Brown v. State

753 A.2d 84, 359 Md. 180, 2000 Md. LEXIS 320

• Court: Court of Appeals of Maryland
• Decided: June 9, 2000
• Docket: 83, Sept. Term, 1999
• Status: Published

Opinions

WILNER, Judge.

After a jury trial in the Circuit Court for Baltimore City, petitioner was convicted of first degree murder, along with various handgun offenses, for which he was sentenced to life imprisonment without the possibility of parole. The victim was petitioner’s girlfriend, Makea Stewart. One of the witnesses who testified against petitioner was his wife, Jennifer Sellers Brown, and, in the course of her testimony, she stated that, on the night of the murder, petitioner confessed to her that he had killed Ms. Stewart.

Petitioner complains that that testimony was inadmissible under Maryland Code, § 9-105 of the Courts and Judicial Proceedings Article, (CJP), which provides that “[o]ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage.” Correctly regarding his inculpatory statement to Ms. Brown as a confidential communication made during the marriage, petitioner contends that his wife was, indeed, “incompetent” to testify regarding it.¹ Despite the language of the statute, the State views § 9-105 not as rendering a spouse “incompetent,” but as providing petitioner with a privilege to preclude testimony regarding confidential marital communications, a privilege that can be waived. In this case, it argues, the privilege was waived by petitioner’s contention, expressed at different times throughout the trial, that his wife was, in fact, the killer—that she killed Ms. Stewart out of jealousy. The State urges that, when a defendant asserts a “my spouse did it” defense, he or she waives any privilege under the statute to prevent the spouse from relating otherwise confidential marital communications in response to that accusation.

In affirming petitioner’s convictions, the Court of Special Appeals, in an unreported opinion, accepted the State’s argument. Over a dissent, it held flatly that § 9-105 provides a privilege, not an actual incompetence, and that the privilege “is waived by the criminal defendants who, either personally or through counsel, present a ‘my spouse did it’ theory of defense.” We granted certiorari to review that conclusion. We shall hold that (1) § 9-105 does not render a spouse “incompetent” to testify regarding confidential marital communications but rather establishes a privilege on the part of the person making the communication to preclude testimony by the person’s spouse that discloses the communication, (2) the privilege may be waived by the person, but (3) it was not waived in this case. Accordingly, we shall reverse the judgment of the Court of Special Appeals.

BACKGROUND

Makea Stewart was found dead around 3:30 a.m. on September 10, 1995 in an alleyway behind 3326 Gwynns Falls Parkway, in Baltimore City. She had been shot eight times with a .380 caliber handgun that was owned by petitioner and was later recovered from his car. Petitioner’s fingerprints were found on the magazine of the weapon. A witness, Jerry Manns, reported hearing gunshots from his kitchen window at approximately the time of Ms. Stewart’s reported death. From his window, he saw an African-American male in his twenties leave the alley and drive off in a small two-door car with a malfunctioning muffler. He saw the same man return a short time later with a gun in his hand. Manns heard a single gunshot and then saw the man get back into his car and leave. It was later established that petitioner, an African-American male, drove a two-door Mazda with a faulty muffler. Near Ms. Stewart’s body Detective Barlow discovered her pager, which showed that several calls had been made to the pager from a cellular phone later found in petitioner’s possession.

Ms. Stewart’s mother, Jill Sullivan, informed Detective Barlow that Ms. Stewart had been having an affair with a married man named Keith, that her daughter told her two days before the murder that she (Ms. Stewart) was pregnant with Keith’s baby and that she was going to confront Keith about the pregnancy. A friend of Ms. Stewart, Cassandra Green, testified at trial that she overheard Ms. Stewart telling petitioner that she might be pregnant and that petitioner told the victim that he knew she was pregnant and that she had a decision to make. Genetic tests confirmed that, at the time of her death, Ms. Stewart was pregnant with petitioner’s child.

The State’s theory was that petitioner, from the very inception of his marriage to Ms. Brown, was romantically involved with Ms. Stewart, that Ms. Stewart became pregnant as a result of the affair, that petitioner insisted that she abort the pregnancy, that she refused, and that he killed her because he feared that the pregnancy would wreck his marriage. Petitioner made clear, both at the outset and throughout the trial, that his defense was based on the proposition that his wife, who was aware of his affair with the victim and had threatened both him and the victim in the past, killed the victim out of jealousy. He asserted that position to the court in arguing a pre-trial motion, he asserted it to the jury in his opening statement, he implied it in his own testimony and in the cross-examination of some of the State’s witnesses, and he again asserted it more directly in closing argument.

In its case-in-chief, the State called Ms. Brown, who recounted that she and petitioner were married on August 20, 1994, and that on September 9, 1994—the day they signed a lease on their new apartment—she discovered a picture of Ms. Stewart in petitioner’s car and thus learned that he had a girlfriend. The problem was exacerbated by the fact that Ms. Stewart continued to call petitioner, which led to arguments between him and Ms. Brown. Ms. Brown had a number of conversations with Ms. Stewart, complaining about her calls to petitioner. They were all “heated discussions,” she said. At one point, when petitioner said that he had a doctor’s appointment and would be late, Ms. Brown discovered him and Ms. Stewart together at a bowling alley, which led to another argument and to Ms. Brown throwing a bottle at the victim. All of this testimony was admitted without objection.

Ms. Brown then testified that on September 9, 1995—the night of the murder—petitioner returned home at around 4:00 a.m., that she asked him where he had been and that he refused to tell her. Ms. Brown then got into an argument with petitioner about his talking with the victim. In response to the question, “What happened then,” Ms. Brown said, apparently to everyone’s surprise, “He told me he killed her and I didn’t believe him.”

