People v. Fisher

503 N.W.2d 50, 442 Mich. 560

• Court: Michigan Supreme Court
• Decided: June 30, 1993
• Docket: 92897, (Calendar No. 4)
• Status: Published

Opinions

Griffin, J.

In this criminal appeal, we must decide whether the marital communications privilege provided by MCL 600.2162; MSA 27A.2162 may be invoked in a sentencing proceeding to preclude consideration by the sentencing court of certain extrajudicial statements made by defendant’s estranged wife and set forth in the presentence report. Because defendant’s spouse was not examined as a witness, we conclude that the privilege was not available in the circumstances presented here.

We are required also to determine whether the circuit court properly applied the second edition of the sentencing guidelines when this defendant was last resentenced in light of the fact that he earlier had been sentenced and resentenced for the same crime while the first edition was still in effect. We find no error in the application of the guidelines.

i

During an altercation with defendant Richard Fisher, William Tappert was stabbed with a hunting knife at the home of Mary Fisher, defendant’s estranged wife. Tappert died the next day, and defendant was charged with first-degree murder. MCL 750.316; MSA 28.548.

The prosecutor maintained that the killing was premeditated and motivated by jealousy. Although defendant and his wife were separated, he visited the home almost daily to see his children. The prosecution contended that defendant was disturbed because Tappert, who was Mary Fisher’s boyfriend, had been staying at the house during several of the nights which preceded the altercation.

In testimony at his trial before an Eaton County jury, defendant claimed that Tappert was physically abusing Mary Fisher, and that he was coming to her aid when Tappert was stabbed. According to defendant, the two men engaged in a scuffle, he took out a small hunting knife merely to scare Tappert, and the stabbing was accidental.

The jury rejected defendant’s version of the events, and convicted him of second-degree murder, MCL 750.317; MSA 28.549. Thereafter, he was sentenced by Circuit Judge Richard M. Shuster to forty to sixty years in prison. On appeal in the Court of Appeals, defendant’s conviction was affirmed. However, because the sentence exceeded the then-recommended minimum sentencing guideline range of seven to sixteen years, the case was remanded to the circuit court for resentencing with instructions to provide a more adequate articulation on the record of reasons for departure from the guidelines. 166 Mich App 699; 420 NW2d 858 (1988).

On remand, the circuit judge reread parts of the original sentencing transcript and again sentenced defendant to forty to sixty years. The judge reasoned that when individuals reach the age of sixty they seldom commit violent acts; therefore, by sentencing the twenty-seven-year-old defendant to a minimum of forty years, society would be given some degree of assurance that he would not commit a similar crime. Defendant again appealed in the Court of Appeals, which found the rationale given for the sentence to be "totally inappropriate” and ordered that the defendant be resentenced by a different judge. 176 Mich App 316, 318; 439 NW2d 343 (1989).

Upon return to the circuit court for further proceedings, the matter was assigned to visiting Judge Patrick McCauley, who sentenced defendant to a prison term of twenty-five to fifty years. Judge McCauley made clear that he had considered the recommended minimum of ten to twenty-five years set forth in the revised, or second, edition of the sentencing guidelines, which had not been in effect when defendant was earlier sentenced.¹

Defendant appealed for a third time, and the Court of Appeals once again reversed. This time the panel ruled that the lower court erred in two respects: first, in considering for sentencing purposes certain statements in the presentence investigation report that were attributed to Mary Fisher, and, second, by utilizing the revised, or second, edition of the sentencing guidelines. Once again, the case was remanded for resentencing by yet another judge. 190 Mich App 598; 476 NW2d 762 (1991). After the prosecutor unsuccessfully sought rehearing in the Court of Appeals, this Court granted leave to appeal.²

ii

At the sentencing proceeding conducted by Judge McCauley, defendant challenged the truthfulness of certain statements in the presentence report attributed to Mary Fisher, and he objected on the ground of marital privilege to use of the statements for sentencing purposes. Brief excerpts from the report that include the emphasized challenged statements are:_

[1] While there Rick [defendant] looked into the bedroom area and said to Mary [Fisher], "Is your fuckin boyfriend here? Tell him to come in here so I can stick him a couple of times.”

