second day of testimony, the district court was notified that several jurors’ personal property had been stolen from the jury deliberation room. The court then adjourned for the day in order for jurors to work with sheriffs deputies regarding the investigation into the thefts. Property was stolen from four jurors, including $5-8 from an organizer, a video iPod with a leather case, a driver’s license and debit card, and $75 in cash.

The following morning, on its own initiative, the court interviewed each juror regarding the theft. Every juror stated that notwithstanding the theft he or she could continue to pay attention, focus on the trial, listen to the evidence, and fairly consider the case based on the facts. After jury questioning, Her moved for a mistrial. The district court denied the motion and found that the jurors appeared to be handling the situation well, had high spirits, seemed fully engaged in the process, indicated an ability to separate the thefts from their duties as jurors in determining the facts in the case, were giving full attention to the case, and could continue to be fair and impartial. On June 15, the Saint Paul Pioneer Press printed an article about the incident. Shannon Prather, We the Jury ... Just Got Ripped Off, St. Paul Pioneer Press, June 15, 2006, at Al. No juror was quoted in the article, and no evidence was presented that any juror read the article.

The jury found Her not guilty of premeditated murder, but guilty of first-degree domestic abuse murder and second-degree intentional murder. The district court convicted Her of first-degree domestic abuse murder and sentenced him to life in prison. This direct appeal follows.

I.

We first address Her’s argument that the admission of Vang’s statements at the March 10, 2001, family meeting and to police after the March 23, 2004, incident violated Her’s right to confrontation. The Sixth Amendment guarantees the accused the right to confront the witnesses against him. U.S. Const. Amend. VT. The Supreme Court held in Crawford v. Washington that the Confrontation Clause prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. 86, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The critical question under Crawford is whether the statement at issue is testimonial. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006) (Nontestimo-nial out-of-court statements, “while subject to traditional limitations upon hearsay evidence, [are] not subject to the Confrontation Clause.”)⁴; see also Whorton v. Bockting, — U.S. -, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007). The State bears the burden of proving that the statement it seeks to admit is nontestimonial. State v. Caulfield, 722 N.W.2d 304, (Minn.2006). Finally, whether the admission of evidence violates a defendant’s rights under the Confrontation Clause is a question of law that we review de novo. Id.5

A. Victim’s Statements to Family Members

Her claims that the admission of Yang’s statements to family members at the March 2001 meeting violated his right to confrontation. But statements made to non-government questioners who are not acting in concert with or as agents of the government are considered nontestimonial. State v. Scacchetti, 711 N.W.2d 508, 514-15 (Minn.2006). We hold that Vang’s statements to family members were nontesti-monial and that their admission therefore did not violate Her’s right to confrontation under the United States Constitution.⁶

B. Victim’s Statement to Police

Her also argues that Vangs statement to police after the March 2004 assault was testimonial. In Davis, the Supreme Court adopted a “primary purpose” test to determine whether a statement made during a police interrogation is testimonial and thus subject to Confrontation Clause restrictions under Crawford. 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. The Davis test provides that statements are nontestimonial when circumstances objectively indicate that the “primary purpose” of the questioning is to enable police to assist in an “ongoing emergency,” but are testimonial when the primary purpose is to “establish or prove past events potentially relevant to later criminal prosecution.” Id. at 2273-74. The essential question is whether, when examined objectively, police sought to determine what was happening, rather than what had happened. See State v. Warsame, 735 N.W.2d 684, 691 (Minn.2007) (citing Hammon, 126 S.Ct. at 2278).

The concurrence argues that the Davis “Court’s emphasis on primary purpose indicates that inquiries meant to orient the police with a situation are not per se testimonial, even when no emergency exists” and that “[wjithout making an initial inquiry into what happened, police officers in the field will be simply unable to determine whether, in fact, there is an ongoing emergency and how to respond to the situation at hand.” In essence, the concurrence would hold that because initial police inquiries are designed to determine if an emergency is ongoing, they are always nontestimonial. But the Supreme Court rejected just such a per se rule. In Hammon v. State, the Indiana Supreme Court had employed the analysis the concurrence posits. 829 N.E.2d 444, 453 (Ind.2005) (“Responses to initial inquiries [by officers] at a crime scene are typically not ‘testimonial.’ ”). The Supreme Court expressly rejected such a rule and the “implication that virtually any ‘initial inquiries’ at the crime scene will not be testimonial.” Hammon, 126 S.Ct. at 2279. But the Court “[did] not hold the opposite — that no questions at the scene will yield nontestimonial answers.” Id. The Court said that particularly in domestic dispute situations “[o]ffi-cers called to investigate * * * need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Id. (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)) (internal quotation marks omitted) (alteration in original). The Court went on to say that “[s]uch exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements,” but where statements are “neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were ‘initial inquiries’ is immaterial.” Id. (citing Crawford, 541 U.S. at 52 n. 3, 124 S.Ct. 1354). Consistent with the Court’s guidance, our rule of law is not that initial inquiries at the scene are always testimonial or always nontestimonial. Rather, as the Court counseled, the question is to be determined on a case-by-case basis.

Our post-Dams precedent confirms that we follow this case-by-case approach in

examining whether statements made to police are testimonial or whether the statements are nontestimonial because they relate to an ongoing emergency. See State v. Wright, 726 N.W.2d 464, 475-76 (Minn.2007); Warsame, 735 N.W.2d at 691-92. In Wright, the assailant pointed a gun at his live-in girlfriend and her sister before leaving the couple’s apartment. 726 N.W.2d at 470. The girlfriend called 911, told the operator how she had been threatened, described the assailant in response to operator questioning, and then asked her sister to speak with the operator after police arrived at the apartment. Id. at 467-68. The operator determined where the women were in the building and told the sister that police had found Wright and were following him. Id. at 468. The operator then learned that Wright was in police custody and informed the sister of that fact. Id. In response to the sister’s questions and concerns, the operator comforted her and assured her that the situation was under control. Id. Following Wright’s arrest, police officers interviewed the women in the apartment. Id. at 469. We concluded that the entire 911 call was non-testimonial, but that the police interviews at the scene were testimonial because the emergency ended when police took Wright into custody. Id. at 476.

