Articles

Los Angeles Daily Journal
Friday, October 5, 2001

Wife's Refusal to Testify Against
Absent Husband Sparks Debate

By Matthew Heller
Daily Journal Staff Writer

LANCASTER - Prosecutors say Susan Jurcoane's marriage ended the day her husband allegedly murdered two people at a ranch near Palmdale in July 1984.

According to court documents, Josif Jurcoane came running into the couple's home, said, "Susan, I shot them both," then gathered some clothes and his passport and drove off in a pickup.

For the next 17 years, he had virtually no contact with his wife and their three children.

But in April, Josif Jurcoane was arrested in Mexico and returned to Los Angeles County for trial on two counts of first-degree murder.

And his marriage - or lack of one - is at the center of what could be a precedent-setting legal dispute.

At a preliminary hearing, Susan Jurcoane invoked the marital-testimony privilege to avoid testifying against her husband. Josif Jurcoane, 51, allegedly confessed to her minutes after shooting Lloyd "Bill"Bryden and Alice McCannel at the Mountain Brook Ranch in Valyermo.

Under Evidence Code Section 970, "a married person has a privilege not to testify against his spouse in any proceeding."

The privilege protects marriages from the disruption that such testimony could cause.

However, a Lancaster judge created a new exception for a "moribund" marriage.

"There is no marriage in the sense of a real marriage between these parties," Superior Court Judge Carol Koppel said in ordering Susan Jurcoane to take the stand.

Susan's attorney, Joseph A. Pertel, got an emergency stay and appealed Koppel's decision. The 2nd District Court of Appeal will hear oral arguments on his petition for writ of prohibition October 23.

"You can imagine the door this could open in the future," Pertel said. "Courts are going to be examining the ins and outs of relationships and marriage."

Prosecutors argued that Jurcoane's claim of privilege "flies in the face" of the purpose of Section 970.

"[It] mocks the marriages that are deserving of protection and should be receiving this type of protection," Deputy District Attorney Rouman Ebrahim said in court.

The prosecution's interest in Susan Jurcoane stems from two interviews she gave law enforcement shortly after the killings.

"It's very important testimony," Ebrahim said.

Susan married Josif Jurcoane, a Romanian immigrant, in New Jersey in August 1976. She told police that her husband began working at the 350-acre Mountain Brook fruit ranch in 1979 and frequently clashed with Bryden, the owner of the ranch. On more than one occasion, Bryden fired him.

After an argument around Memorial Day, 1984, Bryden told Josif Jurcoane to move off the ranch property. Then about a week before the murders, Susan Jurcoane said, he accused Josif Jurcoane of wrecking ranch equipment and hired someone to replace him.

On July 4, 1984, the Jurcoanes were living in a trailer about half a mile from Mountain Brook. Susan Jurcoane was making dinner when she told Josif Jurcoane that she had quarreled earlier that day with McCannel, Bryden's live-in companion. Josif Jurcoane, she said, left in a pickup, saying he was going hunting.

About 10 minutes later, Susan Jurcoane heard shots. A short while after that, Josif Jurcoane rushed into the trailer and, according to Susan Jurcoane's statement, said, "I shot them both. I need to get some clothes. I have to go." He fled in another pickup.

Susan Jurcoane called police, who located Bryden, 67, and McCannel, 39, beside the ranch's cherry-packing shed. They were both dead from shotgun wounds. In the pickup that Josif Jurcoane allegedly had driven to the ranch, police found a 12-gauge shotgun.

They could not, however, find Josif Jurcoane. According to Mexican extradition documents, he crossed the border the next day and built himself a new life in Tijuana, driving trucks and using an alias. For 17 years, he lived with another woman, his marriage effectively consigned to the past.

A part from a couple of phone calls, "he had absolutely no contact with his wife and family," Ebrahim said. "He had absolutely nothing to do with their lives."

That changed in April when Mexican police, following up on an informant's tip, arrested Josif Jurcoane, and Los Angeles County authorities obtained his extradition. He faces life in prison without parole if convicted of the murders. People v. Jurcoane, A701689 (L.A. Supr. Ct., filed July 12, 1984).

On July 20, prosecutor Ebrahim called Susan Jurcoane to testify at the preliminary hearing. But she, never having filed for divorce, cited the marital privilege.

"She doesn't want to inject an issue from the past into her relationship with her children," Pertel said.

Enacted in 1965, Section 970 is an updated version of a privilege that originated in medieval times when a wife had no recognized separate legal existence from her husband. The more contemporary rationale, the California Law Revision Commission stated, is that one spouse's testimony against the other "would seriously disturb or disrupt the marital relationship."

No California case addresses whether the privilege applies to a moribund marriage. Pertel, an attorney with the office of Robert Berke in Santa Monica, told Koppel that she simply should follow the plain language of the law.

The statute doesn't say "'a happily married person' or 'a married person who has seen or not seen his or her spouse for 10 years,'" he said. "Its says 'a married person.'"

But Ebrahim argued that the judge should consider the law's rationale and that, under federal case law, she could determine the viability of the Jurcoanes' marriage.

"There has to be a viable marriage and a marriage that stands to be disturbed or disrupted by forcing the witness to testify," he said.

Koppel agreed, concluding that the marriage was not viable and that "the privilege should not stand as a bar in this particular case."

She said, "The evidence seems clear that there is no marriage here except in name only."

All proceedings in the case are on hold pending the appellate ruling on Susan Jurcoane's writ petition. According to Loyola Law School professor Victor Gold, an Evidence Code expert, she has a good argument for reversal.

"The law has focused on whether there is a legally valid marriage at the time the spouse is called to testify," Gold said. "If you're married legally, that's enough of a marriage to protect."

Gold stressed that California courts do not have the latitude to limit marital and other exclusionary privileges that the federal courts enjoy.

Koppel's ruling "creates a question of where you draw the line" between what does or does not constitute a viable marriage," Gold said.

"It subjects judges to the burden of holding hearings into matters I think they would rather not get into," Gold said.

Pertel said he believes the sanctity of all marriages is at stake.

"What if a couple separates for a month?" he asked. "What is the next step? How do you look at the next marriage?"

For his part, Ebrahim acknowledged that the marital privilege "should not be taken lightly."

But he said "there are some instances that clearly go against the purpose of the privilege" and judges can make such distinctions.

"It makes sense to approach it in the same way federal courts have approached it," Ebrahim said.

Prosecutors also contended in a brief that society will lose less "from a disruption of the [Jurcoanes'] marriage that it stands to gain from the testimony which would be available without the privilege."

Gold, however, predicted legal disruption ahead if Susan Jurcoane's claim is denied. Criminal defendants, he said, tend to have lived more unstable lives "than the rest of us, and their relationships are often rocky."

"This would open the door to prosecutor's arguing in any [criminal] case that the privilege should not be applied," Gold said.