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State v. Jones6/15/2000
s to impeach David and the multiple attacks on his veracity, the jury chose to convict Jones on every count of murder. We do not believe that had Toni Hurley's testimony concerning David Nordstrom's prior statements been excluded, the jury would have suddenly regarded David as a liar. David's credibility as a witness did not hinge on these prior consistent statements. Moreover, even if Hurley's testimony had been excluded, all of David's testimony about Jones's involvement and admissions would still have been admissible. Therefore, although the statements were erroneously admitted under Rule 801, we find no reversible error.
B.
Jones next argues that the prosecutor's threat to prosecute defense witness Zachary Jones (Zachary) for perjury, regardless of how Zachary testified, violated the defendant's right to a fair trial, due process right to present a defense, and compulsory process rights under U.S. Constitution Amendments V, VI, VIII, and XIV, and Arizona Constitution article II, sections 4 and 24, because it prevented the defense from rebutting the testimony of the prosecution's primary witness. According to a defense interview with Zachary, while David Nordstrom, the state's star witness, was in jail following his arrest for his participation in the murders, Zachary overheard David tell another inmate, "Yeah, there's someone out there who's almost my twin brother who I can lay all my bad deeds on, so I have a second chance at life." (R.O.A. at 323.) The defense made an offer of proof of Zachary's testimony at a pre-trial hearing on June 17, 1998. Defense counsel told the court that he had spoken with Zachary's attorney, who said Zachary might invoke the Fifth Amendment. As a result, defense counsel was not certain whether Zachary would testify. During this discussion, the prosecutor volunteered to the court why Zachary might invoke the Fifth Amendment: [Prosecutor]
I am putting this on the record so that the Court understands the context of why Mr. Zachary Jones may have a valid Fifth Amendment claim here.
The Court has heard Mr. Larsen's [defense counsel] recitation of what Mr. Zachary Jones has previously said.
It is the State's belief, and I believe we have a witness who will testify if need be, that there was a conspiracy in the Pima County Jail on the part of Mr. Robert Jones and other inmates to solicit inmates to fabricate accounts about David Nordstrom bragging that he had pulled the wool over the State's eyes and he had really been personally responsible for these killings.
If he comes into court and says and sticks with the account that Mr. Larsen has given and I can prove that this is false, he is committing perjury.
If he comes into court and says, and I think there is some possibility that, okay, you know, I didn't ever have this conversation with David Nordstrom, he is admitting to participating in a conspiracy to commit perjury because he will have to admit that he agreed with Robert Jones to falsify the story . . . . (R.T. 6/17/98, at 7-8.)
The prosecutor neither contacted Zachary directly, nor spoke to Zachary's attorney. Instead, he explained to the court his analysis of the reasons Zachary might choose to invoke his Fifth Amendment rights. Six days into trial, when the defense attempted to call Zachary as a witness, Zachary's counsel informed the court that he might be liable for perjury, regardless of how he testified, and the prosecutor again confirmed the possibility in open court. Zachary consulted with his attorney and asserted his Fifth Amendment rights. These facts do not amount to prosecutorial misconduct.
We will disturb the trial court's decision not to grant
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