In Warsame, police responding to a 911 call encountered the victim of a domestic assault walking down the street to the police station. 735 N.W.2d at 687. Before police were able to get out of the squad car or speak to the woman, she spontaneously said that her boyfriend “just beat [her] up.” Id. An officer determined the woman was associated with the 911 call to which he was responding, saw a large fresh bump on her forehead, and observed her to be “wobbly” and “potentially faint.” Id. He retrieved a medical bag from his vehicle, checked her injuries, and administered first aid. Id. As he tended to her injuries, the officer asked the victim an open-ended “what happened” question, which elicited a lengthy statement from the victim describing the assault. Id. After describing how her boyfriend hit and choked her, the victim told police that her boyfriend threatened to kill her while wielding a knife and that she feared for her life. Id. The officer called an ambulance and during the wait learned more information from the victim. Id. She said that she was pregnant and that after the assault her boyfriend left in her vehicle. Id. Once the paramedics arrived, the officer entered the victim’s home and spoke with her sister. Id. at 688. He learned that during the assault the victim’s sister attempted to grab the suspect’s knife, was cut, and passed out from the injury. Id. We concluded that there were three ongoing emergencies in Warsame: the victim’s medical condition, the defendant’s flight, and the victim’s sister’s injury. Id. at 695. Accordingly, we held that statements made before these emergencies ended were non-testimonial. Id. at 696.

We analyzed four objective factors in Wright and Warsame to determine whether the victim’s statements to law enforcement related to an ongoing emergency: (1) was the victim describing events as they were actually happening, rather than describing past events; (2) would a reasonable listener recognize that the victim was facing an ongoing emergency and seeking aid rather than just telling a story; (3) were the questions and answers designed to resolve a present emergency rather than learn about past events; and (4) how formal was the interview as evaluated by the victim’s demeanor and the environment in which she found herself. Wright, 726 N.W.2d at 473 (citing Davis, 126 S.Ct. at 2276-77); Warsame, 735 N.W.2d at 690 (citing Davis, 126 S.Ct. at 2276-77). We follow the same analysis in this case. We begin with a summary of the evidence the State offered about Vang’s interaction with police and then examine this evidence under the lens of these four objective factors to determine whether the State proved that Vang’s statement to police was non-testimonial.

The only evidence the State offered about Vang’s March 2004 statement to police was the testimony of Officer Baumhofer. Baumhofer testified that she was on duty on the day in question and was sent to meet a person at a restaurant at approximately 6 p.m. At the restaurant, she met Vang, who was alone and who said she had been assaulted by her husband who was not at the restaurant when police arrived. Vang said that the assault had happened right before police arrived. Baumhofer described Vang as very upset, but said that she was able to describe the assault after composing herself. Baumhofer observed fresh marks on Vang’s chin, clavicle, and stomach, which Vang had said were caused by the assault. Baumhofer issued a call for Her to be arrested and called for a camera car to photograph Vang’s injuries.

With regard to the first factor from Wright and Warsame, the evidence shows that Vang reported a completed assault to police, an event that was over by the time police arrived. The State did not offer any evidence of the 911 call in this case. Rather, the record discloses only that Vang called police to meet her at a restaurant after she had gotten away from her attacker and after her attacker had left the scene. Baumhofer found Vang alone inside the restaurant, expecting police to arrive. From the testimony the State offered, it is clear that Vang described an event that had ended.⁷

Regarding factors two and three, the State offered no evidence from which a reasonable listener could conclude that there was an ongoing emergency. A comparison of the record in this case with that of Wright and Warsame makes this clear. Unlike in Wright, where we recognized that the emergency continued until the suspect was in custody, the State in this case did not offer any evidence that Vang was afraid or had reason to be afraid that her attacker would return to the scene, or that he continued to be a threat to Vang or anyone else after leaving the scene. See Wright, 726 N.W.2d at 469 (discussing victim’s ongoing fear of suspect). We also recognized that the emergency continued in Warsame until the suspect was apprehended. 735 N.W.2d at 696. But in that case, we noted that an objective observer could conclude from the victim’s statements that the suspect was armed with a dangerous weapon, and that because the suspect remained at large the emergency continued. See id. at 694 (noting that an ongoing emergency may continue to exist “when a dangerous suspect remains at large”). In this case, Vang’s statement indicated that Her used a weapon to assault her — a “metal nightstick.” But unlike in Warsame, the State did not offer any evidence from which an objective observer could conclude that Her continued to present a danger to police or the public because he had injured or threatened others.

The record does reflect that Baumhofer noticed fresh injury marks on Vang’s chin, clavicle, and stomach, but the State did not establish on the record that Baumhofer thought Vang needed any medical attention as a result of these injuries. Cf. Warsame, 735 N.W.2d at 693 (concluding “that questions addressing a victim’s medical condition may qualify as an interrogation designed to meet an ongoing emergency”). Unlike in Warsame, Baumhofer did not retrieve an emergency medical bag or call an ambulance. Rather, she summoned a “camera car” to document Vang’s injuries and called for Her to be arrested, but the State did not establish which action Baum-hofer took first.⁸ In sum, the officer’s actions documented in this record do not indicate to an objective observer that police were attempting to resolve a present emergency.

Regarding the fourth factor, the record does not reflect the level of formality of the interview, and the State failed to establish whether, like in Warsame, Vang simply blurted out her story immediately upon encountering Baumhofer or whether the statement came out in response to formalized questioning.⁹ Finally, as to the environment in which the police encountered the victim, while Yang was clearly upset when she spoke to Baumhofer, she does not appear from the record to have been in the same type of vulnerable environment as the victims in Wright and Warsame when they made statements we found to be nontestimonial. Vang met police inside a public place after she had gotten away from her attacker, and the State did not offer any evidence that Yang said she was afraid that Her was going to find her in the restaurant and continue his attack. See Warsame, 735 N.W.2d at 691 (discussing Hammon, 126 S.Ct. at 2278, and noting that statements were not related to an ongoing emergency because “ ‘there was no immediate threat to’ ” the victim).

For all of these reasons, we conclude that the State did not meet its burden to prove that Vang’s statement to police was nontestimonial. We do not hold, as the concurrence states, that Vang’s statements to Baumhofer “are inadmissible under Crawford * * * and its progeny” because the statements are testimonial. We, in fact, do not make a determination as to the testimonial or nontestimonial nature of the statements. We hold only that the State failed to meet its burden to show that the primary purpose of the interrogation in this case was to address an ongoing emergency.

