Humphrey v. State

District Court of Appeal of Florida

Humphrey v. State

979 So. 2d 283, 2008 Fla. App. LEXIS 2439, 2008 WL 465583

CourtDistrict Court of Appeal of Florida

DecidedFebruary 22, 2008

DocketNo. 2D06-1093

StatusPublished

This text of 979 So. 2d 283 (Humphrey v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Humphrey v. State, 979 So. 2d 283, 2008 Fla. App. LEXIS 2439, 2008 WL 465583 (Fla. Ct. App. 2008).

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Opinion

VILLANTI, Judge.

In this appeal from his conviction for murder, Timothy L. Humphrey challenges, inter aha, the trial court’s denial of his nondispositive motion to suppress evidence. We affirm on all grounds but write to address one of the issues raised by Humphrey because it appears to be an issue of first impression in Florida dealing with the applicability of the husband-wife privilege to cellular telephone calls.

At trial, the State sought to introduce records obtained from Humphrey’s cellular telephone provider. The records were part of the telephone company’s billing system. On July 5-6, 2008, the evening of the murder,¹ Humphrey and Ashley, his new wife,² made numerous cellular telephone calls to each other. The records which the State sought to introduce at trial reflected the number of calls between Ashley’s and Humphrey’s cellular telephones on the night of the murder, the times of the calls, as well as the duration of the calls and the relative physical location³ of Ashley’s and Humphrey’s cellular telephones at the time of the calls. The records placed Ashley’s cellular telephone near the location of the victim’s workplace just hours before the murder and near the murder scene around the time of the murder. The records did not reflect the actual substance of the cellular telephone conversations between Ashley and Humphrey.

Humphrey filed a motion to suppress introduction of the cellular telephone records, arguing that the records were protected from disclosure by the husband-wife privilege, section 90.504, Florida Statutes (2003). After a hearing, the trial court denied Humphrey’s motion, finding that the records produced by the telephone company did not fall within the marital privilege. The case proceeded to trial before a jury, Humphrey was found guilty of murder in the first degree, and he was sentenced to life in prison. He challenges the trial court’s denial of his motion to suppress. We affirm the trial court’s order.

Section 90.504(1) provides:

[285]*285A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

There is nothing inherently privileged about the mere occurrence of a cellular transmission between spouses — this communicates no substance of what was said by either spouse. The husband-wife privilege does not protect testimony as to the fact that a communication between husband and wife took place; only the substance of the communication is protected. See Kerlin v. State, 852 So.2d 45, 52 (Fla.1977). Therefore records obtained from a telephone company, which simply reflect the time, date, length, and location of a telephone call, are not communications falling within the purview of the husband-wife privilege. See, e.g., Thurman v. Commonwealth, 975 S.W.2d 888, 897 (Ky.1998) (holding that telephone records showing that a telephone call had been made between spouses did not implicate the spousal privilege where the content of the conversation was not revealed). Thus the trial court correctly denied Humphrey’s motion to suppress evidence of the cellular telephone records, as these records did not involve the husband-wife privilege.

Affirmed.

DAVIS and LaROSE, JJ., Concur.

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VILLANTI, Judge.

In this appeal from his conviction for murder, Timothy L. Humphrey challenges, inter aha, the trial court’s denial of his nondispositive motion to suppress evidence. We affirm on all grounds but write to address one of the issues raised by Humphrey because it appears to be an issue of first impression in Florida dealing with the applicability of the husband-wife privilege to cellular telephone calls.

At trial, the State sought to introduce records obtained from Humphrey’s cellular telephone provider. The records were part of the telephone company’s billing system. On July 5-6, 2008, the evening of the murder,¹ Humphrey and Ashley, his new wife,² made numerous cellular telephone calls to each other. The records which the State sought to introduce at trial reflected the number of calls between Ashley’s and Humphrey’s cellular telephones on the night of the murder, the times of the calls, as well as the duration of the calls and the relative physical location³ of Ashley’s and Humphrey’s cellular telephones at the time of the calls. The records placed Ashley’s cellular telephone near the location of the victim’s workplace just hours before the murder and near the murder scene around the time of the murder. The records did not reflect the actual substance of the cellular telephone conversations between Ashley and Humphrey.

Humphrey filed a motion to suppress introduction of the cellular telephone records, arguing that the records were protected from disclosure by the husband-wife privilege, section 90.504, Florida Statutes (2003). After a hearing, the trial court denied Humphrey’s motion, finding that the records produced by the telephone company did not fall within the marital privilege. The case proceeded to trial before a jury, Humphrey was found guilty of murder in the first degree, and he was sentenced to life in prison. He challenges the trial court’s denial of his motion to suppress. We affirm the trial court’s order.

Section 90.504(1) provides:

[285]*285A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

There is nothing inherently privileged about the mere occurrence of a cellular transmission between spouses — this communicates no substance of what was said by either spouse. The husband-wife privilege does not protect testimony as to the fact that a communication between husband and wife took place; only the substance of the communication is protected. See Kerlin v. State, 852 So.2d 45, 52 (Fla.1977). Therefore records obtained from a telephone company, which simply reflect the time, date, length, and location of a telephone call, are not communications falling within the purview of the husband-wife privilege. See, e.g., Thurman v. Commonwealth, 975 S.W.2d 888, 897 (Ky.1998) (holding that telephone records showing that a telephone call had been made between spouses did not implicate the spousal privilege where the content of the conversation was not revealed). Thus the trial court correctly denied Humphrey’s motion to suppress evidence of the cellular telephone records, as these records did not involve the husband-wife privilege.

Affirmed.

DAVIS and LaROSE, JJ., Concur.

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979 So. 2d 283, 2008 Fla. App. LEXIS 2439, 2008 WL 465583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/humphrey-v-state-fladistctapp-2008.

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