[2] Bill Tappert fell to the ground and Mary saw that he was bleeding. She started to cry and asked Rick, "Did you stab him?”, to which he replied, ”Fuck yes I stuck him.”

[3] Mary followed Rick outside of the house and Rick told her to tell the police that Tappert had fallen into the knife.

Addressing the issue of marital privilege, the visiting circuit judge noted that defendant and Mary Fisher were no longer married, having divorced during the period between the first and third sentencing proceedings. The court found that the challenged statements implicated only the spousal privilege, and that it was inapplicable because the spousal privilege "terminated at the divorce.”

After holding an evidentiary hearing at which defendant and the police investigator testified, the court concluded that the statements as reported were truthful.³ Thereafter, in explaining its reasons for imposition of the twenty-five to fifty-year sentence, the court left no doubt that each of the challenged statements was taken into account.

Responding to defendant’s third appeal, the Court of Appeals disagreed with the trial court’s disposition of defendant’s claim of statutory spousal privilege. While acknowledging that the spousal privilege (precluding one spouse from testifying against the other) does not survive divorce, the panel emphasized that the communications privilege encompassed within the same statute precludes testimony by one who is, or was, a spouse "with regard to any confidential communication that occurred during the marriage irrespective of a subsequent divorce.” 190 Mich App 603. The panel concluded that at least "the third statement at issue, which was a request by defendant to his estranged wife asking her to lie to the police, was barred by the confidential communications privilege.”⁴ Id.

For reasons other than those articulated by either the trial court or the Court of Appeals, we conclude that the three statements at issue were not precluded from consideration as part of the presentence report by the privilege statute, MCL 600.2162; MSA 27A.2162.

Privileges are governed by the common law, except as modified by statute or court rule. MRE 501. Because there is no court rule governing marital privileges, the statute controls. People v Love, 425 Mich 691, 699; 391 NW2d 738 (1986) (opinion of Cavanagh, J.)._

MCL 600.2162; MSA 27A.2162 provides, in pertinent part:

A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent . . . nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage ....

In People v Hamacher, 432 Mich 157, 161-162; 438 NW2d 43 (1989), this Court distinguished between the spousal privilege and the marital communication privilege:

Section 2162 of the eja provides two distinct privileges. The first, the spousal privilege, is only applicable when the witness and the spouse are married at the time of trial. This privilege bars one spouse from testifying for or against the other without the other’s consent except in (1) actions for divorce, (2) prosecutions for bigamy or for a crime committed against the children of either or both, (3) actions growing out of a personal wrong or injury done by one to the other or the refusal or neglect to furnish the spouse or children with suitable support, (4) cases of desertion or abandonment, and (5) certain cases relating to marriage and title to property.

The second privilege, the communication privilege, bars one spouse from testifying "as to any communications made by one to the other during the marriage” without the consent of the other. The communication privilege applies whether the testimony is sought "during the marriage or after-wards,” as long as the communication occurred during the marriage. Section 2162 of the eja states no exceptions with respect to the communication privilege.[⁵]

Because the spousal privilege is not available except during the marriage, and defendant and Mary Fisher were divorced when Judge McCauley conducted the sentencing proceeding, it is clear that only the applicability of the communications privilege could be at issue. However, the prosecution contends that the marital communication privilege is inapplicable because it is testimonial in nature; since Mary Fisher was not "examined as a witness” either at trial or during the evidentiary hearing, her statements given to the police and written into the presentence report were not subject to the privilege.

The prosecution further argues that the statements, albeit hearsay,⁶ were nonetheless admissible under MRE 1101(b), which provides:

The rules [of evidence] other than those with respect to privileges do not apply in the following situations and proceedings:

(3) . . . Proceedings for extradition or rendition; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise. [Emphasis added.]

On the other hand, defendant contends that even though MRE 1101(b)(3) allows the admission of hearsay evidence at sentencing, the same rule expressly excepts privileged communications from the expansive scope of sentencing information. He argues that the prosecutor should not be able to indirectly introduce privileged evidence that he would be prohibited from educing directly.

The Michigan marital privilege statute does not specifically address situations in which a confidential communication inadvertently or purposefully comes into the hands of a third party. While the scope of the privilege has been interpreted by this Court on numerous prior occasions, the applicability of the statute in this precise context has not been tested before. Indeed, it has been over eighty years since this Court last encountered a question involving the admissibility, through a third person, of a privileged marital communication.