The concurrence takes a different approach, which ignores the State’s burden of proof, and it reaches a conclusion that the statements were nontestimonial based on its analysis of evidence the State simply did not offer. But as the concurrence reminds us, it is “ ‘incumbent on courts to be watchful of every inroad on a principle so truly important’” as the right to confrontation. See infra, 750 N.W.2d at 284, (Page, J., concurring) (quoting United States v. Burr, 25 F. Cas. 187, 193 (C.C.D.Va.1807) (No. 14,694)). Because the principle is so important, the State must be held to its burden before the principle can give way. See Caulfield, 722 N.W.2d at 308. The State did not meet that burden here.¹⁰

C. Forfeiture by Wrongdoing

As an alternative to its argument that Vang’s statements were nontestimonial, the State argues that Her forfeited his right to confront Vang by causing her unavailability at trial. Under the forfeiture-by-wrongdoing doctrine, a defendant is, in essence, estopped from asserting his confrontation rights. The doctrine proceeds from the premise that it would be inequitable to permit the defendant to object on confrontation grounds to the statements from a witness whom the defendant prevented from testifying. See Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244 (1878) (“The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts.”). In Crawford, the Supreme Court reaffirmed its support of the doctrine as an exception to the Confrontation Clause: “[T]he rule of forfeiture by 'wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds.” 541 U.S. at 62, 124 S.Ct. 1354 (emphasis added).

We applied the forfeiture-by-wrongdoing doctrine in a case factually similar to this one. See State v. Langley, 354 N.W.2d 389, 400 (Minn.1984). In Langley, the defendant was found guilty of drowning his estranged wife, Rose, in the bathtub. Id. at 391. At trial, the State introduced evidence from Rose’s son, three of Rose’s friends, Rose’s counselor, and a police investigator, all of whom testified to a series of incidents of abuse and threats against Rose by Langley over the years. Id. at 396. Langley argued that admission of the evidence of a 4-year-old assault and “hearsay allegations” of subsequent assaults violated his Confrontation Clause rights. Id. We held that a defendant cannot invoke his Sixth Amendment rights “as a shield to protect him[self] from the ramifications of having murdered his wife * * * because the evidence is strong that he has been the instrument of the denial of his own right of cross-examination.” Id. at 400.

Her and the concurrence contend that the forfeiture doctrine does not apply in this case because the State did not prove that Her killed Vang with the specific intent of preventing Vang from being a witness against him.¹¹ The State contends that forfeiture applies because there is no requirement in a murder case that the killer’s motive be to silence the victim. In Langley we did not examine whether the defendant killed his wife in order to silence her. See 354 N.W.2d at 400. In Wright, however, we remanded the forfeiture issue to the district court and indicated that one of the things the State would need to prove in order to rely on the doctrine was whether the defendant specifically intended to procure the witness’s unavailability at trial. Wright, 726 N.W.2d at 482.

But Wright was not a murder case; it was a domestic assault case where the defendant allegedly tampered with the lead witnesses against him. Id. at 470-71. Where a witness is alive and thus theoretically available to testify, but does not appear for some reason, it makes sense to impose a burden on the State to show that the reason the witness does not appear is because the defendant intended to procure her absence. See id. at 482. But when a defendant intentionally murders the witness, imposing the additional motive element is inconsistent with the equitable notions underlying the forfeiture-by-wrongdoing doctrine.

Several courts have held, as we did in Langley, that forfeiture applies in murder cases without requiring that the State prove that the motive for the murder was the defendant’s desire to prevent the victim from testifying. See United States v. Garcia-Meza, 403 F.3d 364, 370 (6th Cir.2005) (“The Supreme Court’s recent affirmation of the ‘essentially equitable grounds’ for the rule of forfeiture strongly suggests that the rule’s applicability does not hinge on the wrongdoer’s motive.”); United States v. Cromer, 389 F.3d 662, 679 (6th Cir.2004); United States v. Mayhew, 380 F.Supp.2d 961, 970 (S.D.Ohio 2005); State v. Sanchez, 341 Mont. 240, 177 P.3d 444, 456 (2008); People v. Giles, 40 Cal.4th 833, 55 Cal.Rptr.3d 133, 152 P.3d 433, 443 (2007), cert. granted, — U.S. -, 128 S.Ct. 976, 169 L.Ed.2d 800 (2008); State v. Jensen, 299 Wis.2d 267, 727 N.W.2d 518, 534-35 (2007); State v. Meeks, 277 Kan. 609, 88 P.3d 789, 793-94 (2004); People v. Moore, 117 P.3d 1, 5 (Colo.Ct.App.2004); People v. Bander, 269 Mich.App. 174, 712 N.W.2d 506, 514-15 (2005).¹² But see State v. Romero, 141 N.M. 403, 156 P.3d 694, 703 (2007) (citing Fed.R.Evid. 804(b)(6) and holding that “the prosecution is required to prove intent to procure the witness’s unavailability in order to bar a defendant’s right to confront that witness”); Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1062 n. 4 (2001) (citing Pennsylvania rule of evidence on forfeiture and holding that specific intent to silence is required before the forfeiture doctrine applies in a murder case).¹³

Cases from other jurisdictions likewise recognize the distinction implicit in our cases between a witness tampering case, where intent to silence is required, and a murder case, where the additional element of intent to silence is not required when the defendant is responsible for the death of the witness. See Sanchez, 177 P.3d at 455 (discussing distinction); People v. Melchor, 362 Ill.App.3d 335, 299 Ill.Dec. 8, 841 N.E.2d 420, 433 (2005) (same).¹⁴ The distinction is grounded in the same equitable principle that underlies the forfeiture doctrine. As the Montana Supreme Court recently noted, the forfeiture doctrine “derives from the maxim that no person should benefit from the person’s own wrongdoing. The natural result of a deliberate killing is always that the victim is unavailable to testify.” Sanchez, 177 P.3d at 456 (internal citations omitted). In that circumstance, where the defendant’s “intentional criminal act results in a victim-declarant’s death,” the defendant will benefit from his “wrongdoing if the defendant can use the death to exclude the victim-declarant’s otherwise admissible testimony, regardless of whether the defendant specifically intended to silence the victim-declarant.” Id. We agree with the Montana Supreme Court that “[s]uch a result undermines the judicial process and threatens the integrity of court proceedings, and though courts may not ‘vitiate constitutional guarantees when they have the effect of allowing the guilty to go free,’ nor must they acquiesce in the destruction of the criminal-trial system’s integrity.” Id. (citation omitted); see also United States v. Rouco, 765 F.2d 983, 995 (11th Cir.1985) (finding, in a case where the defendant was charged with murdering an agent of the United States Bureau of Alcohol, Tobacco and Firearms, that the defendant “waived his right to cross-examine [the agent] by killing him” and stating that “[t]he law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him” (internal quotation omitted)); Melchor, 299 Ill.Dec. 8, 841 N.E.2d at 433 (noting that “a defendant should not be allowed to escape the forfeiture by wrongdoing based on his or her motive in killing the victim. Such a rule is certainly logical; otherwise, defendants would be able to profit from their own wrongdoing”).

