State v. Jones, 19432

Decision Date07 April 1994
Docket NumberNo. 19432,19432
PartiesSTATE of IDAHO, Plaintiff-Respondent, v. Robert Richard JONES, Defendant-Appellant. Boise, February 1993 Term
CourtIdaho Supreme Court

Hamilton, Clark, Michaelson & Drescher, Nampa, for appellant. Mark L. Clark argued.

Larry EchoHawk, Atty. Gen. and Lynn E. Thomas, Deputy Atty. Gen. (argued), Boise, for respondent.

McDEVITT, Chief Justice.

STATEMENT OF THE CASE

In December 1989, on indictment by a grand jury, Robert Richard Jones ("Jones") was charged with having murdered Troy Vance ("Vance") in June 1979. Charges were initially brought by complaint against Jones and Jose Alfonso Martinez ("Martinez") in October 1980, but were dismissed in February 1982. In October 1989, Sherry Wystrach ("Wystrach"), Jones' former wife, came forward with vital evidence concerning the Vance murder. As a result, Jones, Martinez, Donna Cordell, and Rebecca Spalding were indicted for first degree murder. Wystrach testified at Jones' grand jury indictment.

Jones pled not guilty. Several pretrial hearings were held to resolve Jones' motions for change of venue, for a preliminary hearing concerning the existence of a conspiracy, to dismiss the indictment, to sever, and to independently voir dire the jury. The trial court denied the motions for change of venue and for a preliminary hearing. The court also refused to dismiss the indictment.

At trial, the State wove its theory that Jones and Martinez were hired by Donna Cordell to kill Vance for twenty or thirty thousand dollars. Wystrach's testimony was integral to the prosecution's case, providing first-hand knowledge of the conspiracy, its subject matter and payoffs. Wystrach testified that she was present during several meetings between Donna Cordell and Jones at which information and money were exchanged. The trial court allowed testimony concerning the content of the conversations that took place at these meetings under I.R.E. 801(d)(2)(E). Wystrach also testified that Jones surveiled Vance's house in her company. Wystrach explained the relationship between Jones and Martinez as one of business partners in the business of selling drugs.

At the grand jury hearing, Wystrach detailed the murder, stating that late one evening, Jones and Martinez went to Vance's house, overpowered him and shot him in the head. The trial court restricted this testimony at trial, as it was the product of confidential communications made between Wystrach and Jones during their marriage. The murder weapon, which was owned by the victim, was found in a farmer's field across the street from the victim's house. No prints identified as Jones' were on the gun or at the scene of the crime. In fact, there was absolutely no forensic evidence to connect Jones to the crime.

Wystrach was adjudged by the trial court as a matter of law to be an accomplice to the crime and the court's instruction warned the jury to take that fact into consideration. Wystrach's testimony was corroborated by that of Martinez' girlfriend, Rebecca Spalding, who testified that Martinez and appellant would leave the house each evening at the same time and return at the same time except for the night of the murder, when they returned much later than usual. Rebecca Spalding also testified that on that night, Martinez returned home and announced that he would be leaving immediately for Mexico. Jones objected to this testimony but it was ruled admissible under I.R.E. 801(d)(2)(E). The trial court ruled that the conspiracy was not complete until the final payment was made, and Martinez' statement was uttered before finalization. Wystrach's testimony The defense counsel strove to impeach Wystrach in order to dissolve the foundation of the State's case. Defense counsel introduced evidence, both extrinsically and via cross-examination, of her prior alcohol and drug abuse, her failed relationships, her vindictiveness, her propensity to lie and become confused or forgetful, and the immunity granted her by the State. Moreover, defense counsel constructed its own theory of the murder, establishing a different time of death to coincide with Jones' firm alibi.

[125 Idaho 482] was further corroborated by that of one George Florence placing Jones near the scene of the crime, and that of a jailhouse colleague of Jones' who testified that appellant confessed the murder to him.

At the conclusion of the trial, on December 13, 1990, the jury returned a verdict of guilty. At the sentencing hearing, the State presented evidence to show that Jones deserved the death penalty. Jones presented several letters of reference to rebut the State's evidence, and also submitted corrections to the presentence report. In addition, Jones introduced evidence that marijuana was being grown in Wystrach's present residence to further impeach her credibility at the hearing. Jones was sentenced to life imprisonment and filed an appeal to this Court.