O’Toole v Ohio German Fire Ins Co, 159 Mich 187; 123 NW 795 (1909), was a civil suit involving a claim that the plaintiff wife intentionally burned her barn with the purpose of defrauding the defendant insurance company. The particular issue relevant to the instant case was the admissibility of two incriminating letters made by the wife to, and received by, the husband. The letters inadvertently came into the possession of a third party, who in turn indirectly passed the letters on to the defendant insurance company. The trial court allowed the letters to be received into evidence despite plaintiff’s claim that they constituted privileged communications. Relying more upon common-law doctrine from other jurisdictions than the language of the statute itself,⁷ the Supreme Court affirmed the trial court, holding:

And so it has been held, and, we think, correctly, that where the communication, oral or written, has, without collusion or voluntary disclosure, escaped the custody and control of the parties communicating or the custody or control of their agents or representatives, it is not privileged. [O’Toole, supra, p 193.][⁸]

In reviewing other authorities, the O’Toole Court noted that "[t]he cases are not numerous; the rulings are not harmonious.” Id. This observation still holds true today. Two annotations on the general topic of the interception by third parties of privileged marital communications reflect a wide disparity in the case law in other jurisdictions. See Applicability of marital privilege to written communications between spouses inadvertently obtained by third person, 32 ALR4th 1177, and Spouse’s betrayal or connivance as extending marital communications privilege to testimony of third person, 3 ALR4th 1104. To some courts, the mere fact that a marital communication came within the possession or knowledge of a third person is sufficient to render it admissible in evidence. Other courts have held that the admissibility of a third person’s testimony concerning a confidential marital communication depends on whether access to the communication was gained with or without the connivance of the spouse. Yet other courts have held that confidential marital communications are absolutely privileged and never admissible, no matter how obtained. See annotations, id., and cases cited therein.

Two cases from other jurisdictions have addressed the unusual situation presented in the instant case. In United States v Burton, 631 F2d 280 (CA 4, 1980), the defendant contended on appeal that it was improper for the court, in determining the appropriate sentence, to consider a presentence report containing alleged incriminating privileged marital communications. The appellate court found the defendant’s contentions to be without merit:

No marital privilege "prevents the government from enlisting one spouse to give information concerning the other or to aid in the other’s apprehension. It is only the spouse’s testimony in the courtroom that is prohibited.” Trammel v United States [445 US 40, 52, n 12; 100 S Ct 906; 63 L Ed 2d 186 (1980)].

The purpose of a probation report, which is not made available to the court until after conviction, is to give the sentencing judge the fullest possible information concerning the defendant’s life and characteristics so that he may be able to impose an appropriate sentence. See Williams v New York [337 US 241, 250; 69 S Ct 1079; 93 L Ed 1337; 18 USC 3577 (1949)]. There was nothing unusual or improper in the probation officer interviewing defendant’s wife, and in obtaining from her pertinent information concerning the defendant’s background, character, and conduct, and in including in the probation report the information supplied by defendant’s wife to the government agents. In so doing, there was no violation of any privileged marital communication. The court was clearly entitled to consider the presentence report, including such information, in its determination of an appropriate sentence. [Burton, supra, pp 281-282.]

In State v Minor, 188 Neb 23; 195 NW2d 155 (1972), the court held that a judge at the time of sentencing could consider hearsay statements of the defendant’s wife that were in the presentence report. Noting that the modern trend is to restrict or abolish the marital privilege, the court stated:

We construe a wife’s incompetency in criminal proceedings against her husband to be limited to testimonial utterances. She is competent to supply information for a presentence report.

In State v Rose, 183 Neb 809 [811], 164 NW2d 646 [1969], we said: "It is a long accepted practice in this state that before sentencing a defendant after conviction a trial judge has a broad discretion in the source and type of evidence he may use to assist him in determining the kind and extent of punishment to be imposed within the limits fixed by statute. ... A presentence investigation has nothing to do with the issue of guilt. The rules governing due process with respect to the admissibility of evidence are not the same in a presentence hearing as in a trial in which guilt or innocence is the issue. The latitude allowing a sentencing judge at a presentence hearing to determine the nature and length of punishment, other than in recidivist cases, is almost without limitation as long as it is relevant to the issue.” [Minor, supra, p 27.]