Her does not dispute that if we apply the forfeiture doctrine in the same way we applied it in Langley, he has forfeited his confrontation rights. We require “a compelling reason” to overrule precedent. See State v. Lee, 706 N.W.2d 491, 494 (Minn.2005) (internal quotation omitted). The only argument Her offers as to why we should not follow Langley is premised on his citation to State v. Bradford, 618 N.W.2d 782 (Minn.2000). But we did not even discuss the forfeiture-by-wrongdoing doctrine in Bradford and that ease therefore does not provide a reason for us to depart from precedent.

For its part, the concurrence suggests that Langley must be overruled because there is no historical support for application of the forfeiture-by-wrongdoing doctrine to the facts presented in Langley,¹⁵ The concurrence is mistaken. The basis for the doctrine is the equitable concept that no one should be permitted to profit from his wrongdoing, and this principle has long been a part of the common law. See Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232-33, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959) (citing cases and noting that the principle is “[djeeply rooted in our jurisprudence”); Wellner v. Eckstein, 105 Minn. 444, 462, 117 N.W. 830, 838 (1908) (Elliott, J., dissenting) (“The doctrine that no man may profit by his own wrong lies deep down among the foundations of English jurisprudence.”); Herbert Broom, A Selection of Legal Maxims 204 (3d ed. 1852).¹⁶

The concurrence also argues that Langley must be overruled because of Davis. The concurrence’s reliance on Davis to support its construction of the forfeiture doctrine — that the doctrine applies in murder cases only if the motive for the murder was to prevent the victim from being a witness — is misplaced. The Court in Davis expressly noted that it was “tak[ing] no position on the standards necessary to demonstrate * * * forfeiture.” 126 S.Ct. at 2280. Nonetheless, the concurrence argues that Federal Rule of Evidence 804(b)(b) contains an intent requirement¹⁷ and “in Davis the Supreme Court acknowledged the constitutional underpinnings of Rule 804(b)(6)” when it observed that the rule “codifies the forfeiture doctrine.” See Davis, 126 S.Ct. at 2280. While the dicta in Davis regarding Rule 804(b)(6) has been interpreted by one court as imposing an intent requirement, see People v. Moreno, 160 P.3d 242, 245-46 (Colo.2007), we agree with the greater weight of authority, which holds that this dicta does not impose an intent-to-silence requirement in murder cases. See Sanchez, 177 P.3d at 454-55; Giles, 55 Cal.Rptr.3d 133, 152 P.3d at 443 & n. 5; Jensen, 727 N.W.2d at 534-35; cf. Crawford, 541 U.S. at 61, 124 S.Ct. 1354 (noting that the rights secured by the Sixth Amendment do not depend on “the vagaries of the rules of evidence”).¹⁸

We conclude that Langley controls the outcome in this case. As in Langley, 354 N.W.2d at 400, we hold that the applicability of the forfeiture-by-wrongdoing doctrine does not depend in this case on the State proving that Her murdered Vang with the specific intent of preventing her from testifying.¹⁹

At oral argument, Her argued that application of the forfeiture-by-wrongdoing doctrine in this way undermines his presumption of innocence. The applicability of the doctrine depends on a finding that Her was responsible for Vang’s death. But Her contends that no determination can be made that he was responsible for Vang’s absence until the jury has found him guilty of the murder. This argument does not preclude application of the doctrine here.

In cases where the forfeiture-by-wrongdoing doctrine is at issue, the district court should resolve the matter consistent with its obligations to make determinations on the admissibility of evidence. See Minn. R. Evid. 104 (discussing district court’s ruling on admissibility of evidence). As we held in Wright, the State must prove, by a preponderance of the evidence, that the defendant is responsible for the witness’s absence. See 726 N.W.2d at 482. The forfeiture inquiry must be done outside the presence of the jury, and the jury is to be given no information about the court’s ruling. See May-hew, 380 F.Supp.2d at 968 (discussing the trial court’s preliminary ruling that the defendant was responsible for the death of a witness as basis for application of the forfeiture doctrine and noting that whereas the trial court makes the finding based on a preponderance of the evidence, the jury makes its finding beyond a reasonable doubt).²⁰

The district court in this case did not rule on the forfeiture-by-wrongdoing doctrine apparently because it concluded that the statements were nontestimonial, a conclusion we have now reversed. In such a situation, we normally would remand to the district court for a forfeiture determination. See Wright, 726 N.W.2d at 482 (remanding to district court). In Langley, however, we decided the forfeiture issue on appeal. 354 N.W.2d at 402. We did so because the weight of the evidence viewed in the light most favorable to the prosecution was “inconsistent with any rational hypothesis except that of [Langley]’s guilt.” Id. at 396. Similarly in this case, the evidence is strong that Her was responsible for Vang’s absence at trial. Her did not present any evidence to the contrary, and he did not deny that he was responsible for Vang’s death. The focus of his defense was on the first-degree murder charge. He denied allegations of domestic abuse and denied that he killed Vang with premeditation, and argued instead that he “snapped.” Given the state of the record, we decide the forfeiture issue on appeal and hold that Her forfeited his right to confront Vang.²¹

II.

We turn next to Her’s argument that Vang’s statements to family and police should not have been received into evidence because they were hearsay. We generally will not reverse a district court’s evidentiary rulings absent clear abuse of discretion. Caulfield, 722 N.W.2d at 308.

A. Family Member Testimony about Victim’s Statements

We first consider whether the district court erred by admitting testimony from Vang’s family members describing Vang’s allegations of abuse. This testimony relates to statements Vang made at the March 2001 family meeting. The State sought to introduce that evidence under Rule 804(b)(5),²² the residual exception to the rule against hearsay evidence.²³

The residual exception permits the introduction of “[a] statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness.” Minn. R. Evid. 807. Trial courts use a “totality of the circumstances” approach, “looking to all relevant factors bearing on trustworthiness,” to decide whether an extrajudicial statement has circumstantial guarantees of trustworthiness equivalent to the other hearsay exceptions. State v. Stallings, 478 N.W.2d 491, 495 (Minn.1991). Considerations in this analysis include whether the statement was given voluntarily, under oath, and subject to cross-examination and penalty of perjury; the declarant’s relationship to the parties and her motivation to make the statement; the extent to which the declarant’s statement reflects her personal knowledge; whether the de-clarant ever recanted her statement; the existence of corroborating evidence; availability of evidence on the issue; reasons for the declarant’s unavailability; and the character of the declarant for truthfulness and honesty. State v. Keeton, 589 N.W.2d 85, 90 (Minn.1998) (citing State v. Byers, 570 N.W.2d 487, 492-93 (Minn.1997)); see also State v. Daniels, 361 N.W.2d 819, 830 (Minn.1985); State v. Hansen, 312 N.W.2d 96, 101-02 (Minn.1981).