The issues that this Court must address include:

I. Whether Jones was prejudiced in the grand jury proceedings by the use of false, misleading, and privileged testimony such that the indictment should be dismissed.

II. Whether the trial court erred in denying Jones' motion for a change of venue.

III. Whether the trial court erred in ruling on Jones' motions concerning sufficient independent proof of a conspiracy to invoke I.R.E. 801(d)(2)(E).

IV. Whether there is sufficient evidence to corroborate the testimony of accomplice Wystrach to support the guilty verdict.

V. Whether Idaho or Washington law is applicable to the issue of admissibility of a taped telephone conversation between Jones and Wystrach across state lines.

VI. Whether certain nonverbal actions that took place between Jones and Wystrach during their marriage are protected under the canopy of the marital privilege.

VII. Whether evidence of uncharged crimes of Jones was erroneously admitted by the trial court under I.R.E. 404(b).

VIII. Whether testimony of an undisclosed witness should have been excluded by the trial court.

IX. Whether the jury was properly instructed.

X. Whether the trial court conducted a fair sentencing hearing.

ANALYSIS
I. MOTION TO DISMISS THE GRAND JURY INDICTMENT

Jones first argues that during the grand jury proceedings, the prosecuting attorney deliberately elicited and allowed illegal and misleading testimony from its key witness, Wystrach. The illegal testimony allegedly involved hearsay and testimony in violation of Jones' marital privilege under I.R.E. 504(a). The false and misleading testimony allegedly concerned evidence of a hair found at the crime scene purportedly matching Jones' but later stipulated by the prosecution to be the victim's. Jones further contends that the indictment process was also prejudiced by the admission of testimony alleging other irrelevant uncharged crimes of Jones. Jones asks this Court to dismiss the indictment because this alleged prosecutorial misconduct violated his right to due process by denying him his right to have an impartial and independent grand jury determine probable cause.

The law governing grand jury indictments derives from numerous statutes and rules. Idaho Code § 19-1107 states that "[t]he grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury." Idaho Code § 19-1105 describes the type of evidence the jury may consider In the investigation of a charge for the purpose of either presentment or indictment, the grand jury can receive any evidence that is given by witnesses produced and sworn before them except as hereinafter provided, furnished by legal documentary evidence, the deposition of a witness in the cases provided by this code or legally admissible hearsay.

Idaho Criminal Rule 6(f) states that "[i]n the investigation of a charge for the purpose of either presentment or indictment, the grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence." Section (h) states that "[i]f it appears to the grand jury after evidence has been laid before them that there is probable cause to believe an offense has been committed and the accused committed it, the jury ought to find an indictment." I.C.R. 6(h).

Based upon Jones' allegations in this case, our inquiry into the propriety of the grand jury proceeding is two-fold. First, we must determine whether, independent of any inadmissible evidence, the grand jury received legally sufficient evidence to support a finding of probable cause. State v. Edmonson, 113 Idaho 230, 236, 743 P.2d 459, 465 (1987). Second, we must dismiss the indictment if, despite an adequate finding of probable cause, the prosecutorial misconduct in submitting the illegal evidence was so egregious as to be prejudicial. Id. at 237, 743 P.2d at 466.

After a careful review of the transcript of the grand jury proceeding, we agree with the trial court's conclusion that illegal evidence was received by the grand jury in the form of testimony concerning privileged marital communications and uncharged crimes. Wystrach testified, in violation of I.R.E. 504, as to a confidential conversation that occurred between her and Jones, her husband, immediately after the murder of Troy Vance. In addition, Wystrach testified, in violation of I.R.E. 404(b) and 802, as to uncharged burglaries and at least one other murder allegedly committed by Jones and Martinez. Although it is clear that this testimony should not have been elicited by the prosecutor before the grand jury, it is equally apparent that, independent of this illegal evidence, there is sufficient legal evidence to support the indictment. The grand jury had before it over forty pages of testimony from Wystrach describing the events preceding, during, and following the murder, including a detailed summary of meetings that took place between Donna Cordell, Jones,...

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