Counsel immediately claimed surprise and complained that the State had failed to disclose this inculpatory statement. The court reserved on counsel’s implicit objection but noted that it was “not persuaded that it’s excludable at this point,” apparently because the admission, which was not included in the written statement Ms. Brown had given to the police, was not one made to a State agent. The focus was solely on the alleged non-disclosure, the court stating that it had “heard nothing to indicate that it’s something that the State was mandated to warn you about in advance, basically.” Petitioner requested “a continuing objection to the entire line of questioning,” without specifying any other basis for the objection. Ms. Brown then repeated that petitioner told her that he had killed the victim. She added:

“I didn’t believe him so I asked him why and where and he said that ... he did it because I always harassed him about her and he told her that she would always be around, she wouldn’t leave him alone and she wasn’t going anywhere so he killed her and then I asked him, well, where, he wouldn’t tell me. I said well, where’s your gun? He wouldn’t tell me. And then I asked him how and he wouldn’t tell me. He said the less I knew the better it was for him and I told him that he was going to jail and he said I know, and that was it.”

Ms. Brown recounted two additional conversations. Later that evening, they learned from television news that two bodies had been found, “and I asked if one of them was her and he said yes. I said which one, he wouldn’t tell me.” At some point during the next five days, Ms. Brown put petitioner out of the apartment. After petitioner was arrested, Ms. Brown said that she and petitioner talked about the murder on several occasions:

“[0]n one visit I asked him if she cried and he told me he didn’t know and he told me what happened and that he was scared and when she turned to walk away he started shooting and he couldn’t stop, and that was it. And then I asked him over the phone if he ever thought about her and he said only different ways that it could have been done, referring to how she died.”

At the conclusion of Ms. Brown’s testimony, petitioner, for the first time, called the court’s attention to § 9-105, arguing that, until the statement was “blurted out,” there was no occasion to raise the confidentiality issue. Although initially admonishing counsel for not having raised that objection earlier, the court was eventually convinced that “[t]his is a competency issue”—not a privilege—and that, because the defense was previously unaware of the admission, it could be excused for not having raised the issue earlier. It therefore instructed the jury that the testimony was stricken. Following further discussion at a later point in the trial, however, the court reconsidered that ruling. Relying on Harris v. State, 37 Md.App. 180, 376 A.2d 1144 (1977), in which the Court of Special Appeals held that the exclusionary provision of § 9-105 did not apply when the confidential communication “constitutes a threat or crime against the other spouse,” id. at 184, 376 A.2d at 1146, the court ultimately concluded that, by accusing Ms. Brown of having committed the murder, he put her at risk and could not invoke § 9-105 to preclude her from replying to that accusation. The court then informed the jury that it had reconsidered its ruling and that Ms. Brown’s testimony as to “his confession, virtually of the murder” was “unstricken” and “back in the case.” Petitioner testified in his defense. He denied confessing to his wife that he had killed Makea Stewart and denied as well ever having indicated to her that he knew anything about Ms. Stewart’s death.

DISCUSSION

Section 9-105: Competence or Privilege?

Petitioner’s argument is straightforward and is based on a strict and literal construction of the word “competent,” as used in the statute. He reminds us that § 9-105 declares a spouse “not competent” to disclose certain communications. “Not competent,” he posits, means what it says—not competent, legally unqualified to testify to the matter. When a person is declared “not competent,” he urges, there are no exceptions to the disqualification; there is no doctrine of waiver. No action or inaction by the person, by the person’s spouse, or by anyone else can overcome the legal disqualification.

The State does not disagree with petitioner’s description of true incompetence but argues that that is not what the General Assembly intended when it enacted § 9-105. Looking to the legislative history of § 9-105, to the way we have characterized the statute in the past, and to the way other courts and leading commentators on evidence law have viewed similar statutes, the State insists that, despite its use of the words “not competent,” § 9-105 does not render a spouse incompetent, but merely provides a privilege to preclude testimony by a spouse that would disclose a confidential marital communication—a privilege that may be waived.

We are dealing here with a question of statutory construction—did the Legislature, when it first enacted and subsequently amended the statute that is now codified as § 9-105, really mean to render a person “not competent” to testify to confidential marital communications, understanding that, by doing so, it would admit of no circumstance, in either a civil or criminal case, under which such a communication could be revealed? Did the Legislature intend to disqualify a person from testifying to such a communication even when the person’s spouse has already disclosed the communication to others? Did it intend to disqualify a person from testifying to such a communication even when the person’s spouse solicits the testimony, or at least does not object to it? If the communication made by petitioner to his wife had been exculpatory rather than inculpatory, but nonetheless confidential, did the Legislature intend, as a matter of Maryland evidence law, to preclude Ms. Brown from testifying to that communication without objection from petitioner? Did the Legislature intend that a stranger to the marriage—perhaps even the State in a criminal case—be able to preclude testimony that both spouses desire be admitted on the ground it would disclose a communication that was confidential when made?