Although not given under oath, subject to formal cross-examination or penalty of perjury, the totality of the circumstances surrounding the statements Vang made at the family meeting indicates that those statements satisfy our test for trustworthiness. See State v. Robinson, 718 N.W.2d 400, 410 (Minn.2006) (domestic abuse victim’s statement to a nurse contained sufficient circumstantial guarantees of trustworthiness that it was admissible under the residual exception). Vang gave the statements voluntarily, based on firsthand knowledge. She never recanted. Her statements were specific enough that her uncle was able to recall at trial — over 5 years after the family meeting — that Vang alleged three instances of abuse and what each of those instances entailed. The photo of Vang’s bruised leg, taken in February 2001, corroborated the allegation that Her hit and kicked her. And the fact that Vang moved away from her husband just weeks before the family meeting implies that Vang genuinely feared for her own safety. Additionally, Her’s response to the allegations of abuse — crying and admitting that some of Vang’s allegations were true — lends further support for Vang’s truthfulness. Because Vang was unavailable to testify at trial, no evidence of these incidents was otherwise available. Finally, the formality of the family meeting indicates that Vang would have had strong incentive to tell the truth about her husband’s abuse.²⁴ We hold that the district court acted within its discretion when it admitted the statements at trial.

B. Police Testimony about Victim’s Statement

We next consider whether the district court erred by admitting Officer Baumhofer’s testimony about the statement Vang made after the March 2004 attack. The State sought to introduce Vang’s statements as Rule 803(2) excited utterances. The basic elements of an “excited utterance” are “(a) that there be a startling event or condition, (b) that the statement relates to the event or condition, and (c) that the statement is made under the stress caused by the event or condition.” State v. Edwards, 485 N.W.2d 911, 914 (Minn.1992) (citing Minn. R. Evid. 803(2)). The district court may exercise its discretion to admit the evidence if it determines that the declarant was “sufficiently under the ‘aura of excitement’ ” when the statement in question was made. Id. (quoting Daniels, 380 N.W.2d at 782).

Baumhofer testified that Vang was upset, crying, shaking, and having a hard time completing sentences. She observed fresh wounds on Vang, indicating that the assault occurred immediately before police arrived at the restaurant. An assault is a startling event. Baumhofer’s description of Vang’s condition indicates that she was still under the stress caused by the assault at the time she made the statement. Accordingly, we hold that the district court acted within its discretion when it admitted Baumhofer’s testimony about Vang’s excited statement to her. See State v. Bauer, 598 N.W.2d 352, 366 (Minn.1999) (victim’s statement to her brother was an excited utterance because she was “very upset,” “extremely agitated,” and “very afraid”); State v. Berrisford, 361 N.W.2d 846, 850 (Minn.1985) (declarant’s statement 90 minutes after a murder was an excited utterance because he was “scared,” “shaky,” and “very upset”).

III.

We turn next to Her’s argument that the evidence was not sufficient to support his conviction for first-degree domestic abuse murder. Specifically, Her argues that the State did not offer sufficient evidence that he engaged in a past pattern of domestic abuse. When reviewing a claim that the evidence was insufficient, we examine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that [Her] was guilty beyond a reasonable doubt” of first-degree domestic abuse murder. State v. Moore, 481 N.W.2d 355, 360 (Minn.1992). We view the evidence in the light most favorable to the State and assume that the jury believed the State’s witnesses and disbelieved contrary evidence. Id. The jury is in the best position to weigh the credibility of the evidence and determine which witnesses to believe and how much weight to give their testimony. Id.

Minnesota Statutes § 609.185(a)(6) provides that whoever “causes the death of a human being while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse upon the victim * * * and the death occurs under circumstances manifesting an extreme indifference to human life” is guilty of first-degree murder. Domestic abuse is defined as “an act that constitutes one of several forms of assault, criminal sexual conduct, terroristic threats, or similar acts, and is committed against a household or family member.” State v. Crowsbreast, 629 N.W.2d 433, 436 (Minn.2001) (citing Minn.Stat. § 609.185(6) (2000)). The statute does not define the element of “past pattern of domestic abuse,” but we have said that “pattern” means individual incidents of abuse “tie[d] together * * * in a way that indicates that domestic abuse was a ‘regular way of acting’ for [the defendant].” State v. Clark, 739 N.W.2d 412, 422 (Minn.2007) (quoting State v. Robinson, 539 N.W.2d 231, 237 (Minn.1995)). Further, “the events must be sufficiently proximate in time to constitute a ‘pattern.’ ” State v. Cross, 577 N.W.2d 721, 727 n. 3 (Minn.1998).

With respect to the number of past acts required, we have recognized that “[t]he statute does not * * * specify a minimum number of incidents which must be proven in order to find a ‘pattern,’ ” but we have said that the acts “must involve some number of events which bear sufficient relationship to establish a similarity or principle around which they are organized.” Cross, 577 N.W.2d at 727 & n. 3. We have also held that a single act of domestic abuse is insufficient to constitute a pattern. State v. Grube, 531 N.W.2d 484, 491 (Minn.1995).

The State argues that our decision in State v. Sanchez-Diaz, 683 N.W.2d 824 (Minn.2004), stands for the proposition that the “pattern” element is satisfied by proving that the defendant committed at least two acts of abuse. But in Sanchez-Diaz we discussed three incidents of domestic abuse in the 2 years before the victim’s death. Id. at 833. In addition to the three specific instances of abuse, we also considered other evidence showing the pervasive nature of abuse in the relationship. Id. In particular, we found that Sanchez-Diaz’s statements that the victim feared him and that “everybody knew how we lived” were evidence that the abuse the defendant admitted “was part of the regular way in which [Sanchez-Diaz] related to the victim.” Id. at 832-33. Accordingly, our analysis in Sanchez-Diaz does not support the State’s argument for a bright-line rule that two acts of domestic abuse always constitute a pattern. Moreover, we recently concluded that two incidents of abuse committed within 1 year of the murder were insufficient to establish a regular way of acting. Clark, 739 N.W.2d at 422.

