Thursday, November 8, 2001
Appeals Court Upholds Spousal Privilege for Couple Separated 17 Years
From Staff and Wire Service reports
A woman whose husband left her for 17 years, fleeing to Mexico after being accused of two murders and living with another woman, can not be forced to testify against him, this district’s Court of Appeal ruled yesterday.
Overturning the ruling of a judge in Lancaster, the court said the fact that Susan Jurcoane did not see her husband for the nearly two decades that he was a fugitive could not be used to overcome California’s marital privilege.
Federal courts have applied common law principles that delve into the bona fide nature of a marriage, and make exceptions to the privilege against being forced to testify against a spouse when the marriage appears to continue in name only.
But Justice Rubin Ortega said no such exceptions exist in California, where the privilege statute, and its exceptions, are clear.
“Only the Legislature could choose to add such an exception to the existing express statutory marital privilege exceptions listed in [Evidence Code Section] 972,” Ortega said.
Jurcoane married to Josif Jurcoane in New Jersey 1976 and later moved with him to California.
Josif Jurcoane allegedly killed his employers, Lloyd Bryden, 47, and Alice McCannel, 39, at a cherry ranch in Antelope Valley in 1984. He fled to Mexico, assumed a false name, claimed Mexican citizenship, got work as an auto mechanic and lived in Tijuana for 17 years.
He was arrested in Mexico on drug charges and his true identity was discovered. Mexican officials, who have declined to return fugitives who face the capital charges to the U.S., agreed to turn him over after District Attorney Steve Cooley said he would not seek the death penalty.
Susan Jurcoane invoked marital privilege after she was called as a prosecution witness during a preliminary hearing for her husband, but retired San Bernardino County Superior Court Judge Carol Koppel, sitting on assignment in Lancaster, declared her marriage “moribund” and ruled that the spousal privilege didn’t apply.
At last Tuesday’s hearing, Deputy District Attorney Patricia Martinez argued that the appellate panel should make an exception in this case.
The prosecutor argued that Josif Jurcoane “was self-described as single” and that he and his wife had no contact for 17 years.
But Joseph Pertel, the attorney for Susan Jurcoane, said his client has been “lawfully” married to the defendant, and that creating an exception would violate state law and undermine other privileges, such as attorney-client or doctor-patient.
Pertel said the Legislature “certainly” would have created exceptions in the Family Code, which defines under what terms a marriage is created and terminated, had it desired.
According to the Family Code, a marriage is terminated by a death of one party, an annulment or divorce.
Jurcoane, who is being held without bail, could be sentenced to life in prison without parole if convicted of both counts of murder and the special circumstance of multiple murder, said Deputy District Attorney Rouman Ebrahim.
Authorities said Jurcoane worked at the ranch but was fired on Memorial Day 1984. His wife was still working there when the defendant went there on July 4 that year and argued with the victims, according to authorities.
Bryden and McCannel were hit in the upper body by at least two shotgun blasts, Ebrahim said. Jurcoane, who had fled to Mexico by then, was charged with the murders six days later, Ebrahim said.
The case is Jurcoane v. Superior Court, People RPI, B152000.
Copyright 2001, Metropolitan News Company