Opinion
No. 1 CA-SA 18-0089
07-10-2018
KEVIN JOKUMSEN, Petitioner, v. THE HONORABLE RONDA FISK, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA ex rel. WILLIAM MONTGOMERY, Maricopa County Attorney, Real Party in Interest.
COUNSEL Maricopa County Public Defender's Office, Phoenix By Casey Arellano Counsel for Petitioner Maricopa County Attorney's Office, Phoenix By Jeffrey R. Duvendack Counsel for Real Party in Interest
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Special Action from the Superior Court in Maricopa County
No. CR2017-002889-001
The Honorable Ronda R. Fisk, Judge
JURSIDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Maricopa County Public Defender's Office, Phoenix
By Casey Arellano
Counsel for Petitioner
Maricopa County Attorney's Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Real Party in Interest
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge James B. Morse Jr. and Judge Lawrence F. Winthrop joined.
CATTANI, Judge:
¶1 Kevin Jokumsen has been indicted by a grand jury on one count of second-degree murder stemming from the disappearance of his wife in 1987. He now seeks special action review of the superior court's denial of his motion to remand to the grand jury for a new determination of probable cause. We accept special action jurisdiction because challenges to the denial of a motion to remand generally must be made by special action before trial and are not reviewable on appeal. State v. Moody, 208 Ariz. 424, 439-40, ¶ 31 (2004). Nevertheless, for reasons that follow, we deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 The victim (Jokumsen's wife) met up with her friend, Myra, on Friday, July 3, 1987. The victim had a split lip and bruising that she attributed to Jokumsen, and she told Myra that because of the physical abuse, she was taking her children and moving to Washington the next Monday. The victim went to her home the night of Sunday, July 5, to get the children ready to leave the next day. According to Jokumsen, after the victim returned home on July 5, he gave her money for a moving truck, and she left in their Chevy Chevelle. Jokumsen claimed that when he woke up the following morning, the victim was not home, and the car had been cleaned and parked in the carport.
¶3 The victim's mother reported her missing on July 11, 1987. The victim has not been seen, nor her body discovered, since July 5, 1987.
DISCUSSION
¶4 Jokumsen argues that the State violated his right to due process in connection with the grand jury proceedings by (1) unfairly presenting misleading testimony about alleged domestic violence, (2) not answering the grand jurors' factual inquiries, and (3) misleading the grand jurors regarding the State's previous involvement in the case. We review
the denial of a motion to remand an indictment for an abuse of discretion. Francis v. Sanders, 222 Ariz. 423, 426, ¶ 10 (App. 2009).
I. Evidence of Domestic Violence.
¶5 Jokumsen argues that the grand jury's probable cause determination was based almost entirely on inadmissible propensity evidence. He argues in particular that testimony regarding alleged domestic violence between him and the victim before they married and in the days before the victim's disappearance improperly showed a propensity to commit violence and was thus inadmissible under Arizona Rule of Evidence 404, which generally prohibits evidence of a person's character or a trait of character to "prov[e] action in conformity therewith or on a particular occasion."
¶6 Preliminarily, Jokumsen's assertion that the State relied almost entirely on propensity evidence is incorrect. The State presented evidence of Jokumsen's failure to report his wife missing, his unusual story about the victim leaving the house in the couple's Chevelle that was returned the following morning after having been cleaned, and Jokumsen pawning his missing wife's jewelry after her disappearance.
¶7 Moreover, the evidence at issue was properly admitted. Apart from rules regarding privilege, the rules of evidence do not apply to grand jury proceedings. Ariz. R. Evid. 1101(d). Thus, Jokumsen's reliance on Rule 404 is unavailing. Further, evidence of the domestic violence immediately preceding the victim's disappearance was relevant to show intent, i.e. the existence of "ill will toward the victim" that may have "render[ed] the commission of the crime more probable." State v. Jeffers, 135 Ariz. 404, 418 (1983). Thus, the evidence was not improper, even under Rule 404. See Ariz. R. Evid. 404(b) (other act evidence may be admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").
¶8 Jokumsen further asserts that the State misled the grand jurors by stating that they could consider prior bad acts as propensity evidence. But the prosecutor did not reference "propensity" evidence, and instead stated only that "[a] history of domestic violence between two people is something that [jurors] can consider" when making decisions about murder. This type of statement is not improper, see Jeffers, 135 Ariz. at 418, and did not improperly suggest that jurors could consider evidence of a propensity for violence.
¶9 Jokumsen also asserts that the State misled the grand jurors by indicating that domestic violence was the cause of death. In response to the detective's statement that "[t]here was no blood detected anywhere, but that's not necessarily surprising," the prosecutor asked the detective if there were allegations that Jokumsen had choked the victim in the past, and the detective responded affirmatively. This line of questioning did not affirmatively state a cause of death, but rather, provided context for the witness's statement that the lack of blood was "not necessarily surprising." Accordingly, the State did not unfairly present evidence of past domestic violence or mislead the grand jury regarding whether the evidence could be considered for a reason other than to establish motive or intent.
II. Evading Grand Jury Investigation.
¶10 Jokumsen next argues that the State misled the grand jurors by not directly answering a grand juror's question about whether there was any new evidence in the case after 1987. Jokumsen points to the following exchange:
Grand juror: So I guess my question is what's the difference between then [1987] and now?
Witness: In my opinion?
State: Okay.
Grand Juror: Why are we doing this now instead of in the last 30 years?
State: Was this case ever submitted to the County Attorney's Office before now?
Witness: It was not.
State: So the workup was done by you?
Witness: Correct.
State: And then you submitted it to our office, and now we're submitting it to the Grand Jury to make a decision?
Grand Juror: Thank you.
Jokumsen asserts that the State's interjection misled the grand jury because it prevented the witness from unequivocally stating that there has not been
any significant facts or evidence discovered since 1987. Jokumsen further asserts that this is "both exculpatory and material" because a lack of evidence after thirty years "may deter a jury from finding probable cause." But if the grand jury determines that the totality of the evidence is sufficient to determine probable cause, when the evidence was discovered is irrelevant. Moreover, the lack of new evidence since 1987 is not necessarily exculpatory, since it also demonstrates a lack of new evidence that the victim is still alive—such as use of the victim's social security number or name, and the fact that the victim's body has not been found.
III. Maricopa County Attorney's Office's Previous Involvement.
¶11 Finally, Jokumsen argues that testimony about the Maricopa County Attorney's Office ("MCAO")'s previous involvement in the case was inaccurate and misleading. Misleading or inaccurate information will not invalidate an otherwise valid determination of probable cause unless the information is "material." State v. Superior Court (Smith), 186 Ariz. 143, 145 (App. 1996). Evidence is material only when it relates to the elements of the offense charged. See State v. Jacobson, 22 Ariz. App. 128, 130 (App. 1974).
¶12 Here, the State's witness testified that this case had never before been submitted to MCAO, and the State did not correct this statement despite MCAO having been involved in the case in 1987 and 1998. Although the testimony was inaccurate, it was not material to the indictment because it did not relate to any element of the offense charged—second-degree murder. See Ariz. Rev. Stat. § 13-1104 (setting forth elements of second-degree murder); see also Jacobson, 22 Ariz. App. at 130. Thus, the statement does not invalidate the determination of probable cause. See Smith, 186 Ariz. at 145.
CONCLUSION
¶13 For the foregoing reasons, we accept jurisdiction but deny relief.