Jones v. State

• Decision Date: 03 July 1989
• Docket Number: Nos. 88-94,88-95,s. 88-94
• Citation: 777 P.2d 54
• Parties: Dale Burton JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Ray KNOX, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 54

777 P.2d 54

Dale Burton JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Ray KNOX, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 88-94, 88-95.

Supreme Court of Wyoming.

July 3, 1989.

Michael J. Krampner, Casper, for appellant Jones; Fred R. Dollison, Sheridan, for appellant Knox. Argument presented by Messrs. Krampner and Dollison.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Senior Asst. Atty. Gen., and Terry L. Armitage, Asst. Atty. Gen., for appellee. Argument presented by Mr. Armitage.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Chief Justice.

In this case two witnesses were called before the jury with the court and prosecutor knowing beforehand that they would assert their Fifth Amendment right not to testify, and then the court instructed the jury to disregard the effect of their being called as witnesses.

Appellants Dale Burton Jones (Jones) and Ray Lamar Knox (Knox) were convicted by a jury of conspiracy to commit murder in the first degree in violation of W.S. 6-1-303 and 6-2-101. They each raise five essentially identical issues on appeal.

Jones inquires:

"1. Was reversible error committed by the trial court in allowing the prosecution to call as witnesses in the presences of the jury, persons whom the trial court and prosecution knew would exercise their Fifth Amendment right to remain silent?

"2. Did the trial court, by issuing orders based on ex parte motions of the prosecutor violate the Fourteenth Amendment due process rights of the appellant and demonstrate prejudice in fact against appellant?

"3. Did the trial court commit reversible error by allowing the prosecution to present evidence of numerous financial transactions, books, and records, which were irrelevant to the case?

"4. Did the trial court commit reversible error by denying appellant's motion to suppress items seized pursuant to the July 2, 1987, search warrant, because the warrant was issued based on an affidavit which did not contain probable cause to believe that each of the items to be seized was at any one of the places to be searched?

"5. Even if no one of the errors committed by the trial court constituted reversible error, did the cumulative effect of the errors described above render the verdict improper, such that it should be reversed?"

Knox states the issues as:

"1. The district court committed a reversible error in permitting the prosecutor to call to the stand witnesses whom the court and the prosecutor knew were going to invoke valid privileges not to testify, solely to cause the witness to invoke the privilege to the prejudice of the appellant.

"2. The district court committed reversible error in admitting into evidence business and financial records of Keeler Konstruction, Inc., when the same had no connection to appellant.

"3. The district court committed reversible error in granting to the prosecutor ex-parte orders for the seizure of certain Mountain Bell telephone records without notice to counsel for appellant and in permitting the prosecutor to maintain a secret file for subpoenas of American Express records for which counsel for appellant was denied access.

"4. The district court committed reversible error in refusing to suppress as evidence items seized pursuant to a general warrant.

"5. Even if no single assigned error committed by the district court is deemed reversible, the cumulative effect of all the errors so prejudiced appellant that the matter ought to be reversed."

We reverse and remand their convictions for retrial.

In the early morning hours of June 29, 1987, Ray Vigil was attacked in his bed in the house owned by appellant Ray Knox at 1500 Leopard Street, Sheridan, Wyoming. Vigil's assailant, Roy Alma Young, Jr., entered Vigil's room and hit Vigil in the mouth with the butt of a pistol. A struggle ensued during which Young shot Vigil twice.

After being shot, Vigil was able to overpower Young. Vigil dragged Young from the bedroom to the kitchen where he telephoned for emergency assistance. The police responded and took Young into custody. A search of Young at the time of arrest yielded: $2,500 in hundred dollar bills; cigarettes; a cancelled airplane ticket; ammunition for a .22 calibre pistol; and a map of Wyoming.

Young was arrested and charged with burglary, attempted murder and being a habitual criminal. He declined to discuss the events surrounding the assault on Vigil with law enforcement officials until he had secured a plea agreement. After making a plea agreement, he related this story.

