2008-M-087             State of Minnesota, Respondent, vs. Kent Richard Jones, Appellant.

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.

The privilege against marital communications prevents one spouse from testifying against the other during the marriage.  Absent special circumstances, failure to object by the non-testifying spouse constitutes a waiver of the privilege.

Following a jury trial, appellant Kent Richard Jones was found guilty of first-degree 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.

Dietzen (Page, Paul Anderson, Meyer, Barry Anderson, and Gildea)

               Took no part”  Magnuson

[MURDER}