The rules of statutory construction are well-known and well-settled. Our paramount objective is to ascertain and effectuate the intent of the Legislature when it enacted (and periodically amended) the statute. If the language is clear and unambiguous “and is consistent with the purposes of the legislation in general and the particular provision being interpreted,” our inquiry ordinarily ends at that point. McNeil v. State, 356 Md. 396, 404, 739 A.2d 80, 84 (1999). As we pointed out in Kaczorowski v. Mayor & City Council of Baltimore, 309 , 525 A.2d 628, 632 (1987), however—and in many cases since—when there is some question as to whether a literal interpretation of the language used in the statute really would be consistent with the purpose of the legislation, we may look beyond that literal meaning. In such a circumstance, “the court, in seeking to ascertain legislative intent, may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.” Id. at 513, 525 A.2d at 632 (quoting Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986)). As we pointed out in Condon v. State, 332 Md. 481, 492, 632 A.2d 753, 758 (1993), “[i]t often is necessary to look at the development of a statute to discern legislative intent that may not be as clear upon initial examination of the current language of the statute.” See also C.S. v. P.G. County Social Services, 343 Md. 14, 24, 680 A.2d 470, 475 (1996).

Section 9-105 cannot be considered in isolation; it was not considered in isolation by the Legislature. It is part of the subtitle of CJP dealing with the “Competence, Compellability, and Privilege” of witnesses. Section 9-101 sets forth the general rule that, unless otherwise provided in the subtitle, (1) a person may not be excluded from testifying in a proceeding because of incapacity from crime or interest in the matter in question, and (2) “[ljitigants and their spouses are competent and compellable to give evidence.” There are two exceptions to that general rule dealing with spouses. Section 9-105, as noted, precludes a spouse from disclosing any confidential communication between the spouses during the marriage, and § 9-106 declares that, except in cases of spousal or child abuse, the spouse of a person on trial for a crime may not be compelled to testify as an adverse witness.

As we pointed out in Coleman v. State, 281 Md. 538, 380 A.2d 49 (1977), as the Supreme Court observed a short time later in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), and as Wigmore and McCormick relate, the limitations on spousal testimony, including those embodied in §§ 9-105 and 9-106, stem from different roots—an ancient common law privilege to preclude one’s spouse from testifying adversely, a nearly-as-ancient common law disqualification to testify either adversely or on each other’s behalf, and, more recently, a predominantly statutory preclusion of testimony regarding confidential communications made during the marriage.

The earliest root seems to be the privilege that a husband had to preclude adverse testimony by his wife. Wigmore cites a 1580 chancery decision, Bent v. Allot, 21 Eng. Rep. 50 (Ch. 1580), for the proposition that, at that early time, “the wife’s testimony on her husband’s behalf is treated as receivable, while his privilege to keep her from testifying against him is apparently sanctioned.” 8 John Henry Wigmore, Wigmore on Evidence § 2227, at 211 (McNaughton Rev.1961).² Wigmore posits that the privilege may have derived from principles applied by the ecclesiastical courts and from “a natural and strong repugnance [that] was felt (especially in those days of closer family unity and more rigid paternal authority) to condemning a man by admitting to the witness stand against him those who lived under his roof, shared the secrets of his domestic life, depended on him for sustenance and were almost numbered among his chattels.” Id. at 212.

Writing in 1628, Edward Coke described a very different exclusionary rule, with a different theoretical basis. Coke treated the rule not as a husband’s privilege but as an absolute disqualification—that a wife “cannot be produced either against or for her husband, quia sunt duae animae in came una [for they are two souls in the same flesh].” 8 Wigmore, supra, § 2227, at 212 (quoting Edward Coke, A Commentary upon Littleton 65 (1628)). The Trammel Court explained:

“This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife.”

Trammel, supra, 445 U.S. at 44, 100 S.Ct. at 909, 63 L.Ed.2d at 190-91. See also Coleman, supra, 281 Md. at 541-42, 380 A.2d at 52.³

Coke’s rule of disqualification was obviously much broader than the earlier-recognized privilege. It not only applied in both civil and criminal cases but precluded testimony either for or against the spouse. Blackstone, -writing 140 years after Coke, commented:

“But, in trials of any sort [husband and wife] are not allowed to be evidence for, or against, each other: partly because it is impossible their testimony should be indifferent; but principally because of the union of person: and therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of law, ‘nemo in propria causa testis esse debet’ [no man may testify in his own cause]; and if against each other, they would contradict another maxim, ‘nemo tenetur seipsum acensare, ’[no man can be compelled to incriminate himself].”

1 William Blackstone, Commentaries on the Laws of England 431 (Spec, ed.1983) (emphasis in original). See also O’Connor v. Marjoribanks, 134 Eng. Rep. 179, 182 (C.P.1842); The King v. Cliviger, 100 Eng. Rep. 143 (1788).

Although the disqualification enunciated by Coke extended beyond both marital communications and knowledge acquired as a consequence of the marital relationship and was stated in absolute terms, it was limited in some respects and was always subject to some exceptions. As both Greenleaf and Wigmore point out, it applied only when the husband or wife was a party to the suit in which the other was called as a witness and did not extend to collateral proceedings between third parties, and, from the earliest time, a wife was permitted to testify against her husband when she was the victim of his criminal conduct. 8 Wigmore, supra, § 2227, at 213 (citing Lord Audley’s Case, 23 Eng. Rep. 1140, 1141 (1631)), in which the court held, that a wife may be a witness against her husband “for rape upon her, instigated by him.” See also Simon Greenleaf, Greenleaf on Evidence § 176, at 247 (1st ed. 1842); 1 Blackstone, supra, at 431.⁴ That exception was also recognized under Maryland common law. See Hanon v. State, 63 Md. 123, 125-26 (1885) acknowledging “[t]he principle of necessity, by which under the common law a wife is permitted to testify against her husband on a charge affecting her liberty or person.”

