Jones v. State
| Decision Date | 29 April 1992 |
| Docket Number | No. 69894,69894 |
| Citation | 843 S.W.2d 487 |
| Parties | Richard Wayne JONES, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Richard Wayne Jones, appellant, was convicted by a jury of capital murder, specifically murder committed in the course of kidnapping and robbery. V.T.C.A. Penal Code, § 19.03(a)(2). The jury answered the special issues in the affirmative and punishment was assessed at death. Article 37.071, V.A.C.C.P. He has appealed alleging twenty-four points of error, but does not challenge the sufficiency of the evidence. We will affirm his conviction.
In his first point of error appellant alleges that the trial court committed reversible error by refusing to admit the grand jury testimony of Yelena Comalander, a witness who, when called by appellant at trial, asserted her Fifth Amendment privilege against self incrimination and refused to testify. Appellant requested that Comalander be granted immunity and ordered to testify. The State objected and the trial court denied his request. Appellant then asked to have Comalander's grand jury testimony admitted into evidence. The State objected claiming that the grand jury testimony was hearsay. Appellant then asserted that, although the testimony was hearsay, it fell within an exception to the hearsay rule because Comalander was unavailable to him as a witness and her testimony was given at a former grand jury hearing. Tex.R.Crim.Evid. 804(b)(1). Further, he argued that excluding the evidence under the hearsay rule would deny him due process and equal protection as well as his Fifth, Sixth, Eighth, and Fourteenth Amendments rights. The trial court excluded the testimony. On appeal, appellant urges that the grand jury testimony should have been admitted because it falls into the former testimony exception to the hearsay rule and because due process of law demands its admissibility.
The issue of whether grand jury testimony may be admitted when proffered by the defendant under rule 804(b)(1) is a novel one before this Court. However, it has been addressed by several federal circuit courts of appeal. Because the Texas hearsay exception for former testimony is almost identical to its federal counterpart 1, the federal courts' interpretation of the applicability of the rule to grand jury testimony is instructive to our resolution of this issue.
The former testimony exception to the Texas Rules of Criminal Evidence provides in pertinent part:
(b) Hearsay exceptions: The following are not excluded if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
A witness is rendered unavailable when she invokes her Fifth Amendment privilege not to testify. Tex.R.Crim.Evid. 804(a)(1) (); see also Granger v. State, 653 S.W.2d 868, 873 (Tex.App.-Corpus Christi 1983), aff'd, 683 S.W.2d 387 (Tex.Cr.App.1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). Since Comalander asserted her privilege against self-incrimination, she was unavailable as a witness to appellant. 2
The State argues that grand jury proceedings are not "another hearing of the same or a different proceeding." Grand jury proceedings are hearings on the allegation brought against a criminal defendant and thus, satisfy the requirement that the testimony be given at "another hearing of the same or a different proceeding." Tex.R.Crim.Evid. 804(b)(1). See also United States v. Salerno, 937 F.2d 797, 805 (2d Cir.1991); United States v. Miller, 904 F.2d 65, 67-68 (D.C.Cir.1990).
The final requirement for admission under 804(b)(1) is that the "party against whom the testimony is ... offered [must have] had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Id. The purpose of this provision of the rule is to protect the party against whom the hearsay evidence is offered from the ill-effects of not being able to examine the witness who made the statement or gave the testimony. Salerno, 937 F.2d at 806. If the party against whom the hearsay evidence is offered previously had an opportunity and similar motive to examine the witness, then the ill-effects are ameliorated.
The State contends that it does not have the same goals in developing testimony at a grand jury hearing as it does at trial because grand jury proceedings are confidential hearings to investigate the case and determine whether probable cause exists to indict the defendant, thus a prosecutor must be a neutral participant responsible for bringing all the facts before the grand jury. See art. 2.01, V.A.C.C.P.
Several federal circuit courts of appeal have held that the government has "the same motive and opportunity to question [the witness] when it brought him before the grand jury as it does at trial." Miller, 904 F.2d at 68; see also United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984); United States v. Young Bros., Inc. 728 F.2d 682, 691 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 246, 83 L.Ed.2d 184 (1984) 3; United States v. Klauber, 611 F.2d 512, 516-17 (4th Cir.1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980).
Moreover, when, as in this case, the grand jury testimony of a witness is proffered against the government and the witness is unavailable to the defendant because of an assertion of a Fifth Amendment privilege, federal courts of appeal have recognized that the government has the ability to examine the witness by granting the witness immunity. See generally United States v. Marchini, 797 F.2d 759 (9th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1288, 94 L.Ed.2d 145 (1987). 4 This argument has been accepted by other federal courts:
The fact that [grand jury testimony] would not ... be subject to cross-examination is of little weight. The defendant, who would be seeking to introduce it, was the one precluded from questioning the witness at the Grand Jury, not the government. The government had a full right to interrogate at the Grand Jury proceedings. If the government, at trial, should wish to contradict the testimony in the Grand Jury transcript out of the witness' own mouth, it would have the right, once the Grand Jury testimony was admitted, to call [the witness] to the stand and immunize him for the purpose of the cross-examination.
Klauber, 611 F.2d at 516 (dicta).
[W]hen the defendant wishes to introduce the grand jury testimony that the government used to obtain his indictment, those concerns about reliability and accuracy are absent. Every factor present in the grand jury--the ex parte nature of the proceeding, the leading questions by the government, the absence of the defendant, the tendency of a witness to favor the government because of the grant of immunity, the absence of confrontation--is adverse to the interest of the defendants, not the government.
Yet it is the government here which seeks to avail itself of the protections of Fed.R.Evid. 804(b)(1). Since the witnesses were only unilaterally "unavailable" and could have been subjected to cross-examination by the government, we will not countenance the exclusion of their grand jury testimony on the ground of purported fairness to the government.
Salerno, 937 F.2d at 807 (emphasis in original).
Because the State is the only party who may examine the witness during a grand jury proceeding, whatever testimony that is given at a grand jury is elicited solely through questioning by the State.
We hold that Comalander's grand jury testimony, as sought to be introduced against the State, falls within the former testimony exception to the hearsay rule. Tex.R.Crim.Evid. 804(b)(1).
However, our analysis of admissibility does not stop here. Appellant had possession of Comalander's entire grand jury transcript and was aware of its contents. Appellant's counsel, outside the presence of the jury, stated:
the Defense, having been precluded from calling ... Comalander to give testimony ... has caused to be marked a true and correct copy and transcription of [her] testimony before the Tarrant County Grand Jury ... We ... offer the testimony for the consideration of the jury ... and we offer [it] for purposes of the record[.]
The State objected to the admission of the grand jury testimony for any purpose claiming it was hearsay. The trial judge responded,
In order to preserve error on a claim that evidence was improperly excluded "the substance of the evidence [must be] made known to the court by offer or [be] apparent from the context within which questions were asked." Tex.R.Crim.Evid. 103(a)(2). Here, appellant offered the transcript which was, in his trial counsel's words, "in excess of 70 pages of a typed statement of facts". Appellant never specified which portion he wanted to introduce into evidence.
Having read the entire transcript of Comalander's testimony and carefully scrutinized those portions of the testimony which appellant claims are exculpatory, we find that, with one exception to be discussed infra, the portions upon which he relies are all statements of what appellant told Comalander. Accordingly, appel...
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