holding, consistent with state constitutional venue provision, that because "venue is not an element of the crime, but rather is an element in the determination of the trial court's ability to hear the case, we find venue is solely for the trial court to determine"
How later courts described this case
- holding, consistent with state constitutional venue provision, that because "venue is not an element of the crime, but rather is an element in the determination of the trial court's ability to hear the case, we find venue is solely for the trial court to determine"
- witnesses testified; offered chance to explain discrepancies before inconsistent statements introduced
- jury instructions are a matter committed to the sound discretion of the trial court
Written by the judges who cited it.
The opinion
LANE, Judge,
concurring in results.
Two issues cause me to write separately: the admission of irrelevant evidence, and the conflict between the instructions on the use of prior inconsistent statements.
The very significant hearsay problems in this case have created a tendency toward tunnel vision. That certain evidence is not prohibited as hearsay only begins the analysis of the question of admissibility. We must also ask — is it relevant? If it is not, it should not be admitted at trial.
On the basis of relevancy I would exclude the following from Omalza’s trial: (1) Jones’ statement to Arnold that “Kim was dead”; (2) Jones’ statements to Omalza about a birthday cake that had been ordered from the pharmacy and the plan to kill Allen Beard; (3) Jones list of “no people”; (4) Hill’s testimony that Jones stored pistols in her home. These statements do not make Omalza’s guilt or innocence more or less probable. That they are not hearsay does not change the fact they are not relevant, and not admissible.
It is plain to me that the trial judge correctly decided to instruct on the two uses of prior inconsistent statements: as impeachment only, and as substantive evidence of guilt. The trial judge could have avoided the fatal conflict between the two had he instructed the jury that those statements given under oath in a prior trial or hearing subject to cross-examination and penalty of perjury could be considered substantively and those which were not could be considered for impeachment only, the irreconcilable conflict between the instructions could have been avoided. The difficulty presented here brings into sharp focus the need for the trial bench to review their jury instructions in the context of the trial at hand,