Although the disqualification remained tied, at least in part, to the fiction of husband and wife being a single entity with a presumed self-interest, it began, in time, to acquire as well a public policy rationale. Writing in 1842, Greenleaf observed that the exclusion of spouses as witnesses “is founded partly on the identity of their legal rights and interests; and partly on principles of public policy, which lie at the basis of civil society.” Greenleaf, supra, § 334, at 384 (emphasis added). See also W.M. Best, The Principles of the Law of Evidence § 586, at 730 (5th ed. 1870).

A specific preclusion of testimony disclosing communications made between husband and wife during their marriage, even after the parties were divorced, was recognized at least by 1824 in England, although it is not clear whether that was the product of an independent rule focusing on marital communications or an extension of the general disqualification to cover testimony given after the parties were divorced. In Doker v. Hasler, 171 Eng. Rep. 992 (1824), Chief Judge Best recalled a case in which “Lord Alvanley refused to allow a woman, after a divorce, to speak to conversations which had passed between herself and her husband, during the existence of the marriage.” Id. at 992. Judge Best announced his concurrence with such a rule, noting that “the happiness of the marriage state requires that the confidence between man and wife should be kept for ever inviolable.” Id. In his 1842 work, Greenleaf noted that the general marital disqualification operated even if, at the time of trial, the party and the witness were no longer married, and he offered as a rationale for that extension that “[t]he great object of the rule is to secure domestic happiness, by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either, by means of the hallowed confidence.” Greenleaf, supra, § 338, at 386. He analogized the exclusion, “in its spirit and extent,” to the attorney-client privilege. Id. In essence, he was stating the same rationale for a narrower, more focused, rule that was enunciated by Chief Judge Best—a rule much more akin to a privilege than to a lack of competence to testify.

Notwithstanding these precursors, the general spousal disqualification continued to operate until modified by statute, and it was largely through those statutes that the narrower rule precluding disclosure of marital communications came into the law. As both Wigmore and McCormick point out, so long as the disqualification operated, there was no practical need for a separate rule dealing just with confidential marital communications. 8 Wigmore, supra, § 2233, at 644; 1 McCormick on Evidence § 78, at 324. The statutory march began in 1851 with 14 & 15 Vict. c. 99 § 2, which partially abolished the disqualification of parties and declared that, in civil actions, the parties were competent and compellable to give evidence on behalf of either party. The next step was taken two years later with the enactment of the Evidence Amendment Act of 1853, 16 & 17 Vict. c. 83. §§ 1-3. In that Act, Parliament declared, in relevant part, that (1) except as otherwise provided, the husbands and wives of the parties were competent and compellable to give evidence on behalf of either or any of the parties in any civil case, (2) nothing in the Act rendered any husband or wife competent or compellable to give evidence for or against the other in any criminal action, and (3) “[n]o Husband shall be compellable to disclose any Communication made to him by his Wife during the Marriage, and no Wife shall be compellable to disclose any Communication made to her by her Husband during the Marriage.”⁵ That last provision, which dealt only with compellability, appears to be the first statutory articulation of the confidential marital communication rule.

Many of the American States followed the lead of Parliament. As we observed in Coleman v. State, supra, 281 Md. at 542, 380 A.2d at 52, “when a trend appeared, in the period from 1840 to 1870, to abolish or restrict these common law marital disqualifications, the present privilege for confidential communications between spouses was enacted.” The Maryland General Assembly first dealt with the matter by 1864 Md. Laws, ch. 109, in which it rewrote the first five sections of the existing Evidence Code (then Article 37 of he Maryland Code). In new § 1, the Legislature abolished the common law rule precluding testimony by parties on account of their presumed self interest and declared instead that no person offered as a witness shall be excluded by reason of incapacity from crime or interest from giving evidence in any suit, civil or criminal. It specified that, in any such action, the parties litigant “and their wives and husbands shall be competent and compellable to give evidence in the same manner as other witnesses, except as hereinafter excepted.” In a new § 3 added to Article 37, the Legislature set forth a number of exceptions to that new doctrine. It first retained the rule that a defendant in a criminal case was neither competent nor compellable to give evidence for or against himself. It then stated, with respect to spousal testimony:

“[N]or, in any criminal proceeding, shall any husband be competent or compellable to give evidence for or against his wife, nor shall any wife be competent or compellable to give evidence for or against her husband, except as now allowed by law, nor in any case, civil or criminal, shall any husband be competent or compellable to disclose any communication made to him by his wife during the marriage, nor shall any wife be compellable to disclose any communication made to her by her husband during the marriage.”

(emphasis added).

In 1876, the Legislature rewrote § 3 of Article 37. The main purpose of the 1876 amendment seems to have been to remove the disqualification of defendants to testify in their own behalf (but to continue their status as non-compellable witnesses), but, in rewriting the section the Legislature repealed the provisions enacted in 1864 regarding spousal testimony. It simply declared defendants to be competent witnesses but stated that the neglect or refusal of a defendant to testify shall not create any presumption against him. See 1876 Md. Laws, ch. 357.

