State v. Constance

• Court: Washington Court of Appeals
• Writing for the Court: Schindler
• Citation: State v. Constance, 226 P.3d 231, 154 Wn. App. 861 (Wash. App. 2010)
• Decision Date: 08 March 2010
• Docket Number: No. 63903-0-I.
• Parties: STATE of Washington, Respondent, v. Dino J. CONSTANCE, Appellant.

226 P.3d 231

154 Wn. App. 861

STATE of Washington, Respondent, v. Dino J. CONSTANCE, Appellant.

No. 63903-0-I.

Court of Appeals of Washington, Division 1.

March 8, 2010.

Neil Martin Fox, Law Office of Neil Fox, PLLC, Seattle, WA, for Appellant.

Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Office, Vancouver, WA, for Respondent.

SCHINDLER, C.J.

¶ 1 A jury convicted Dino J. Constance of three counts of solicitation to commit murder in the first degree and one count of solicitation to commit assault in the second degree. On appeal, Constance only challenges his conviction on one count of solicitation to commit murder in the first degree, count 3. As to count 3, Constance contends the trial court erred in denying his motion to suppress evidence of the court-authorized recorded telephone conversations with Ricci Castellanos. Constance asserts that because the application for an order to intercept and record the telephone conversations relies on boilerplate justifications, it does not comply with the statutory requirement to set forth particular facts showing that "other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ."¹ Constance also asserts the application does not support the characterization of him as a violent criminal. We hold that because the application to intercept and record the telephone conversations sets forth facts showing that other investigative procedures were tried and appeared unlikely to succeed or too dangerous to employ, and does not only rely on boilerplate justifications, the court did not err in denying the motion to suppress. We affirm the conviction of solicitation of murder as charged in count 3.

FACTS

¶ 2 Dino J. Constance and Jean Koncos married and had a child together in 2004. Constance worked as a real estate broker and Koncos worked as a massage therapist.

¶ 3 In early 2005, Koncos and Constance separated. The court designated Koncos as the primary residential parent. At the request of both parties, the court entered mutual restraining orders. Constance was arrested on February 9, and again on April 21, for violating the restraining order.

¶ 4 On February 12, 2006, Constance assaulted Koncos while attempting to abduct their two-year old son. According to the police report, Constance grabbed Koncos by the neck constricting her airway, and was "pulling her hair, choking her, and punching at her." One witness said that Constance was "dragging Koncos around by the hair outside of the vehicle and was `beating her up'" while their son was in the car crying.

¶ 5 In March, Koncos filed for dissolution of the marriage. Constance and Koncos disputed custody of their son, and the dissolution proceedings were contentious.

¶ 6 In January 2007, Constance started living with Michael Spry and his adult son Jordan Spry. According to Michael and Jordan Spry, Constance was angry and incessantly complained about Koncos and the dissolution proceedings. At first, Michael and Jordan were sympathetic to Constance. But in March, when Constance refused to pay Michael for driving to California to retrieve Constance's belongings from storage, the relationship between Constance and Michael and Jordan deteriorated. In late March, Constance moved out.

¶ 7 On March 27, Koncos called the police to report that Jordan Spry had called to tell her that Constance "wanted to hire somebody to kill" her. According to the police report On 03/27/2007 I was dispatched to call Jean Koncos on the report of threats.

I contacted Jean by telephone since she was out of state at the time. She stated that she received a call earlier in the day from her ex-husband's ex-roommate, Jordan. He told her that Dino, her ex-husband, mentioned that he wanted to hire somebody to kill Jean. Jordan didn't mention to Jean a date, time, or method in which Dino was planning on.

Jean told me that she wasn't sure if Dino would have that done. She said that they have been fighting back and forth for awhile and dealing with a custody issue between their children. She also explained that Dino and Jordan have been fighting and Jordan is aware of the situation between Dino and Jean. She said that Jordan may be telling her Dino wants to kill her in order to help her gain custody instead of Dino.

Koncos asked the officer to contact Constance to make sure he knew that his threat to kill her had been reported to the police.

¶ 8 When the officer spoke to Constance about his alleged threat to kill Koncos, he denied telling Jordan Spry that he wanted to hire someone to kill Koncos. The police report states:

I contacted Dino by telephone. He explained the same situation between he and Jean about the custody issue. I confronted him about the information that I received. He denied making such statements to Jordan. He also told me that he and his roommate were also having issues with each other and that he had just recently moved out.

