State v. Jako
| Decision Date | 02 June 2021 |
| Docket Number | No. 19-1102,19-1102 |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Gerald Wayne JAKO, Jr., Defendant Below, Petitioner |
| Court | West Virginia Supreme Court |
Robert F. Evans, Esq., WV Public Defender Services, Appellate Advocacy Division, Charleston, West Virginia, Counsel for Petitioner.
Patrick Morrisey, Esq., Attorney General, Scott E. Johnson, Esq., Assistant Attorney General, Office of the Attorney General, Charleston, West Virginia, Counsel for Respondent.
Petitioner Gerald Wayne Jako, Jr., and his girlfriend, Samantha England, were indicted for first-degree robbery in January 2019 for robbing a gambling parlor. Before trial, Ms. England struck a deal with the State and agreed to testify against Mr. Jako. Once Mr. Jako learned that Ms. England planned to testify, he made a series of jailhouse phone calls in which he told Ms. England to remain loyal, honest, and true to him and threatened to end their relationship if she didn't stop "running her mouth." Days later, Ms. England withdrew her plea agreement and told the State that she would not testify against him. Relying on the forfeiture-by-wrongdoing doctrine,1 the State moved to admit Ms. England's recorded statement into evidence, despite her absence from trial and Mr. Jako's inability to cross-examine her. The circuit court granted the motion, the jury convicted Mr. Jako of first-degree robbery, and he now appeals that conviction.
We find that the circuit court did not err when it granted the State's motion to admit Ms. England's out-of-court statement under the forfeiture-by-wrongdoing doctrine. The phone calls and their effect upon Ms. England show that Mr. Jako intended to obtain Ms. England's absence from trial and that his efforts worked. And, the circuit court did not err as a matter of law when it found that Mr. Jako had engaged in "wrongdoing" that would support admission of Ms. England's out-of-court statement. We also conclude that Mr. Jako's additional assignments of error—ineffective assistance of trial counsel and a misleading answer by the circuit court to a jury question—do not merit relief. So, we affirm the circuit court's October 18, 2019, sentencing order.
On August 19, 2018, Shauna Cobb was the only clerk on duty at the State Line Café, a gambling parlor in Ohio County. It's common for the doors of businesses like the café to keep their front doors locked so that a clerk like Ms. Cobb can control who enters the parlor. Around 11:30 p.m., Ms. Cobb saw Ms. England on the surveillance cameras that showed the front door of the café and she unlocked the door and allowed Ms. England to enter. Ms. England played the gambling machines for a little while, then got up to leave. Ms. England then opened the front door to the café, enabling Mr. Jako and Jeremiah Dunn to enter. The men wore masks and gloves; one held a gun and the other held a machete. At their command and with a gun pointed at her, Ms. Cobb opened the cash register and led them to the café’s safe. Ms. Cobb's hands were then tied, and the trio left, making off with approximately $6,000.
After Mr. Jako, Ms. England, and Mr. Dunn had fled, Ms. Cobb discovered that Ms. England had forgotten her purse in the room with the gambling machines. Ms. Cobb found Mr. Jako's identification inside. Authorities apprehended Mr. Jako, Ms. England, and Mr. Dunn a few days later. Then, in January 2019, the grand jury indicted each for first-degree robbery and use and presentation of a firearm during the commission of a felony (i.e., first-degree robbery).
Ms. England reached a plea agreement with the State at the beginning of July 2019. Under that agreement, Ms. England would testify against Mr. Jako at his trial in exchange for the State's recommendation of a forty-year term of incarceration, no recommendation for a gun-specific finding, and dismissal of the second count of the indictment. Ms. England and Mr. Jako both attended a pretrial hearing on July 19, 2019. During the hearing, the State reported that Ms. England would testify at Mr. Jako's trial.2 Ms. England had also made a lengthy statement implicating Mr. Jako, which authorities had recorded. The State gave Mr. Jako's attorney the recorded statement during the July 19 hearing.