We considered the effect of the 1876 amendment in Turpin v. State, 55 Md. 462 (1881). Turpin, accused of murder, called his wife as a defense witness and complained when the court declared her incompetent to testify. He argued that, under § 1 of Article 37, as rewritten in 1864, his wife would have been a competent and compellable witness, that it was only the provisions of § 3 that precluded her from testifying, and that the repeal of those provisions in § 3 by the 1876 Act left § 1 in full force. We found no merit in that argument, noting that the purpose of the 1864 Act was to remove the incapacity of persons called to testify arising from crime or their interest in the action, but that “the incompetency of a husband or wife to testify for or against each other in a criminal proceeding at the common law arose not from interest in the result of the suit, but was based upon considerations of public policy, growing out of the marital relation.” Id. at 477-78. Effectively, we adopted the Greenleaf rationale for the disqualification rule rather than that posited by Coke. We thus held that § 1 of Article 37, standing alone, “would not operate to alter the rule of the common law which made a husband or wife an incompetent witness in a criminal prosecution against the other.” Id. Section 1, we declared, applied only to civil actions and had no reference to criminal cases. The only effect of the 1876 amendment to § 3, we said, was to permit defendants to testify in their own behalf and not to remove “the incompetency of the wife, which existed at the common law, to testify in the case of a criminal prosecution against her husband.” Id. at 478. Compare Classen v. Classen, 57 Md. 510 (1882), holding that a wife was competent to testify against her husband in a civil case.

Perhaps as a result of Turpin, the provisions regarding spousal testimony were restored by 1888 Md. Laws, ch. 545. That Act added back to § 3 of Article 37 the provision that, “[i]n all criminal proceedings the husband or wife of the accused party shall be competent to testify,” but that “in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage.”

As a result of the 1888 amendment, the law, as ultimately codified in Maryland Code Article 35, §§ 1 and 4 (1957) was that (1) spouses were generally competent and compellable witnesses; (2) in criminal proceedings, the spouse of the defendant was “competent to testify,” but (3) “in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage.” The law remained in that state until 1965, when the Legislature added to what was then § 4 of Article 35 the provision that a person could not be compelled to testify as an adverse party or witness in any criminal proceeding involving the person’s spouse. In enacting CJP, the Legislature further divided these provisions into separate sections. The general competence and compellability of spouses to testify was stated in § 9-101. The non-compella-bility of a spouse to testify as an adverse witness in a criminal case was placed in § 9-106, and the preclusion against the disclosure of confidential marital communications was stated in § 9-105.

What we see from this development is the legislative replacement of an actual disqualification, that had a shaky origin and was based ultimately on the common law fiction that a married woman had no separate legal status as an individual, with a much more narrowly focused rule that rested solely on the public policy objective of preserving confidences shared between husband and wife. Section 9-105 is not based, and never was based, on a notion of the true incompetence of a spouse as a witness. The seeds of this can be traced at least to Greenleaf, in 1842, who, having given a public policy rationale for the exclusion of marital confidences, treated the exclusion, “in its spirit and extent,” as analogous to the exclusion of confidences made by a client to his or her attorney. Greenleaf, supra, § 338, at 386. The Trammel Court regarded the exclusion as a “privilege for confidential marital communications.” Trammel, supra, 445 U.S. at 47, 100 S.Ct. at 911, 63 L.Ed.2d at 193.⁶ Although in State v. Enriquez, 327 Md. 365, 373, 609 A.2d 343, 346 (1992), we, in one passage, declared a wife “incompetent under the statute to divulge the marital communication over her husband’s objection,” we otherwise consistently referred to § 9-105 as conferring a statutory marital communication “privilege,” id. at 367, 369-73, 609 A.2d at 343-46, which is consistent with how we characterized the statute in Gutridge v. State, 236 Md. 514, 517, 204 A.2d 557, 559 (1964); Coleman, supra, 281 Md. at 541-546, 380 A.2d at 51-54; and State v. Mazzone, 336 Md. 379, 384, 648 A.2d 978, 980 (1994).

Every major commentator on the law of evidence has characterized statutes limiting or precluding the disclosure of marital communications as conferring a “privilege,” and as not rendering a spouse actually incompetent, notwithstanding the language used in the statute. Wigmore, throughout his discussion of the rule embodied in § 9-105, refers to it as a privilege, declaring it “plainly different” from the discarded common law disqualification. 8 Wigmore, supra, § 2334, at 645. He notes in particular that “[pjerhaps the commonest error caused by the confusion with the moribund marital disqualification was the ignoring of the right of the communicating spouse to waive the privilege in his own behalf.” Id. (emphasis in original). In § 2340, at 671, he confirms that “[t]he spouse possessing the privilege may of course waive it.” (emphasis in original). McCormick agrees that the preclusion is a rule of privilege, not incompetence, and observes:

“Many legislatures ... when they came to write the .privilege into law phrased the rule simply as a survival in this special case of the ancient incompetency of the spouses, which the same statutes undertook to abolish or restrict. So it is often provided that spouses are ‘incompetent’ to testify to marital communications. Consequently, the courts frequently overlook this ‘common law’ background of privilege, and permit any party to the action to claim the benefit of the rule by objection. Doubtless counsel often fail to point out that privilege, not incompetency, is the proper classification, and that the distinctive feature of privilege is that it can only be claimed by the holder or beneficiary of the privilege, not by a party as such. The latter principle is clearly correct.”

1 McCormick, supra, § 83, at 335-36.

Jones parrots McCormick’s view, agreeing that statutes sometime “couch privileges in terms of incompetency, a definite misconception.” Spencer A. Card, Jones On Evidence § 21:7, at 760 (6th ed.1972). He adds that, as applied to husband and wife, “this terminology is not surprising as the privilege against disclosure of confidential communications is often regarded as a survival of the common law rules of incompetency arising out of the marriage relation.” Id.7 Jones agrees, however, that “it is not truly such as the privilege rule came into existence in the place of the more drastic rules of complete disqualification.” Id. See also Scon’ N. Stone & Robert K. Taylor, Testimonial Privileges § 5.02, at 5-3 (2d ed. 1993) (“The absolute disqualification on the ground of incompetence, which is retained in only a few states, is based upon archaic notions of the nature of the marital relationship and the role of women.”).⁸ The two preeminent commentators on Maryland evidence law also regard § 9-105 as creating only a privilege. See Lynn McLain, Maryland Evidence § 505.2, at 548-51 (1987 & 1995 Supp.); Joseph F. Murphy, Maryland Evidence Handbook § 903(B), at 377-79 (3d ed.1999).

