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Anderson v. State

Supreme Court of Nevada

September 5, 2019

ARNOLD KEITH ANDERSON, Appellant,
v.
THE STATE OF NEVADA, Respondent.

          Appeal from a judgment of conviction, pursuant to a jury verdict, of attempted murder with use of a deadly weapon and battery with use of a deadly weapon resulting in substantial bodily harm. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

          Law Office of Lisa Rasmussen and Lisa A. Rasmussen, Las Vegas; Sandra L. Stewart, Las Vegas, for Appellant.

          Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Binu G. Palal, Chief Deputy District Attorney, and Charles W. Thoman, Deputy District Attorney, Clark County, for Respondent.

          BEFORE HARDESTY, STIGLICH and SILVER, JJ.

          OPINION

          STIGLICH, J.

         The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal prosecution the right to confront the witnesses against him or her. A defendant, however, may forfeit that right if he or she procures the witness's absence by wrongdoing. Appellant Arnold Anderson asserted his right to confrontation when the State sought to admit his daughter's out-of-court statements to an investigator employed by the Clark County District Attorney's Office. Relying on the forfeiture-by-wrongdoing exception to the Confrontation Clause, the trial court admitted the out-of-court statements after finding that the witness was unavailable and Anderson had intentionally deterred the witness from appearing at trial. We take this opportunity to weigh in on the State's burden of proof when invoking the forfeiture-by-wrongdoing exception to the Confrontation Clause, holding the preponderance-of-the-evidence standard is the appropriate burden of proof. Because the district court applied that standard and the record supports its conclusion that the State met its burden, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Anderson shot Terry Bolden outside an apartment complex in Las Vegas, striking him in the head, chest, and leg. Bolden's girlfriend, Rhonda Robinson, and Anderson's daughter, Arndaejae Anderson (Arndaejae), witnessed the shooting. Bolden and Robinson identified Anderson as the shooter.

         Anderson was charged with attempted murder with use of a deadly weapon, robbery with use of a deadly weapon, and battery with use of a deadly weapon resulting in substantial bodily harm. Anderson has maintained that he has physical evidence showing that he was in California at the time of the shooting-a photo with a time stamp and an automobile repair receipt. Sometime after Anderson was charged, Mark Rafalovich, an investigator with the Clark County District Attorney's Office, visited Arndaejae at a juvenile detention center to interview her about the incident.[1] The deputy district attorney assigned to the case, Arndaejae's defense counsel, and her defense investigator were also present. During the interview, Arndaejae made statements that incriminated Anderson in the shooting. The interview was not recorded or otherwise memorialized.

         A five-day trial commenced wherein Anderson represented himself. On the morning of the second day of trial, the State represented to the court that earlier that morning Anderson was recorded on the jail telephone speaking with a female "and telling her to disappear and to leave her phone" so that authorities could not track her.[2] The State alleged that the female was Arndaejae.[3] To support that allegation, the State indicated that it had evidence that Anderson called the same number on August 3 to wish the caller a happy birthday and Arndaejae's birthday is August 3. Arguing that the phone call showed Anderson had procured Arndaejae's absence, the State argued that it should be permitted to introduce Arndaejae's prior statements through Rafalovich. Anderson argued that because he never said his daughter's name during the call, the State could not prove that he was procuring her absence. He also represented that he was telling a "friend in a different matter" to disappear for a week.

         The court then inquired about the State's efforts to locate Arndaejae. The State conveyed that a warrant was already out for her arrest because she absconded from juvenile probation "a few months ago," her probation officer was actively searching for her, and an investigator with the DA's office was also searching for her. However, a material witness warrant was not issued, and the State could not serve Arndaejae with a subpoena. Anderson objected and argued that he could not have procured her absence because she had already fled, as demonstrated by the existing warrant for absconding from her probation. The court noted Anderson's objection but deferred its ruling until the State was ready to call the witness.

         At the end of the second day of trial, the State informed the court that it intended to call Rafalovich the following morning to testify to Arndaejae's out-of-court statements. At that time, the State provided its evidence to the court that Arndaejae was the female on the recorded jail call with Anderson. Relying on the doctrine of forfeiture by wrongdoing, the court allowed the State to call its investigator to testify as to Arndaejae's out-of-court statements. The court found that the State had shown by a preponderance of the evidence that Arndaejae was unavailable because Anderson intentionally deterred her from testifying against him.

         On the fourth day of trial, Rafalovich testified as to Arndaejae's statements at the juvenile detention facility. According to Rafalovich, Arndaejae indicated that she witnessed the shooting, identified her father as the shooter, and indicated that he told her to He about his whereabouts by saying that he was in California.

         The jury found Anderson guilty of attempted murder with use of a deadly weapon and battery with use of a deadly weapon resulting in substantial bodily harm. The jury found Anderson not guilty of robbery with use of a deadly weapon. The district court sentenced Anderson to serve consecutive prison ...


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