Ms. England appeared for her plea hearing on July 30, 2019. Before the hearing began, Ms. England told her attorney that she didn't want to accept the plea agreement. Ms. England and her attorney conferred, and, at her counsel's request, Ms. England agreed to speak with the Assistant Prosecutor.3 Ms. England told her attorney and the Assistant Prosecutor that she would not testify against Mr. Jako. When asked if she was afraid of Mr. Jako, Ms. England responded "absolutely" or "definitely." Then, during the hearing, Ms. Jako withdrew her plea agreement and stated that she could not testify against Mr. Jako, repeating "I can't do it." The circuit court found—at the time—that Ms. England made those decisions "knowingly, intelligently, and without threat of coercion, force, or duress[.]"
Mr. Jako and Ms. England were housed at the North Central Regional Jail and the Northern Regional Jail, respectively, awaiting trial. After the July 30 hearing, the State obtained recordings of the pair's jailhouse phone calls and discovered that Mr. Jako was displeased by Ms. England's plan to testify against him. On July 23, he told a third-party during a telephone call that Ms. England's plea agreement was "bad news" and that he needed "to keep in contact with [his] b*tch."4 Otherwise, he stated, "she gets weak; and when she gets weak, she starts telling lies on him." He was, in his words, Ms. England's "source of strength." Later that day, Mr. Jako arranged with the third-party to "merge" his calls with Ms. England's so the couple could talk to each other from their respective jails.
On the first of these three-way calls, Ms. England stated that she "was told to call the number," and told the third-party that she wanted to talk to Mr. Jako at least twice a day. When Mr. Jako joined the call, he told Ms. England that he could be anything she wanted him to be if she was "loyal and honest and true to" him. Mr. Jako made other statements to Ms. England, such as: (1) (2) (3) "[I]t's your job to submit to your husband and not run your mouth[;]" (4) and (5)
The tone of the conversations changed the next day. Mr. Jako confronted Ms. England, telling her first that he loved her, and then asking if she "want[ed] to come clean about anything?" Ms. England responded that she hadn't done anything. Mr. Jako then stated that Ms. England was lying and that "[he] kn[e]w things." Ms. England then conceded that She went on: Later, Ms. England reassured Mr. Jako that she was "not gonna do anything stupid," and that she "got [him]" and "love[d him]." Mr. Jako also told Ms. England that he wanted to marry her and be with her for the rest of his life.
Mr. Jako interspersed warnings in his assurances of love for Ms. England and directives that she must stop "run[ning] her mouth." Examples include the following:
Sam, you know, I love you too. I do the right thing by you every day. I could reach out to different people and sh*t ... and I don't. I don't want to talk to other people unless it's you. I don't ever want to be the reason you shed tears.
Mr. Jako further encouraged Ms. England to remain silent by warning her that "[t]he devil is going to use you [Ms. England] to get at me because I'm too f*cking powerful to get at."
On August 7, 2019, the State moved to admit Ms. England's recorded statement into evidence, even though she refused to testify at trial. The State argued that Mr. Jako had rendered her unavailable to testify by "wrongdoing," and so had forfeited his right to object to the admission of Ms. England's recorded statement at trial. The court held a hearing on the motion on August 15, 2019, at which the State produced recordings of Mr. Jako and Ms. England's calls. The court directed the parties to provide additional briefing regarding any other excerpts either wished the court to consider. The State supplemented its motion with additional excerpts from the recorded phone calls, but Mr. Jako did not file anything else.5
On August 20, 2019, the court granted the State's motion, and allowed the admission of Ms. England's recorded statement to be played at Mr. Jako's trial. The court reproduced pertinent portions of Mr. Jako and Ms. England's phone conversations, recorded between July 19, 2019 (the pretrial hearing) and July 30, 2019 (Ms. England's plea hearing). The court then considered whether Mr. Jako had obtained Ms. England's absence by wrongdoing, so that he had forfeited his constitutional right to confront her. The court found that the State had satisfied that evidentiary burden. The court reasoned that Mr. Jako knew as of the pretrial hearing that Ms. England had struck a deal with the State and planned to testify against him. The court found that the State's evidence showed that after the pretrial hearing, Mr. Jako acted to prevent Ms. England from testifying against him:
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