In sum, whether a past pattern of domestic abuse exists is a fact-intensive inquiry that often is not answered in purely mathematical terms. We do not focus only on the number of incidents of past abuse in order to determine whether a reasonable jury could have found a past pattern of domestic abuse. We consider the number, but we also carefully consider the evidence presented regarding the abuse “and the nature of [the defendant] and victim’s relationship as a whole.” Sanchez-Diaz, 683 N.W.2d at 832.

To prove a past pattern of domestic abuse in this case, the State introduced four instances of physical abuse. The first three were reported by Vang at the family meeting in March 2001, and happened sometime before she moved out of Her’s house in February of that year: Her hit Vang, then poured curry juice on her clothes after she left; Her hit and kicked Vang, which caused her to miss work; and Her “electrocut[ed]” Vang. In first-degree domestic abuse murder cases, we have consistently accepted the victim’s out-of-court allegations of abuse, if these allegations are otherwise admissible, as evidence establishing a past pattern of abuse. See Crowsbreast, 629 N.W.2d at 436 (victim’s statements to her mother and a battered women’s advocate qualified as past pattern evidence); Cross, 577 N.W.2d at 724 (victim’s statements to her sister and a friend qualified as past pattern evidence).' Vang’s three allegations of physical abuse made at the family meeting therefore qualify as past pattern evidence. And even though Her’s response to Vang’s allegations — crying and saying that some of the allegations were true — was not a full admission or as significant as the admissions in Sanchez-Diaz, 683 N.W.2d at 828, Her’s response provides further support for the legitimacy of Vang’s statements.

The fourth incident of abuse occurred at a St. Paul restaurant in March 2004 when Her dragged Vang into a car and hit her with a metal nightstick. Police testimony of a victim’s statement of abuse, if admissible, qualifies as past pattern evidence. See Crowsbreast, 629 N.W.2d at 435-36.

Her argues that because three years passed between the instances of abuse Vang reported in 2001 and the March 2004 incident, the State did not offer sufficient evidence of a past pattern of domestic abuse. We recently recognized that “some incidents are too distant in time from each other to constitute a pattern or regular way of acting.” Clark, 739 N.W.2d at 421. But Clark involved a couple who had been in a 16-year relationship. Id. There was evidence of two acts of abuse in the first few years of the relationship and then a 13-year lapse in the evidence of abuse. Id. Given that lengthy lapse, we held that the early acts of abuse were too remote to be considered part of a pattern with the acts committed 13 years later. Id.

By contrast, in Robinson, the couple’s relationship was much shorter in duration, lasting approximately 4 years. 539 N.W.2d at 233. There, we considered acts of abuse committed almost 2 years apart in assessing whether the State met its burden on past pattern. Id. at 234, 238. We also noted in that case that the victim had moved out of the couple’s home on three occasions during the relationship. Id. at 233.

Just as we declined to adopt a bright-line rule on what number of specific instances of abuse is sufficient to constitute a pattern, we also decline to adopt a bright-line rule establishing a cutoff when acts of abuse will always be too remote to be considered part of a pattern. Our precedent confirms that the question of remoteness is also a fact-intensive inquiry that must be examined on a case-by-case basis and that courts should examine the nature of the relationship as a whole when assessing whether the pattern element is satisfied.

In undertaking that fact-based analysis here, it is clear that this case is much closer to Robinson than it is to Clark on the question of the acts’ temporal relationship to each other. In this case, Her committed four specific acts of domestic abuse over the course of a relatively short relationship. Yang left Her twice during their 3-1/2 year marriage. And even after she left, the couple continued to have what could be characterized as difficult encounters, with the final encounter before Vang’s death resulting in an order for protection and charges of domestic assault.

When considering all of the evidence together, including the four specific acts of domestic abuse, Her’s admissions and the other evidence about the nature of the couple’s relationship, and our standard of review, we conclude that a reasonable jury could find that Her’s regular way of behaving toward Vang was to abuse her. We therefore hold that the State provided sufficient evidence that Her had engaged in a past pattern of domestic abuse to support his conviction for first-degree domestic abuse murder.

IV.

We turn next to Her’s argument that the district court erred when it denied his motion for a mistrial. We review a district court’s denial of a motion for a mistrial for abuse of discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn.1998).

Her argues that he was denied a fair trial by an impartial jury when the district court did not declare a mistrial after the theft of the jurors’ personal property from the jury deliberation room. Her contends that the jurors became prejudiced when items of their personal property were stolen from the jury room on the second day of testimony, as they heard about Her taking Vang’s car to Illinois and using her credit cards to purchase food and lodging along the way.

In a situation involving potential misconduct by or affecting the jury, the defendant bears the initial burden to show “private communications or contact or other circumstances suggesting direct or indirect improper influence or jury tampering.” State v. Erickson, 597 N.W.2d 897, 902 (Minn.1999). Upon such a showing, prejudice is presumed, and the burden shifts to the State to overcome the presumption of prejudice. Id. (citing State v. Anderson, 379 N.W.2d 70, 81 (Minn.1985)).

In the present case, Her failed to demonstrate that jurors were improperly influenced by the thefts. Defense counsel’s only comment to the court was to mention that certain jurors expressed anger about the theft incident or “concern for safety.” He made no attempt to show how the seemingly random theft incident or its report in a local newspaper improperly influenced the jury or that the incident in any way implicated the question of Her’s guilt or innocence. There was no evidence that the thief was in any way connected to the parties or witnesses in this trial. There also was no evidence that the four jurors who lost property were specifically targeted by the incident or that the thief tried to influence or intimidate jurors by breaking into the jury room. See State v. Richards, 552 N.W.2d 197, 202-03, 210 (Minn.1996) (concluding that no prejudice arose from an accidental, minimal contact between the defendant and a juror’s family friend).

In addition, the district court on its own initiative examined all of the jurors in order to determine whether they could fulfill their duties fairly and impartially or whether they had been influenced by the theft. The record reflects that all of the jurors indicated that notwithstanding the theft, they could remain fair and impartial and would not be distracted by the incident. The judge also reminded the jurors of their obligation to decide the case based only on the evidence received in court.

Her argues that the district court should not have relied solely on testimony from the jurors, but should have assessed whether an objective juror would have been influenced by the theft. We have stated that the proper procedure is to “determine from juror testimony what outside influences were improperly brought to bear upon the jury.” State v. Cox, 322 N.W.2d 555, 559 (Minn.1982). The district court in this case therefore properly relied on the testimony from the jurors in determining that improper influence had not occurred.

