State v. Major, 13950

• Decision Date: 17 June 1983
• Docket Number: No. 13950,13950
• Citation: 105 Idaho 4,665 P.2d 703
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Melvin Dean MAJOR, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 703

665 P.2d 703

105 Idaho 4

STATE of Idaho, Plaintiff-Respondent, v. Melvin Dean MAJOR, Defendant-Appellant.

No. 13950.

Supreme Court of Idaho.

June 17, 1983.

Gar Hackney, of Lynn, Scott & Hackney, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Neil Tillquist, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Justice.

Defendant appellant Melvin Major was convicted of first degree murder and sentenced to a fixed term of life in prison. He appeals both the conviction and the sentence, asserting numerous errors which denied him a fair trial. We find that none of these errors require reversal of defendant's conviction or reduction of his sentence; thus, we affirm the judgment of the trial court.

During December of 1979, the defendant, his wife and two children were living in Nampa. The victim, Tony Mesa, was living approximately three miles away. The defendant and Mesa had known each other about three years. On New Year's Eve, December 31, 1979, the defendant and his wife went to a bar in Nampa. Mesa was at the bar, a place he frequented. Mesa and the defendant played pool and drank beer the rest of the evening, until the closing of the bar. At one point the owner of the bar asked the defendant to remove a large butcher knife from his right back pocket. The defendant left for five minutes, then returned without the knife. The owner also noticed that, when the bar was closing, the defendant indicated to Mesa that he wanted to accompany him, but Mesa told him to come over the next day instead.

After the bar closed, the defendant went to Mesa's house while his wife went to pick up their child. (Both were on foot, as their car was disabled.) From this point on, there are two versions of what happened. The state's witness, Kerry Buell, a neighbor to Mesa, testified that he saw Mesa come home, with a man following about 8 to 10 feet behind. Mesa stopped at his mailbox, but the man, later identified as the defendant, was encouraging him to hurry up and open the door. Mesa went into his house, but left the defendant outside on the walk. Buell testified that the defendant seemed nervous and edgy. Mesa meanwhile was apparently fiddling with some clear plastic baggies on his kitchen table. Buell quit watching for a time, and when he next glanced over, the defendant was in the house with Mesa. Buell saw Mesa fall down (either fell or was pushed). Buell then left, but when he returned all the lights at Mesa's were off.

The defendant's version is different. He testified that Mesa invited him over, they went to his house together (no stop at the mailbox); they sat and chatted while drinking a few beers. The defendant denied waiting out on the porch at all. According to him, a car with two men in it pulled up to Mesa's house, and Mesa went out to talk to them. The defendant then decided to find his wife and go home. He walked out of Mesa's house, said goodby to Mesa, who was still chatting, and left. The defendant could not describe the car or the two men.

On January 2, 1980, the defendant and his wife, after having retrieved their car from a garage, packed as many of their belongings as they could, and left for California, where her parents lived. They left many belongings behind, including children's clothing, toys, food, kitchen utensils, etc. The defendant testified that they left because he was unemployed, his wife was pregnant, and she wanted to be near her family. He claimed they had been planning the move for two weeks. When they left Nampa, some of their rent remained unpaid because, according to the defendant, they could not have gone to California on their existing funds if they had paid their rent. They left January 2, at approximately midnight. The landlord was unaware they were gone until police went to the defendant's residence to find him.

The body of Tony Mesa was found on January 3, 1980, at 9:00 p.m. No one had seen him since New Year's Eve. His papers had not been picked up since December 31. He had not kept an appointment to eat a turkey dinner and watch football on New Year's Day.

Mesa's body was found in the hallway of his home, with numerous stab wounds. He had been stabbed once in each knee, once in the buttocks, once in the scalp, once in the hand (possibly a defensive wound), twice under the arm, and three times in the chest. Death, however, was caused by numerous slashes to the throat, during which Mesa's left ear was partially severed, and an artery was fully severed.

Evidence gathered at the scene included two bloody towels, numerous strands of hair, cigarette butts, and a crumpled cigarette pack.

The defendant was arrested in California on January 9, and waived extradition to return to Idaho. His car was searched with his consent and police recovered a shirt and a pair of pants, each with a minute spot of blood on them.