Our determination in the instant case, however, ultimately turns upon an interpretation of Michigan law. While the statutory language governing the marital communications privilege has not undergone significant substantive changes in the eighty years since O’Toole was decided, society certainly has, accompanied by an increasing recognition that the broad cloak of the marital privilege is no longer justified under certain circumstances. The undisputed modern trend is toward a restrictive, rather than expansive, interpretation of the privilege. As Justice Boyle noted in her dissenting opinion in People v Hamacher, supra, pp 186-187,

The confidential communications privilege is said to inspire marital confidences. McCormick, Evidence (3d ed), § 86, p 201. Over time, case law has blurred the justifications, and it is sometimes observed that the validity of both privileges rests on the utilitarian ground of promoting marital harmony. . . .

Criticism of both marital privileges centers on the fact that they conflict with the jurisprudential objective of advancing the truth-finding function. As Professor McCormick observes, "while the danger of injustice from suppression of relevant proof is clear and certain, the probable benefits of the rule of privilege in encouraging marital confidences and wedded harmony is at. best doubtful and marginal.” McCormick, supra, § 86, p 202.

The principle that privileges should be narrowly defined and the exceptions to them broadly construed is not new. The O’Toole Court qualified its holding with the admonition:

The privilege is in derogation of the general rule that all persons may be compelled to testify concerning facts inquired about in courts of justice. It should be made effective, but ought not to be extended by the courts to cases where there has been no injury to the relation of the parties by the betrayal of the confidence reposed. [Id., p 193.]

More recently, in People v Love, supra, pp 700, 701 (opinion of Cavanagh, J.), this Court reiterated the fundamental rule:

"Testimonial exclusionary rules and privileges contravene the fundamental principle that 'the public . . . has a right to every man’s evidence.’ As such, they must be strictly construed and accepted 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ ” [Quoting from Trammel v United States, 445 US 40, 50; 100 S Ct 906; 63 L Ed 2d 186 (1980) (citations omitted). See also People v Hamacher, supra, p 188 (dissenting opinion of Boyle, J.).]

With these principles in mind and our primary focus on the language used in the Michigan statuté, we conclude that MCL 600.2162; MSA 27A.2162, does not apply in the circumstances presented. The statute provides that neither spouse may "be examined” with respect to any communication made by one to the other during the marriage. This phrase, "be examined,” connotes a narrow testimonial privilege only — a spouse’s privilege against being questioned as a sworn witness about the described communications. In other words, the spouse must testify for the privilege to apply. The introduction of the marital communication through other means is not precluded.

In the instant case, the marital communications privilege is inapplicable because Mary Fisher was not called to testify either at trial or at the evidentiary hearing conducted by Judge McCauley.⁹ The three contested statements made by her to the police detective were set forth in an affidavit to obtain a search warrant. Later, the same statements were included in the presentence report. Although the detective testified concerning the statements made to him, which became part of the presentence report, at no time was Mary Fisher examined as a witness against her husband.¹⁰

Because we hold that the marital communications privilege is a testimonial privilege that is limited to those situations in which a spouse is being "examined” in court proceedings with regard to the communications, the three hearsay statements that in this case were written into the presentence report were properly considered by the sentencing court. MRE 1101(h)(3), which provides that the Rules of Evidence do not apply to sentencing proceedings, certainly contemplates that hearsay that does not fall within the protection of an established privilege, may be included in presentence reports.¹¹ Indeed, it is recognized by Michigan courts that the evidentiary rules governing trial procedure and sentencing are different:

Historically, separate evidentiary rules have been fashioned for the trial and sentencing procedures. Evidence admitted at trial to determine whether the defendant is guilty of a specific criminal conduct is largely limited by evidentiary rules to first-hand or verifiable testimony directly related to the offense charged. But under Michigan’s indeterminate sentencing law, MCL 769.8; MSA 28.1080; the responsibility for setting the limits of sentence between the statutory minimum and maximum rests squarely on the sentencing judge. At the sentencing hearing, after the issue of guilt has been decided, full information regarding the defendant’s character, background, and criminal record have generally been deemed admissible under concepts of individualizing punishment. The presentence report, mandatory for felony cases in Michigan since 1931, allows the court to make an informed judgment as to possibilities for rehabilitation, and to effectively utilize sentencing alternatives. [People v Lee, 391 Mich 618, 634-635; 218 NW2d 655 (1974). See also Williams v New York, supra; People v Potrafka, 140 Mich App 749, 751; 366 NW2d 35 (1985); People v Burton, 44 Mich App 732; 205 NW2d 873 (1973), lv den 389 Mich 795 (1973).]