We hold that the district court did not abuse its discretion in denying Her’s motion for a mistrial. See State v. Buford, 308 N.W.2d 31, 34 (Iowa 1981) (holding that attempted theft from a juror’s car did not warrant a mistrial); State v. Hawkins, 581 S.W.2d 102, 104 (Mo.Ct.App.1979) (concluding that the district court did not abuse its discretion when it refused to declare a mistrial after money was stolen from a juror’s motel room).

Affirmed.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

1 . To corroborate this incident, the State introduced evidence that on the day of the alleged abuse, Vang became ill at work and had to call her mother to bring her home. The State also introduced a photograph of Vang's bruised leg, taken in February 2001, allegedly documenting an injury caused by Her’s abuse.

2 . According to witnesses, the family also tape-recorded the meeting, but the tape itself was not introduced into evidence because it could not be found.

3 . The record does not establish which of these two things Baumhofer did first.

4 . In this case, the Supreme Court consolidated two state court cases—Davis v. State and Hammon v. State. 126 S.Ct. at 2270-73. We cite the case as Davis when referring to the opinion as a whole.

5 . Ohio v. Roberts, the precursor to Crawford and Davis, required nontestimonial statements to bear "adequate ‘indicia of reliability’ ” — either falling within “a firmly rooted hearsay exception" or bearing "particularized guarantees of trustworthiness.” 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quoting Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972)). In State v. Martin, decided before Davis, we indicated that nontestimonial statements had to meet the Roberts test to be admitted consistent with the Confrontation Clause. 695 N.W.2d 578, 584 (Minn.2005). In light of the Supreme Court's clarification in Davis, the Roberts test is no longer applicable. As several courts have recognized following Davis, if a statement is nontestimonial, the right to confrontation is not implicated. See, e.g., United States v. Feliz, 467 F.3d 227, 231 (2d Cir.2006); State v. Fischer, 272 Neb. 963, 726 N.W.2d 176, 181 (2007); State v. Lewis, 235 S.W.3d 136, 145 (Tenn.2007).

6 . At oral argument, Her suggested that we could interpret the Minnesota Constitution to supply broader Confrontation Clause protections than the United States Constitution and urged that we extend confrontation protection under the Minnesota Constitution to nontesti-monial statements. Generally, we "favor[] uniformily with the federal constitution.” Kahn v. Griffin, 701 N.W.2d 815, 824 (Minn.2005). Her offered no basis upon which we should extend greater protections under our constitution. See id. at 829 (discussing “nonexclusive list of factors” relevant to analysis of whether the state constitution affords broader protections). Accordingly, we decline to do so in this case.

7 .Baumhofer testified regarding Vang’s interrogation:

Q: [W]hat did she tell you had just occurred?

A: She said she had met her husband at the restaurant and that they had been talking. In the course of that conversation, she had been pulled into the car by her hair and, as she fell into the passenger seat, her husband had hit her with what she thought was a metal nightstick several times. As he was hitting her, she was trying to get away and she was screaming for him to stop hurting her. She tried the door and it was locked, and he started to back the vehicle up, and as he did that, she was then able to unlock the door and get out and call the police.

8 . The State asked Baumhofer:

Q: As a result of having observed some marks, scratches, I believe you testified to, did you request assistance to have these marks photographed?

A: Yes.

This testimony confirms that Baumhofer was documenting past events, not seeking to resolve an ongoing emergency.

9 . The concurrence speculates that Baumhofer's "questions appear to have been for the purpose of determining whether Vang was in need of emergency assistance and whether Her was a danger to law enforcement officers or others,” and that "[t]he circumstances that caused Officer Baumhofer to ask Vang what had transpired strongly suggest that her purpose was to ascertain whether an ongoing medical or other emergency existed.” As demonstrated above, the record contains no support for the concurrence’s speculation. Indeed, the State did not offer any evidence of the actual questions Baumhofer asked Vang.

10 . Upon a conclusion that testimonial statements were admitted in violation of the Confrontation Clause, we typically proceed to analyze whether the admission was harmless error. See, e.g., Wright, 726 N.W.2d at 476-79. The State made no argument that the admission of Vang's statement to Baumhofer was harmless. Accordingly, we do not reach the issue in this case.

11 . Her and the concurrence argue that, under majority rule, the forfeiture-by-wrongdoing doctrine requires a finding that Her specifically intended to silence Vang by killing her. Most of the cases Her and the concurrence reference, however, are witness tampering cases, where a witness to a separate crime committed by the defendant is later made unavailable by the defendant’s actions. In these situations, courts often require a showing that the declarant became unavailable to testify at least in part because the defendant intended to cause the declarant’s unavailability as a witness. See, e.g., United States v. Gray, 405 F.3d 227, 243 (4th Cir.2005) (applying Fed.R.Evid. 804(b)(6) and finding forfeiture). This case does not present such a situation.

12 . Langley is thus hardly the "anomalous outlier" the concurrence’s research represents it to be. Indeed, some courts apply the forfeiture doctrine more broadly than we have and do not require that the State prove the defendant’s intent to silence even in the context of witness tampering. See State v. Mason, 160 Wash.2d 910, 162 P.3d 396, 404 (2007) ("The finding of a specific intent to keep a witness from testifying argued by [defendant] is more than is warranted by the 'equitable' grounds upon which the rule is based.”).

13 . In contending that we must overrule Langley, the concurrence relies extensively (and with emphasis) on the view of one commentator, James F. Flanagan, Confrontation, Equity, and the Misnamed Exception for "Forfeiture" by Wrongdoing, 14 Wm. & Mary Bill Rts. J. 1193 (2006). As one of Flanagan’s colleagues in the academy notes, however, "[d]espite the fact that historically, forfeiture was limited to witness-tampering cases, after Crawford most courts have applied the doctrine to admit statements of murdered domestic violence victims, where witness tampering is not involved.” Myrna S. Raeder, Domestic Violence Cases After Davis: Is the Glass Half Empty or Half Full?, 15 J.L. & Pol’y 759, 778 (2007).