As Stone and Taylor point out, the notion that spouses are actually “incompetent” to testify to confidential marital communications exists today only in a few States. Most States have either written or rewritten their statutes or adopted rules of evidence to make clear that the preclusion is but a privilege, so judicial construction on that issue is not required. Massachusetts has construed its statute literally. In Commonwealth v. Cronin, 185 Mass. 96, 69 N.E. 1065 (1904), the defendant, in support of his plea of insanity to a charge of murder, offered the testimony of his wife that he suffered from epilepsy and that, two days before the murder, upon recovery from an attack, he told her that he intended to drown himself. The court affirmed the exclusion of that evidence, notwithstanding that it was favorable to and solicited by the defendant, on the ground that it was a private communication and barred by the statute declaring that neither husband nor wife “shall testify as to private conversations with each other.” Id. at 1066. See also Commonwealth v. Spencer, 212 Mass. 438, 99 N.E. 266 (1912).

In Gallagher v. Goldstein, 402 Mass. 457, 524 N.E.2d 53 (1988), a medical malpractice action by a wife who had been rendered mentally incompetent and unable to testify, the husband was precluded from testifying to a conversation occurring prior to the wife’s visit to the defendant doctor in which she related the list of symptoms she intended to discuss with defendant doctor, on the ground that contents of private communications were absolutely excluded. The court construed the Massachusetts statute as rendering private communications between spouses inadmissible “even if both spouses desire the evidence to be admitted.” Id. at 54. In doing so, it recognized that the underpinnings of a disqualification rule had “fallen in extreme disfavor among courts and commentators alike,” that such a rule “may be viewed as a statutory preservation of a remnant of an outdated common law concept” and that “[i]t seems imprudent to prohibit testimony as to a marital conversation when both parties to the conversation want disclosure and the interests of the marital unit would be furthered by disclosure.” Id. at 55. The court nonetheless felt bound by its prior decisions construing the statute strictly.

Maine, Iowa, Ohio, Missouri, and the District of Columbia have taken a different approach. In State v. Benner, 284 A.2d 91, 103 (Me.1971), the court construed a statute providing that the spouse of an accused “is a competent witness except in regard to marital communications.” The court concluded that the exception for marital communications was in the nature of a privilege, not an incompetence, and that the privilege, “when appropriately claimed, functions to protect against the testimonial disclosure by a spouse of specific matters connected with the marital relationship.” Id. at 107. The court reached that conclusion after examining, as we have, the derivation and purpose of the statute, noting particularly the legislative removal of the absolute disqualification imposed by the common law. In State v. Hastings, 466 N.W.2d 697 (Iowa Ct.App. 1990), the statute at issue stated, in relevant part, that neither husband nor wife “can be examined in any case as to any communication made by the one to the other while married.” Id. at 699. The court viewed that statute as a “marital privilege statute,” providing a privilege that could be waived by its holder. In the particular case, the court held that the privilege was not waived by the defendant.

In an early case, Ohio had construed its marital communication statute strictly. See Dick v. Hyer, 94 Ohio St. 351, 114 N.E. 251 (1916) (wife, sued with husband on promissory note, precluded from testifying that she signed note at her husband’s request). In State v. Adamson, 72 Ohio St.3d 431, 650 N.E.2d 875, 877 (1995), however, the court construed the statute, stating, in relevant part, that a husband or wife “shall not testify concerning a communication made by one to the other” as creating a spousal privilege rather than a spousal incompetency. In Johnson v. United States, 616 A.2d 1216, 1219 (D.C.1992), the court construed a District of Columbia statute providing that “a husband or his wife is not competent to testify as to any confidential communications made by one to the other during the marriage” as a privilege. (Emphasis added). See also State v. Bledsoe, 325 S.W.2d 762 (Mo.1959).

The Massachusetts cases illustrate well the consequences of viewing § 9-105 as declaring an incompetence rather than a privilege. The Gallagher court candidly recognized those consequences but apparently felt bound by its prior holdings. We do not have that impediment and will not create it now. As the Pennsylvania statute and the decisions in Maine, Iowa, Ohio, and the District of Columbia indicate, use of the word “competent” in a statute like § 9-105 should not, and sometimes cannot, be taken literally.⁹ To construe § 9-105 as imposing an absolute disqualification would be to ignore the paramount legislative intent to abrogate, rather than preserve, the common law antecedent, to tie our law to a rationale that was of dubious validity in 1628 and that has, in any event, long since been discarded in this and almost every other State, and to create consequences that make utterly no sense. We therefore hold that § 9-105 does not render a spouse “incompetent” in any manner, but simply provides a privilege, exercisable and waivable by the person who made the confidential communication, to preclude the person’s spouse from disclosing that communication through testimony.

Was The Privilege Waived?