On June 28, 1987, while in Salt Lake City, Utah, Young received three phone calls from his cousin, appellant Knox. Knox asked Young if he would come to Sheridan, Wyoming, to "take care of a guy." Young understood from this conversation that the "guy" was blackmailing Knox's and Jones' employer, Keeler Konstruction, and the company's owner Alan Keeler. Young was to go to the Salt Lake City airport, pick up a ticket that would be waiting for him, and fly to Billings, Montana where he would be met by a man named "Dale" (later identified by Young as appellant Dale Jones), who would be dressed in a black four-button polo shirt and a black cap with the logo "Montana" across the front.

Young accepted the proposal, flew to Billings, and was met by the man named Dale. Dale Jones then drove Young to Sheridan. During the trip, he told Young that he was to kill Vigil and was to dispose of the body. Young said Jones gave him the pistol used in the assault, ammunition for the gun, various "cross top" amphetamines, and drew a schematic of the house at 1500 Leopard Street on a french fry carton. Upon arriving at 1500 Leopard Street, Jones showed Young into the house, pointed out Vigil's room, and then told him to lie down in a separate room and to wait for at least one-half hour after Jones left to do the killing. After Jones left, Young fell asleep. Upon awakening an hour or so later, Young entered Vigil's room and assaulted and shot Vigil.

Young's statements to police led to the arrest of Jones and Knox. Preliminary hearings for Jones and Knox were held on August 7, 1987, and they were bound over to the district court. At their arraignments on August 19, 1987, Jones and Knox pled not guilty to the charges of conspiracy to commit murder in the first degree.

Young testified against appellants at trial after securing a plea bargain agreement for a reduced charge and sentence. Appellants were convicted of conspiracy to commit murder in the first degree after a five-day jury trial and were sentenced on February 22, 1988, to life imprisonment.

I

The only issue we will resolve is whether it was reversible error for the trial court to permit the prosecution to call witnesses in the presence of the jury who the court and the prosecution knew would invoke the Fifth Amendment privilege not to testify. We hold that it was error and reverse.

The two witnesses who invoked the Fifth Amendment privilege not to testify were Alan Keeler and Nancy Haefner-Keeler. At the time of trial neither had been formally charged with the underlying conspiracy but were under investigation for illegal employment and tax activities not necessarily related to this case. Throughout preparation for the trial it was understood by the parties that the State's theory of the case was that Vigil was blackmailing Keeler Konstruction for unpaid wages and that elimination of this blackmail threat was the motive for the conspiracy to commit murder.

Very early in the proceedings the prosecution sent subpoenas to Alan Keeler and Nancy Haefner-Keeler, who was Alan Keeler's bookkeeper, making it clear they would be called as State's witnesses to testify against appellants as to the underlying conspiracy and as to their involvement in it. On December 3, 1987, Alan Keeler filed a Motion to Quash Subpoena because of the ongoing investigation into his business practices. In his motion, Alan Keeler stated: "That because Alan Keeler is the target or potential target of numerous investigations, in all likelihood any questions asked during the course of the trial may be answered by Alan Keeler invoking the Fifth Amendment privilege." On December 7, 1987, Nancy Haefner-Keeler informed the prosecution that "if Nancy Haefner-Keeler is called to testify in the conspiracy to murder trial that is presently ongoing, it is her intentions to plead the Fifth Amendment in many areas of anticipated questioning."

Prior to their actually being called, the trial court and the prosecutor were again informed by counsel that the witnesses intended to claim the Fifth Amendment privilege not to testify if called to the stand. At a hearing in chambers on the witnesses' motions to quash their subpoenas to testify, it was emphatically and clearly indicated that the witnesses were going to claim their privilege and would refuse to testify. The prosecutor then agreed that the witnesses should be called outside the presence of the jury to insure that the invocation of their Fifth Amendment right would not prejudice appellants. However, he also expressed some concern that defense counsel might argue in closing that the failure to produce these witnesses diminished the credibility of the State's conspiracy theory. He suggested that the concerns of all parties could best be met by calling the witnesses outside of the jury's presence and limiting appellants' prospective reference to their absence by an order in limine. In lieu of issuing such an order, the trial court indicated it would permit the witnesses to be called before the jury unless appellants agreed not to argue the State's failure to call them. Some confusion arose as to the scope of argument that would be permitted under such an agreement, resulting in appellants' rejection of the compromise and the trial court's decision to permit the witnesses to be called in open court.

The trial...