14 .The cases on which the concurrence relies also recognize this distinction. In People v. Moreno, a child witness who claimed to have been sexually abused by the defendant was "medically unavailable” to testify at trial. 160 P.3d 242, 243 (Colo.2007). The court found that the defendant did not forfeit his right to confrontation because he did not intend to cause the unavailability of the witness. Id. at 247. Yet it noted that while nonmurder cases require a showing of intent, there may be a "murder exception” to this requirement. Id. at 246 (citing People v. Stechly, 225 Ill.2d 246, 312 Ill.Dec. 268, 870 N.E.2d 333, 352-53 (2007) ("When a defendant commits murder, notwithstanding any protestation that he did not specifically intend to procure the victim’s inability to testify at a subsequent trial, he will nonetheless be sure that this would be a result of his actions. Murder is, in this sense, different from any other wrongdoing in which a defendant could engage with respect to a witness — more than a possibility, or a substantial likelihood, a defendant knows with absolute certainty that a murder victim will not be available to testify.”)).

15 . Based on its historical analysis, the concurrence contends that forfeiture cannot apply unless the absent witness previously testified in court against the defendant, was subject to cross-examination by the defendant, and the defendant thereafter kept her from testifying at subsequent proceedings. We agree that the facts of Reynolds involved such a situation, but nothing in the Court’s formulation of the doctrine in Reynolds or its reaffirmation of the doctrine in Crawford limits its applicability only to that circumstance. Indeed, if prior testimony were a condition of the doctrine’s applicability, the Court would not have reaffirmed it in Crawford because the witness at issue there had not been subject to prior cross-examination by the defendant. 541 U.S. at 38, 124 S.Ct. 1354 (noting that a statement given to police was played for the jury "even though [the defendant] had no opportunity for cross-examination” of the witness); see also Wright, 726 N.W.2d at 482 (remanding for factual determination of whether the defendant forfeited his confrontation right by procuring the unavailability of the victim and her sister, who had not been subject to earlier cross-examination).

16 . The concurrence also argues that the Supreme Court’s adoption of the forfeiture-by-wrongdoing doctrine in Reynolds is somehow inconsistent with our application of the doctrine in Langley. While the facts of Reynolds involved a claim of witness tampering and not murder, the Court did not purport to limit the doctrine only to the witness tampering context. The Court instead adopted a broad formulation of the rule consistent with the equitable principle that underlies the doctrine. See Reynolds, 98 U.S. at 159 (rejecting one treatise's ‘'seeming[] limit[ation]” of the rule only "to cases where the witness has been corruptly kept away” and noting that the only limitation of the rule, which the Court said was "long-established” and “rarely departed from,” is that the witness is absent because of “a wrong committed” by the defendant (emphasis added)); see also McDaniel v. State, 1 Morr. St. Cas. 336, 16 Miss. 401, 416 (1847) ("It would be a perversion of [the Confrontation Clause's] meaning to exclude the proof, when the prisoner himself has been the guilty instrument of preventing the production of the witness, by causing his death.”); Lord Morley’s Case, 6 How. St. Tr. 770, 770-71 (H.L.1666) (Eng.) (noting that where a witness is absent "by the means” of the accused, the forfeiture rule applies).

17 . The federal rule provides: "A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness” is not hearsay. According to the concurrence, "a number of states have encoded the forfeiture exception with the intent requirement intact.” Most of the state evidentiary rules cited by the concurrence, however, are nearly identical to Fed. R.Evid. 804(b)(6). See Cal. Evid.Code. § 1350(a)(1) (1995); Del. R. Evid. 804(b)(6); Mich. R. Evid. 804(b)(6); N.D. R. Evid. 804(b)(6); Pa. R. Evid. 804(b)(6); Tenn. R. Evid. 804(b)(6); Vt. R. Evid. 804(b)(6). The Minnesota Rules of Evidence do not contain this rule.

18 . Finally, the concurrence contends that we must overrule Langley because in Davis the Court said that the forfeiture doctrine applies only “when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims.” Davis, 126 S.Ct. at 2280. While the Court in Davis acknowledged that "the Sixth Amendment does not require courts to acquiesce" where defendants “seek to undermine the judicial process,” id. (emphasis added), the Court did not say that forfeiture applies “only " to that circumstance as the concurrence states. Instead, as noted above, the Court specifically declined to determine the standard necessary for application of the doctrine other than to reaffirm the equitable principle underlying the doctrine. Id.

19 . While the concurrence protests that our application of the forfeiture doctrine "ignores 20 years of [our] precedent,” the concurrence is unable to cite a single example of why that is so. In other words, the concurrence cites no Minnesota case that stands for the proposition that forfeiture will apply in a murder case only if the State proves that the motive for the murder was the defendant’s desire to prevent the murder victim from testifying against him. To the contrary, State v. Black, cited by the concurrence, supports the applicability of the forfeiture doctrine to any situation where defendant’s "wrongdoing” causes the witness to be unavailable. 291 N.W.2d 208, 214 (Minn.1980) ("The law is clear that if a witness is unavailable because of the wrongdoing of the defendant, the defendant cannot complain if other competent evidence is introduced to take the place of the witness’[s] testimony.”). Her's wrongdoing — the murder of Vang — plainly qualifies under this formulation of the forfeiture rule.

20 . The concurrence’s claim that our rule results in forfeiture applying based on "little more than [a defendant’s having been] accused of a crime” is simply wrong.

21 . While the concurrence contends that our resolution of this issue is “improper,” the resolution here is in accord with what other appellate courts have done in murder cases. See, e.g., Garcia-Meza, 403 F.3d at 370; Giles, 55 Cal.Rptr.3d 133, 152 P.3d at 447; Meeks, 88 P.3d at 795.

22 . Effective September 1, 2006, Rules 803(24) (availability of declarant immaterial) and 804(b)(5) (declarant unavailable) were combined into the current Rule 807 residual exception. Minn. R. Evid. 807 cmt. In addition to trustworthiness, the prerequisites for admission of a hearsay statement under the residual exception are:

(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Minn. R. Evid. 807.

23 .Her notes that the State also argued for the admissibility of these statements under the state-of-mind exception, Minn. R. Evid. 803(3). Because the State does not press this argument on appeal, the 803(3) state-of-mind issue is not before us.

24 . Her argues that Vang had a financial motive to fabricate her statements of abuse because she sought payment for her damaged wedding garments at the time of the family meeting. But the record reflects that the purpose of the meeting was to help the couple mediate their marital problems, not for Vang to recover money for the damaged clothes. In fact, Her attended the meeting in order to beg for Vang to return home to him. In order to find the truth and help the couple resolve their problems, the family needed to discuss all aspects of the relationship, including the incident when Her hit Vang, she ran out, and he became so upset that he poured curry juice on her ceremonial wedding garments. Finally, Her’s written promise to pay for the clothing corroborates the first “hitting” incident and provides further support for Vang’s trustworthiness.