I informed Dino of the seriousness of the situation and he understood.

¶ 9 On April 5, Koncos filed a motion for an ex parte temporary restraining order against Constance. In support of the restraining order, Koncos submitted declarations from Michael Spry and Jordan Spry about the threats Constance made to kill her. The court issued a temporary restraining order and scheduled a show cause hearing for April 10. Before the hearing, Jordan told Constance that if he paid his father the money he owed, Jordan would not testify at the hearing on April 10.

¶ 10 At the show cause hearing on April 10, Koncos and Constance represented themselves pro se. Michael and Jordan Spry were the only witnesses who testified at the hearing. Michael and Jordan each testified that Constance was angry about the dissolution proceedings and talked about his plans to kill Koncos. Michael and Jordan also testified about Constance's use of alcohol and drugs, and his poor parenting skills.

¶ 11 Michael Spry testified that Constance told him "no matter what the cost, what it takes" he had to get his son away from Koncos. Michael said that Constance was constantly "filing documents for any reason, anywhere[,] at anytime, at any cost. He writes, he writes, he writes. He stays up all day, all night, thinking, working, plotting, planning, writing documents."

¶ 12 According to Michael, Constance told him that it would be "worth $5,000 to him to have somebody just make an appointment to get a massage and while they were there to just beat the very livin' s-h-blank out of" Koncos. Michael testified that Constance said "it'd be worth another $5,000 if they'd just f__in kill" Koncos. Michael said that at first, he thought it was all "locker room talk" and idle threats. But when Constance started repeatedly talking about arranging to injure or kill Koncos, whether he had been drinking or was sober and in different settings, Michael believed Constance was serious.

¶ 13 Jordan Spry testified that Constance paid him money to schedule a massage with Koncos in order to gather information to use against her in the dissolution proceedings. Jordan testified that he rescheduled massage appointments several times and did not follow through because of his concerns about Constance.

¶ 14 Jordan testified that he did not believe that the statements Constance repeatedly made that he wanted to find someone to kill Koncos were serious until Constance "came to me with a contract, he offered me $5,000 in cash to go and brutally harm" Koncos. According to Jordan Constance also said that if Jordan "would be willing to go a step further and kill you [Koncos], he would give an additional $5,000. So it was a total of $10,000 to kill" Koncos. Jordon testified that Constance made the offer to him several times, but the "offer is for anyone." Jordan said he called Koncos to warn her and told her he would testify on her behalf in court.

¶ 15 Constance cross examined Michael and Jordan Spry about the dispute over the money he owed Michael, and about Jordan's offer to not testify if Constance paid the money.

¶ 16 Constance argued that neither Michael nor Jordan Spry were credible witnesses. Constance asked the court to lift the no contact order as to his son and to not restrict visitation. The court found the testimony of Michael and Jordan Spry credible. Based on the threats to harm Koncos and Constance's excessive use of drugs and alcohol, the court prohibited Constance from having contact with Koncos and ordered supervised visitation with his son.

¶ 17 On April 13, the court found Constance in contempt for failure to pay child support. Constance was incarcerated in the Clark County jail and was housed in a jail cell with Ricci Castellanos.

¶ 18 The next day, Castellanos told jail Classification Officer Barbara Schubach that "Constance wanted to hire him to kill his wife." After Castellanos returned to his jail cell, he wrote out his recollection of the conversation with Constance.

¶ 19 Later that day, Clark County Sheriff Detectives John O'Mara and Eric O'Dell conducted a lengthy taped interview with Castellanos. Castellanos said that Constance told him, "`I need somebody to kill—kill my—my ex.'" Constance told Castellanos that his wife is 5'10", works as a masseuse, advertises on craigslist, and lives in a four-plex apartment off Mill Plain Boulevard. Constance said that he loves his son but was only allowed supervised visitation, and "he will do anything in this world to get that child." Castellanos said that he told Constance "`[w]ell I could have it done.'" When Constance asked, "`[h]ow much. How much would you charge?' [Castellanos] said, `around $15,-000.00.'" When Constance said, "`[w]ell, that's too much money....' `I was looking more about three to five thousand,'" Castellanos told Constance that he could probably "get it done for about $5000," and Constance agreed to pay Castellanos "$2500 up front."

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