Although we have declared § 9-105 as creating a privilege, rather than an incompetence, it is an important privilege, with a solid public policy underpinning, and is not to be found waived except in the clearest of circumstances. In Coleman and Enriquez, we emphasized that confidence was essential to the marital relationship, that that relationship was a proper subject of encouragement by the law, and that “the injury that would inure to it by the disclosure is probably greater than the benefit that would result in the judicial investigation of truth.” Coleman, supra, 281 Md. at 541, 380 A.2d at 52; Enriquez, supra, 327 Md. at 372, 609 A.2d at 346. In both cases, we noted that there were no exceptions to the statute.

The Circuit Court ultimately held Ms. Brown’s disclosure of petitioner’s confession admissible on the authority of Harris, supra, 37 Md.App. 180, 376 A.2d 1144. In that case, the Court of Special Appeals drew* from some language used in Gutridge, supra, 236 Md. 514, 204 A.2d 557, a conclusion that the privilege embodied in § 9-105 was “inapplicable” when the confidential communication “constitutes a threat or crime against the other spouse.” Harris, supra, 37 Md.App. at 184, 376 A.2d at 1146. Relying on its decision in Coleman v. State, 35 Md.App. 208, 370 A.2d 174 (1977), which we reversed in Coleman, supra, 281 Md. 538, 380 A.2d 49, the Harris court concluded that when the communication in question runs contrary to the promotion of marital harmony and tranquility, the basis for the statute no longer prevails and, for that reason, the statute is inapplicable. In overturning the Court of Special Appeals decision in Coleman, we expressly rejected that rationale. Coleman, supra, 281 Md. at 544-45, 380 A.2d at 53-54.

The Court of Special Appeals, in this case, did not rely on Harris, and for good reason. Even to the extent that Harris may be correct in its holding that a communication that, itself, constitutes a crime or a threat is not subject to the privilege, the confession made by petitioner to his wife did not, itself, constitute either a crime or a threat to her and was not necessarily contrary to the promotion of marital harmony. Harris serves as no authority for the admissibility of Ms. Brown’s disclosure. The intermediate appellate court relied instead upon a Colorado case, Cummings v. People, 785 P.2d (Colo.1990) for the proposition that the assertion of a “my spouse did it” defense constitutes a waiver of the privilege. That, as noted, is the position now asserted by the State.

Because Cummings relied, in part, on a California case, People v. Worthington, 38 Cal.App.3d 359, 113 Cal.Rptr. 322 (1974), we shall begin with Worthington. The defendant was convicted of murdering two people—a mother and her daughter—with whom he and his wife had stayed for a time and with whom they had developed an antipathy. On appeal, he complained that the trial court allowed his wife to testify about his confession to her that he had killed the victims. That testimony, he argued, was inadmissible under the California equivalent to § 9-105 (Evidence Code, § 980), affording a spousal privilege to refuse to disclose and prevent another from disclosing a communication made in confidence during the marriage. Before the court allowed the wife to testify, a detective testified that the defendant had informed him that the defendant’s wife killed the two victims and had described in some detail how the killings took place—an account that the appellate court regarded as a mirror image of the wife’s ultimate testimony, but with their roles reversed. The privilege afforded by § 980 was expressly made subject to another statute (Evidence Code. § 912) declaring the privilege waived “if any holder of the privilege, without coercion, has disclosed a significant part of the communication.” Worthington, 38 Cal.App.3d at 365, 113 Cal.Rptr. 322.

The appellate court affirmed the decision to allow the wife’s testimony. It found “incredible” that the “defendant could fail to realize that in disclosing what he claimed the wife had told him, a confession of murder, he was inviting a response from the wife as to her version of the conversation,” adding that “it would be the ultimate irony if one spouse can, under the guise of ‘squealing’ on the other, silence the other’s response to his charges.” Id. at 365, 113 Cal.Rptr. 322 (Emphasis added). Furthermore, the court declared, “there was an abundance of evidence before the trial court upon which it could, as it did, make a finding that defendant had himself disclosed a significant, if twisted, version of his conversation with his spouse.” Id. at 365-66, 113 Cal.Rptr. 322.

In Cummings, the defendant also was convicted of murdering two people. The evidence established that the murders took place in the home where the defendant and his wife lived. He and his wife each claimed that the other committed the murders. Cummings was charged with the murders and his wife was charged as an accessory. During opening statement, defense counsel asserted that the wife was the killer and that the defendant was the accessory—simply “trying to protect a loved one.” Cummings, 785 P.2d at 922. Based on that statement, the court found that he had waived his privilege under Colorado law to preclude adverse testimony by his spouse. The privilege invoked was not the one dealing with confidential communications. Nonetheless, citing Worthing-ton and a number of Colorado decisions finding that the privilege asserted was waivable, the court held that “[b]y accusing his wife of the murders, the defendant invited a response which necessarily could have come only from her.” Id. at 927.

Neither of those cases supports a finding of waiver in this case. The waiver in Worthington was based essentially on a finding that the defendant had himself disclosed a version of the conversation, and he could not then complain when the wife was allowed to give her version of it. Self-disclosure of an otherwise confidential communication is generally regarded as a waiver of the privilege. See 8 Wigmore, supra, § 2340, at 671; McCormick, supra, § 83, at 336; Stone & Taylor, supra, § 5.12, at 5-28. See also State v. Bledsoe, supra, 325 S.W.2d 762, 766 (when defendant testifies to confidential marital communication from wife, no error in allowing wife to testify in rebuttal). Nothing said by petitioner or his attorney prior to Ms. Brown’s testimony could be taken as revealing any part of the conversations testified to by Ms. Brown. Worthington is wholly inapposite.

