## Facts

- The State of Louisiana charged Jimmie Warner with second-degree murder for the shooting death of Walter Jovel.
- During the investigation, prosecution witness Nadia Stark gave police a recorded statement in which she identified Warner as the shooter.
- The day before Stark was scheduled to testify at trial, she told the court she planned to invoke the Fifth Amendment and refuse to answer questions because she had received threats and feared for her safety if she testified.
- The trial court ruled that Stark did not have a valid privilege against self-incrimination under the circumstances and ordered her to answer the prosecutor’s questions.
- The next day, immediately before Stark took the stand, Stark’s counsel advised the court that Warner may have had contact with Stark on the way to the courthouse.
- When Stark was called as a witness, she refused to answer any questions, including foundational questions about whether she gave a recorded statement to police and whether she could identify her voice on the recording.
- The trial court found Stark was unavailable because she refused to testify despite a court order.
- The trial court admitted Stark’s recorded statement, finding that Warner had forfeited his confrontation rights because he engaged in, or acquiesced in, wrongdoing that was intended to, and did, prevent Stark from testifying.
- The jury returned a responsive verdict finding Warner guilty of negligent homicide, and Warner appealed.

## Issues

1. Did admitting Stark’s recorded statement violate the Sixth Amendment Confrontation Clause, or did Warner forfeit confrontation by wrongdoing intended to procure Stark’s refusal to testify?
2. Did Stark’s refusal to answer questions after being ordered to testify support the trial court’s finding that she was unavailable for purposes of admitting her recorded statement?

## Decision

- The Louisiana Fourth Circuit affirmed Warner’s conviction.
- The court upheld the trial court’s unavailability finding because Stark refused to answer any questions even after the court ruled she lacked a valid Fifth Amendment privilege and ordered her to testify.
- The court upheld admission of Stark’s recorded statement, concluding the record supported the trial court’s determination that Warner forfeited his confrontation rights by engaging in, or acquiescing in, conduct intended to prevent Stark from testifying and that actually caused her unavailability.

## Legal Principles

- The Sixth Amendment right to confront witnesses may be forfeited when the defendant engaged in, or acquiesced in, wrongdoing intended to make the witness unavailable and that wrongdoing did make the witness unavailable (forfeiture by wrongdoing).
- A witness may be treated as unavailable when the witness refuses to testify despite a court order to answer questions.
- A witness may not claim the Fifth Amendment privilege against self-incrimination when the testimony sought does not present a real risk of self-incrimination; a court may order the witness to testify after rejecting an improper privilege claim.
- When forfeiture by wrongdoing is established, prior testimonial statements (such as a recorded police statement) may be admitted even though the declarant does not testify at trial.

## Conclusion

The appellate court affirmed because Stark became unavailable by refusing to testify after a direct court order, and the trial court had an adequate basis to find that Warner’s conduct (or his acquiescence in it) was aimed at preventing Stark’s testimony and did prevent it, resulting in forfeiture of his Confrontation Clause rights and permitting the State to introduce Stark’s recorded statement.


State v. Warner, 116 So. 3d 811 (2013)