Witnesses testified that the defendant owned a single-edged butcher knife, with a wide but tapered 8-inch blade. Witnesses also testified that the defendant had that knife in his possession on the night of the murder. The doctor who performed an autopsy on the victim testified that the knife that inflicted all the wounds was single-edged and tapered.

An FBI agent testified that some of the hairs found on the bloody towel and on the victim's body matched hair of the defendant. (A match is defined as similarity in more than fifteen characteristics; this hair matched defendant's in twenty characteristics.) Testimony also indicated that this hair had been forcefully removed from the head and had not merely fallen out. Another FBI agent testified that the spot on defendant's pants was human blood, but could not be identified as to type. The spot on defendant's shirt was not identified as human blood.

Defendant was observed, while in custody, smoking the same brand of cigarettes as those found at the scene. He also had a distinct way of smoking those cigarettes, so as to leave only an unusually small butt. The cigarette butts found at the scene were in a similar, unusually small, condition.

Testimony by an undercover narcotics agent, Max McEvers, indicated that the defendant was a heroin user. McEvers drove around with the defendant looking for heroin to buy, and on at least one occasion went to Mesa's house. McEvers also testified that defendant was suffering from withdrawal from heroin on December 31. He testified that defendant seemed to be having some sort of trouble with his supplier, referred to as "his boy," and that defendant stated that "he was bummed out or something, really mad about his--his boy wouldn't come across with the heroin, and if he didn't start coming across with some dope, that he was going to kill him."

Several of the errors alleged by the defendant can be disposed of quickly. First, the defendant alleges error in the failure of the trial court to grant a challenge for cause to a juror. Defendant alleges that, because of the juror's position in the county (county treasurer), she stood in an attorney/client relationship with the county prosecutor, and thus should have been excused for cause. We dealt with a similar situation in State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968), where the juror challenged for cause was a janitor in the prosecutor's office. In that case, in looking at I.C. § 19-2020, ¹ which allows for challenges for implied bias, we ruled that the "proscribed relationship [here attorney /client relationship] between a prospective juror and an attorney in the case is not a ground for challenge for implied bias. Such relationship must be shown to exist between the juror and accused or the person allegedly injured by the offense charged." Id. at 167, 438 P.2d 904. There was no error in the refusal of a challenge for cause in the present case.

The defendant also claims error in the admission of certain testimony. First, he claims he was denied due process and a fair trial by the trial judge's failure to exclude the jury while James Woolery claimed his fifth amendment privilege because of threats of prosecution for perjury. After Woolery was called to the stand he said, "I can't be sworn in, I have been threatened on the grounds of perjury by the prosecuting attorney." Defendant's counsel did not object to this alleged error at trial. There have been cases where a witness, having been called to the stand by the prosecutor, claimed his fifth amendment privilege, and this was held to be reversible error. However, those cases usually involve a situation where the witness was an accomplice of the defendant, this fact was known to the jury, the prosecutor knew the witness would claim his fifth amendment right, and the prosecutor persisted in asking questions concerning the crime with which the defendant was charged. See, e.g., Robbins v. Small, 371 F.2d 793 (1st Cir.1967), cert. denied 386 U.S. 1033, 87 S.Ct. 1483, 18 L.Ed.2d 594; United States v. King, 461 F.2d 53 (8th Cir.1972); Shockley v. State, 335 So.2d 659 (Ala.Cr.App.1975), aff'd 335 So.2d 663 (Ala.1976); People v. Giacalone, 399 Mich. 642, 250 N.W.2d 492 (Mich.1977). See also, Annot., Prejudicial effect of prosecution's calling as witness, to extract claim of self-incrimination privilege, one involved in offense with which accused is charged. 86 A.L.R.2d 1443 (1962). Thus, in most of the cases where this was held to be reversible error, there existed both prosecutorial misconduct and prejudice to the defendant. In the present case, defendant has shown neither. The defendant has not shown that the prosecutor called this witness for the purpose of eliciting a prejudicial inference. He also has not shown that the claim of privilege by this witness in any way prejudiced his case. There is no indication in the record that Woolery was any sort of accomplice. There is also no indication in the record of what his testimony would have been. The state did make an offer of proof, outside the presence of the jury, but the only thing...