September 2022

HARASSMENT RESTRAINING ORDER: HRO HEARING MUST BE HELD IF REQUESTED, UNLESS PETITION IS MERITLESS

Appellant (Wife) filed a petition to dissolve her marriage with Respondent (Husband), as well as a harassment restraining order (HRO) petition against Husband. The HRO petition was denied. Later, a stipulation was entered in family court addressing, among other issues, Wife’s HRO petition, preventing her from filing a new petition making the same allegations as the first absent a new factual basis. Wife later filed another HRO petition, alleging the same incidents as in the first petition, but also alleging three additional incidents. Wife requested a hearing on her second petition, but the district court refused to hold a hearing, based on the family court stipulation. The Court of Appeals holds the district court abused its discretion by denying the requested hearing without determining whether Wife’s second HRO petition had merit. The HRO statute mandates that the district court hold a hearing on the merits of an HRO petition “[u]pon receipt of the petition and a request for a hearing by the petitioner.” Minn. Stat. § 609.748, subd. 3(a). The statute does not require a hearing if the petition “has no merit.” Id. The district court denied Wife’s requested hearing without determining if her petition had merit. The matter is reversed and remanded for the district court to make this determination. Houck v. Houck, A22-0174, 2022 WL 4074765 (Minn. Sept. 6, 2022).

CONFRONTATION CLAUSE: WITNESS’S POSSIBLE EXPOSURE TO COVID-19 DOES NOT RENDER WITNESS UNAVAILABLE

Appellant was brought to trial on second-degree murder charges. He claimed self- defense. Two eyewitnesses (S.S. and M.W.) to the incident testified Appellant shot the victim in a manner inconsistent with self-defense. The first trial resulted in a mistrial. During the second trial, the eyewitnesses reported possible exposures to COVID-19. The State argued both witnesses were unavailable and asked to read their testimony from the first trial to the jury or to present their testimony using remote video technology. The district court found the witnesses were unavailable and gave Appellant the choice between reading the witnesses’ prior testimony or having the witnesses testify remotely. Appellant objected to both options, but ultimately chose to have M.W.’s first trial testimony read into the record. The jury found Appellant guilty of second-degree felony murder and second-degree manslaughter. The Court of Appeals finds Appellant’s Confrontation Clause rights were violated by M.W. not testifying in person. Before admitting out-of-court testimonial statements of a witness, the witness must be unavailable and the accused must have had a prior opportunity to cross- examine the witness. The courts have not yet decided whether unavailability may be caused by a witness’s possible exposure to a contagious virus. The rules of evidence state a witness is unavailable only if they are exempt from testifying because a privilege applies; the witness refuses to testify despite being ordered to do so; the witness lacks the memory to testify; the witness cannot testify because of death or then existing infirmity, physical illness, or mental illness; or the witness could not be brought to court by service of process or other reasonable mean. A witness with a possible COVID-19 exposure, without any symptoms of illness that prevent them from testifying live and in person, does not fall within any of these categories. The State failed to prove by a preponderance of the evidence that M.W.’s in-person testimony posed a public health risk, because the State showed only a possibility that M.W. may have been in contact with the virus. Therefore, M.W. was available to testify and reading her prior testimony into the record violated the Confrontation Clause. The Court clarifies that State v. Tate, 969 N.W.2d 378 (Minn. Ct. App. 2022), rev. granted (Minn. Mar. 15, 2022), does not answer the issue before the Court. Tate concluded that a witness who is possibly exposed to COVID-19 is unavailable for Confrontation Clause purposes, but was decided pursuant to Maryland v. Craig, 497 U.S. 836 (1990), in which a witness provided live testimony via remote technology. In contrast, this case involves the legal framework described in Crawford, in which a witness’s tape-recorded testimonial statement was played for the jury. Finally, the Court finds the Confrontation Clause violation was not harmless beyond a reasonable doubt, given that M.W. was the State’s sole eyewitness during the second trial, and there is a reasonable possibility her testimony contributed to Appellant’s conviction. Reversed and remanded for a new trial. State v. Trifiletti, A21-1101, 2022 WL 4126380 (Minn. Ct. App. Sept. 12, 2022).