We realize that our holding today effectively overrules O’Toole and other cited cases to the extent that they can be read as recognizing a broader privilege. However, our ruling by no means represents an abrogation of the marital communication privilege. The dissent of the Chief Justice asserts that our holding would eliminate the statute’s consent requirement, and he refers for an example to a spouse’s divulgence of confidential marital communications in the course of intense police interrogation. According to the dissent, "[e]ven if the spouse refuses to testify in court regarding the communications, the police can testify because the majority holds that if the spouse does not testify, the privilege does not apply.” (Cavanagh, C.J., post, p 589.) Of course, the flaw in this reasoning is that use of such third-party testimony in a nonsentencing setting would be governed by the rule against hearsay set forth in MRE 802. See, e.g., People v Williams, 181 Mich App 551; 450 NW2d 85 (1989); People v Burton, 177 Mich App 358, 362; 441 NW2d 87 (1989); People v DeWitt, 173 Mich App 261; 433 NW2d 325 (1988).

Moreover, as Professor McCormick has posited,

The argument traditionally advanced in support of the marital communications privilege is that the privilege is needed to encourage marital confidences, which confidences in turn promote harmony between husband and wife. This argument . . . rests upon certain assumptions concerning the knowledge and psychology of married persons. Thus it must be assumed that spouses will know of the privilege and take its protection into account in determining to make marital confidences, or at least, which is not the same thing, that they would come to know of the absence of the privilege if it were withdrawn and be, as a result, less confiding than at present.

In the absence of any empirical validation, these propositions have appeared highly suspect to many, though not all, commentators. Thus the most convincing answer to the argument of policy appears to be that the contingency of courtroom disclosure would almost never (even if the privilege did not exist) be in the minds of the parties in considering how far they should go in their secret conversations. What encourages them to fullest frankness is not the assurance of courtroom privilege, but the trust they place in the loyalty and discretion of each other. If the secrets are not told outside the courtroom there will be little danger of their being elicited in court. In the lives of most people appearance in court as a party or a witness is an exceedingly rare and unusual event, and the anticipation of it is not one of those factors which materially influence in daily life the degree of fullness of marital disclosures. [1 McCormick, Evidence (4th ed), § 86, pp 309-310.]

Of course, it is the prerogative of the Legislature, if it chooses, to expand the marital communications privilege beyond its testimonial nature. However, in the absence of such direction, we follow the mandate of strict construction, particularly where, as here, ascertainment of the truth transcends the need to exclude relevant evidence. Accordingly, we conclude that the decision of the Court of Appeals on this issue must be reversed.

We now consider whether Judge McCauley used the appropriate guidelines when he sentenced defendant.

hi

Administrative Order No. 1988-4 requires the circuit courts to apply the second edition of the sentencing guidelines when sentencing a defendant after October 1, 1988:

The Sentencing Guidelines Advisory Committee is authorized to issue the second edition of the sentencing guidelines, to be effective October 1, 1988. Until further order of the Court, every judge of the circuit court and of the Recorder’s Court for the City of Detroit must thereafter use the second edition of the sentencing guidelines when imposing a sentence for an offense that is included in the guidelines.

Defendant contends that the retroactive application of the revised sentencing guidelines under the present circumstances was a violation of the proscription against ex post facto laws in the state and federal constitutions,¹² his constitutional right to due process,¹³ and his right to appeal.¹⁴ Defendant reasons that since he was resentenced twice because of court error, it is unfair to subject him to a harsher recommended sentence. He explains that the revised guidelines were not applicable when he was first sentenced. Under the original guidelines, the recommended minimum sentence range was seven to sixteen years; however, under the new guidelines, the recommended minimum sentence range is ten to twenty-five years.