Cummings, with all due respect to the Colorado court, is not particularly well-reasoned. It begins with a far more general statement, taken from an earlier case, that the holder of the privilege “will not be permitted to ‘absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim.’ ” Id. at 926 (quoting Clark v. District Court, 668 P.2d 3, 8 (Colo.1983)). Clark had nothing to do with the privilege for confidential marital communications. The issue was whether a defendant in a wrongful death action waived his psychiatrist-patient privilege by denying liability, and the court held that he had not done so. The court noted that, when the privilege holder asserts his or her physical or mental condition as the basis of a claim or defense, the person implicitly waives any claim of confidentiality respecting that condition, but held in Clark that the defendant had done nothing to waive his privilege. Apart from Worthington, the other cases cited by the Cummings court all dealt with waivers based either on a failure to object to the evidence or on the person himself (or herself) offering evidence of the communication.

The State makes too large a leap in arguing from these cases the broad proposition that a “my spouse did it” defense, however asserted, suffices to waive the privilege afforded by § 9-105. Depending on the circumstances, a waiver may be found from a failure to object or from a •voluntary self-disclosure of the conversation, but a “my spouse did it” defense itself does not invoke a waiver. In this case, although petitioner did not immediately object to Ms. Brown’s statement on the ground of privilege, neither the Circuit Court nor the Court of Special Appeals found a waiver on that basis. Nor shall we. Petitioner did eventually raise the statutory privilege, which was entertained and ruled upon by the court. Nor, as we have indicated, did petitioner himself disclose any part of the conversation with his wife prior to her testimony. There was no waiver.

JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THAT COURT FOR NEW TRIAL; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.

BELL, C.J., and CATHELL, J., concur.

1 . For ease of sentence structure, we shall occasionally use the term ''incompetent'' in place of the statutory term “not competent.’’ We regard the terms as synonymous.

2 . The report of Bent v. Allot in the English Reports is brief but supports Wigmore's statement. It states: "It is informed that Colston, one of the defendants, examined his own wife as a witness: it is therefore ordered, the plaintant may take a subpoena against her on his behalf; and if Colston will not suffer her to be examined on the plaintant’s party, then her examination on the said Colston's party is suppressed.”

3 . Wigmore had little use for Coke's view. Noting that there is no reference to such a disqualification until Coke's treatise appeared in 1628, he suggests that it may have been Coke’s own creation. As to the validity of the principle, Wigmore states that "[h]e mouthed a few Latin words of medieval scholasticism, and suggested a consideration doubtful in its morality and narrow in its view of human nature.” 8 Wigmore, supra, § 2228, at 214. Coke's invocation of the unity and identity of married persons, echoed later by Matthew Hale, Wigmore regards as "merely appealing] to a fiction.” Id. at 216.

4 . Wigmore ascribes this exception to simple necessity, observing that "[a]nyone could see that an absolute privilege in a husband to close the mouth of the wife in testimony against him would be a vested license to injure her in secret with complete impunity.” 8 Wigmore, supra, § 2239, at 242. How far beyond criminal acts committed against the wife the common law exception extended is not clear. Wigmore notes that ”[i]n orthodox practice, in proceedings involving the custody of children, where the issue depends partly on the husband’s misconduct, the wife's testimony, at least by affidavit, was conceded to be admissible.” Id. at 247-48 (emphasis in original). He observes that no such exception was recognized in divorce actions, however, and that the ability of spouses to provide adverse testimony in such actions derives either from total or partial abrogation of the disqualification or from special statute. Id. at 250. That would not have been a problem in Maryland until after 1851. Prior to then, divorces were granted by the General Assembly, not the courts, by special private bills. See Carl N. Everstine, The General Assembly Of Maryland 1776-1850, at 412-14 (1982).

5 . The disqualification of criminal defendants to testify was repealed in 1898. 61 & 62 Viet. c. 36. The Act made defendants and their spouses competent witnesses, but (1) made the defendant a non-compellable witness, (2) precluded the spouse from testifying except upon application of the defendant, and (3) declared that nothing in the Act made a husband or wife compellable to disclose any communication made by him or her to the other during the marriage.

6 . Trammel dealt principally with the asserted ability of a defendant to preclude any adverse testimony by his or her spouse, which the Supreme Court also regarded as a "privilege,” indeed noting from the historical development that "[t]he rule thus evolved into one of privilege rather than one of absolute disqualification.” Trammel, supra, 445 U.S. at 44, 100 S.Ct. at 909, 63 L.Ed.2d at 191. Its characterization of the exclusion of marital communications as a privilege was part of its discussion of the development of Fed.R.Evid. 501.

7 . An example of how loosely or ambiguously the term “competent” is used in statutes of this kind is the Pennsylvania statute, 42 Pa. Cons.Stat Ann. § 5914 (West 1982), which provides that, in a criminal proceeding, "neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.” (Emphasis added).

8 . Interestingly, Stone and Taylor do not list Maryland as one of the States retaining the absolute disqualification.

9 . There is, indeed, some evidence of a legislative recognition in Maryland that § 9-105 confers only a privilege. In its first reader form, the bill that was enacted as the Domestic Violence Act of 1994 (1994 Md. Laws, ch. 728), would have amended § 9-105 to add an express exception for communications occurring during the commission of a crime by one spouse upon the other. Although that part of the bill was stricken during the legislative process, the Floor Report of the Senate Judicial Proceedings Committee on the bill (Senate Bill 279) characterized § 9-105 as conferring "a privilege to refuse to disclose, and to prevent that spouse from testifying to, the content of those [confidential] communications. ’ ’