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STATE OF MINNESOTA IN SUPREME COURT A07-457

Sherburne County

Dietzen, J. Took no part, Magnuson, C.J.

State of Minnesota, Respondent, vs. Kent Richard Jones, Appellant. Filed: July 31, 2008 Office of Appellate Courts

SYLLABUS 1. Before an appellate court reviews unobjected-to prosecutorial conduct for

error, the defendant must show that the error is plain; that is, the conduct must contravene case law, a rule, or a standard of conduct. When no binding precedent exists and the law is unsettled, an error cannot be deemed plain. 2. The privilege against marital communications prevents one spouse from

testifying against the other during the marriage. Absent special circumstances, failure to object by the nontestifying spouse constitutes a waiver of the privilege. Affirmed. Heard, considered, and decided by the court en banc.

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OPINION DIETZEN, Justice. Following a jury trial, appellant Kent Richard Jones was found guilty of firstdegree murder committed during the course of a criminal sexual assault, second-degree intentional murder, and first-degree criminal sexual conduct. Jones asserts that numerous instances of unobjected-to prosecutorial misconduct deprived him of a fair trial, that the district court erroneously admitted testimony in violation of the marital communications privilege, and that the court erroneously excluded evidence supporting his defense of an alternative perpetrator. In a supplementary pro se brief, Jones also asserts that the search warrant for his DNA was unsupported by probable cause and that numerous errors during the grand jury proceedings require dismissal of his indictment. Because Jones was not deprived of a fair trial and the district court properly applied the applicable evidentiary standards, we affirm. Linda and Charles Jensen were married in 1971, divorced 8 years later, and remarried in 1991. They lived together with her young son and infant daughter in Big Lake, Minnesota. Their oldest son, Andrew, lived nearby. Appellant Kent Richard Jones and his wife Deborah lived a short distance from the Jensens home. On February 24, 1992, Charles discovered Lindas dead body in the bedroom of their home. Her nude body was partially covered by a comforter, which had been pinned to her chest with a knife. Charles immediately notified law enforcement officials, who arrived at the scene shortly thereafter. The police conducted an extensive investigation, but found almost no physical evidence in the home. The sheets from the bed were 2

missing and have never been located, no fingerprints discovered in the home were of sufficient quality to yield an identification, and a K-9 unit survey of the area around the Jensen residence uncovered no other evidence. An autopsy revealed that Linda had been beaten, sexually assaulted anally and vaginally, strangled, and slowly stabbed numerous times in the chest. A quantity of semen was recovered from Lindas body, and it was determined that she had been killed in the course of a criminal sexual assault. Based on a number of factors, the medical examiner concluded that Linda died sometime on the morning of February 24, likely between 8:00 and 10:00 a.m. Law enforcement officers initially focused their investigation on Charles and Andrew Jensen, whom they considered the most likely suspects. Officers also

interviewed residents of the neighborhood to determine if anyone had observed anything unusual on the morning of the murder. Jones was briefly interviewed at his residence, but did not mention that he knew Linda or her family, or that he had seen any suspicious activity on the day of the murder. Semen found at the crime scene yielded a DNA profile, which was compared against samples from approximately 80 suspects and a national DNA database, but no match was found. Investigators reviewed over 1,000 other possible leads, but without a DNA match or other evidence to identify a perpetrator, the case went cold. In 2000, a citizen informant came forward with information connecting Jones to Linda Jensens murder. Subsequently, a search warrant was obtained for a sample of

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Joness DNA. Testing of that sample revealed that Joness DNA matched that of the semen found on Lindas body. The State convened a grand jury, which indicted Jones for first-degree murder committed during the course of criminal sexual conduct, in violation of Minn. Stat.

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