Defendant concedes that our decision in People v Potts, 436 Mich 295; 461 NW2d 647 (1990), which was decided during the course of defendant’s appeals, obviates the ex post facto issue. In Potts, the defendant challenged application of the revised sentencing guidelines to her May 1988 offense. Noting that use of the revised edition is tied to the date that sentences are imposed (rather than the date that offenses are committed) and that the Michigan sentencing guidelines do not establish a presumptive sentencing range,¹⁵ this Court held that constitutional ex post facto requirements were not violated:

Sentencing judges in this state are required by this Court’s administrative orders to consider the minimum range recommended by the guidelines, but are not bound by it. As the Court of Appeals observed, the guidelines are but "a tool to assist the sentencing judge in the exercise of discretion.” 181 Mich App 313 [448 NW2d 820 (1989)].

It cannot be said, therefore, that the Michigan guidelines convey substantive rights. Since there are no presumptive sentences, the guidelines as revised did not increase the punishment for the defendant’s crime. Neither before nor after the revisions did the guidelines limit the discretion afforded the sentencing judge in this case by the indeterminate sentencing act. MCL 769.8; MSA 28.1080. There is no violation of the ex post facto provision where the enactment at issue alters modes of procedure rather than substantial personal rights. [Potts, supra, p 303.]

Given our conclusion in Potts, that the revised guidelines convey no substantive rights, it logically follows that application of the revised nonbinding sentencing guidelines to a defendant who has appealed his sentence neither chills his right to appeal nor infringes upon his right to due process. The revised guidelines did not increase defendant’s punishment in this case; the only change was in what was deemed appropriate punishment pursuant to the guidelines. Moreover, the revisions did not limit the discretion afforded the sentencing judge. Id., p 303.

Practically speaking, this defendant has no cause to complain. His first two sentences, being forty to sixty years, exceeded the original guidelines recommendation. The twenty-five-year minimum imposed when he was sentenced a third time under the revised guidelines is actually fifteen years less than the forty-year minimum sentence originally imposed.¹⁶ Furthermore, the twenty-five-year minimum sentence is within the revised guidelines and is therefore presumptively valid. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). We find no basis in the record to conclude that the defendant should be resentenced yet another time.¹⁷

IV

For the reasons set forth, we reverse the decision of the Court of Appeals.

Brickley, Boyle, Riley, and Mallett, JJ., concurred with Griffin, J.

1 The second edition of the sentencing guidelines became effective October 1, 1988. Administrative Order No. 1988-4. 430 Mich ci (1988).

2 439 Mich 995 (1992).

3 At the hearing, defendant testified and contested the truthfulness of the three statements. While he admitted using profanity in telling Tappert to leave, he denied making the second statement. With regard to the third statement, defendant testified that he was explaining to Mary Fisher how Tappert was wounded, not asking her to lie for him.

On the other hand, a police detective, who interviewed Mary Fisher at the crime scene and obtained her statements, testified for the prosecution regarding the accuracy of the statements contained in the report.

4 The Court of Appeals did not consider the applicability of the marital privilege statute to the second statement, having found that defendant conceded it was made in the presence of a third party, the son of Mary Fisher. 190 Mich 601.

Further, the appeals panel did not consider the statute’s applicability to the first statement. Instead, it stated that "[d]uring the sentencing procedures, the sentencing court ruled that ... it would not consider the first statement,” 190 Mich App 603, and then found sentencing error in light of the "failure to strike from the presentence report [the] challenged information . . . .” Id. at 604. Although we agree that the mandate of MCR 6.425(D)(3)(a) should be observed, any error in this regard was harmless in light of an express statement on the record by the trial judge that the information was not considered in passing sentence. Under the circumstances, this Court elects to consider the statute’s applicability to all three of the challenged statements.

5 In People v Vermeulen, 432 Mich 32, 37-38; 438 NW2d 36 (1989), this Court further explained:

Unless and until the statute is amended or a court rule superseding the statute is adopted, the trial courts may not inquire into the viability of the marriage. The communication is barred if it was made during the marriage. We thus adhere to this Court’s recent statement in People v Hamacher, 428 Mich 884; 402 NW2d 484 (1987), where this Court observed that the statute "contains no exception to the privilege regarding communications between a husband and wife where the husband and wife are separated or are in the process of obtaining a divorce.”

