Jones v. State

843 S.W.2d 487, 1992 Tex. Crim. App. LEXIS 110, 1992 WL 232834
Court of Criminal Appeals of Texas·Decided April 29, 1992·No. 69894·Published·Cited by 370 cases

Opinions

OPINION

MALONEY, Judge.

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 [490]*490Code, § 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 Comalan-der 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 counterpart1, 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.

Tex.R.Crim.Evid. 804(b)(1).

A witness is rendered unavailable when she invokes her Fifth Amendment privilege not to testify. Tex.R.Crim.Evid. 804(a)(1) (A witness is unavailable when she “is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of [her] statement.”); 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 Coma-lander 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 [491]*491the 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

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Jones v. State, 843 S.W.2d 487, 1992 Tex. Crim. App. LEXIS 110, 1992 WL 232834 (Tex. 1992).

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