6 See MRE 801(c), 802.

7 The statute then applicable in O’Toole provided, "nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage . . . 1897 CL 10213.

8 See also People v Dunnigan, 163 Mich 349; 128 NW 180 (1910); cf., People v Salisbury, 218 Mich 529; 188 NW 340 (1922) (in a prosecution for attempted rape, the action of the prosecutor in calling the defendant’s attention to a paper containing a statement made by his wife and asking him if he did not make the admissions contained in it to her was error under the privilege statute, because the prosecutor’s action was an attempt to get before the jury in an indirect way testimony made incompetent by the statute); People v Bowen, 165 Mich 231; 130 NW 706 (1911).

9 We are not called upon in this case to decide whether the statutory privilege applies when a spouse testifies at a sentencing hearing.

10 Our interpretation of the statute as creating only a testimonial privilege is supported by the separate opinion of Justice Levin in People v Hamacher, supra, p 177, who in the context of a different aspect of the marital privilege, stated:

Section 2162 of the Revised Judicature Act does not purport to bar a spouse from disclosing a confidential communication. Hamacher’s wife, without violating § 2162, related the statement she attributed to her husband to social service workers, police officers, the prosecutor, and could have done so to newspaper and other reporters. She could indeed have gone on the nightly news and made a full statement of the confidential communication without violating § 2162. The "secret” would then no longer have been secret and "never again a wholly private matter.” Nevertheless, there can be no doubt that despite the wide communication to the world at large of the "secret,” Hamacher’s wife could not, consistent with § 2162, "be examined” in court with regard to the communication.

Justice Levin concluded that the marital privilege statute precludes only testimony of the spouse:

The courts have no basis for declaring that the statutory purpose in 1861 was to protect the secrecy of the communication when the statute itself clearly does not purport to do so. There is no basis for concluding in 1989 — over one hundred twenty-five years after enactment — that the legislative purpose in 1861 was other than the literally stated purpose of precluding the spouse from "be[ing] examined” in court. [Id., pp 179-180.]

Justice Levin, in his dissenting opinion in the case at bar, now withdraws from his own obiter dictum; we nonetheless find his observations to be cogent under the present circumstances.

11 [T]here are no formal limitations on the contents of the presentence report, but there are limitations dictated by due process.

We do not believe it would be a wise policy to restrict the sentencing judge to the information admissible in open court alone. [People v Lee, supra, pp 636, 639. See also People v Books, 95 Mich App 500, 503-504; 291 NW2d 94 (1980).]

12 Const 1963, art 1, § 10, provides:

No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.

US Const, art I, § 9, cl 3 provides:

No Bill of Attainder or ex post facto Law shall be passed.

US Const, art I, § 10, cl 1 provides:

No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

13 Const 1963, art 1, § 17, provides, in pertinent part:

No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.

14 Const 1963, art 1, § 20 provides, in pertinent part:

In every criminal prosecution, the accused shall have the right ... to have an appeal as a matter of right; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.

15 Judges are permitted to depart from the sentencing guidelines, and are required merely to explain their reasons for doing so. Further, all sentences are subject to appellate review. [Id., p 302. Emphasis added.]

16 At the final resentencing, the trial court stated on the record that if an appellate court later determined that the first edition of the guidelines was applicable, he nevertheless found the seven to sixteen year recommendation inadequate in light of the aggravating circumstances of the case and, accordingly, he would depart from that recommendation in any event.

17 We likewise find without merit defendant’s claim that the last sentencing judge, in referring to defendant’s first statement to Mary Fisher ("[tjell him to come in here so I can stick him a couple of times,” see ante, p 566) as "almost premeditated talk,” erroneously sentenced him on a charge for which he was acquitted — first-degree murder. The court also described the crime as "intentional,” "gross,” and "not an accidental matter.” All these descriptions fall within the accepted definition of second-degree murder, People v Dykhouse, 418 Mich 488, 508-509; 345 NW2d 150 (1984), and by no means indicate that the court improperly considered the offense for which he was sentencing the defendant to be first-degree murder,