State v. Bleeker

327 N.W.2d 728, 1982 Iowa Sup. LEXIS 1645
CourtSupreme Court of Iowa
DecidedDecember 22, 1982
Docket68163
StatusPublished
Cited by1 cases

This text of 327 N.W.2d 728 (State v. Bleeker) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bleeker, 327 N.W.2d 728, 1982 Iowa Sup. LEXIS 1645 (iowa 1982).

Opinions

HARRIS, Justice.

This appeal turns on an interpretation of Iowa Code § 622.7 (1981), our marital testimonial privilege statute. According to the jury verdict defendant viciously attacked Kenneth Zea with a wooden mallet. Zea, who was seriously injured by the attack, had been living as man and wife with defendant’s estranged wife. The conviction was obtained in part by the wife’s testimony. Following his conviction of willful injury (Iowa Code § 708.4 (1981)) defendant moved for a new trial and persuaded the trial court to reverse a trial ruling which allowed Mrs. Bleeker’s testimony over defendant’s privilege objection. A new trial was granted. • On the State’s appeal we conclude that the evidence was properly admitted. We reverse the order granting a new trial and remand.

[729]*729Defendant and Mrs. Bleeker were married in June of 1963 and had five children. They separated some sixteen months prior to the assault. After defendant moved out of the house occupied by Mrs. Bleeker and the children he filed petition for dissolution of the marriage and she filed a cross-petition. Defendant and Mrs. Bleeker then agreed he would return to the home only on Sundays to visit the children and no further action was taken in the dissolution proceeding. The parties, accordingly, remained legally married at the time of defendant’s trial.

Kenneth Zea, the victim, took up residence with Mrs. Bleeker and the children after defendant moved out. Mrs. Bleeker had recently given birth to Zea’s son. Defendant was well aware of Zea’s residence and had seen him during the Sunday visits. On at least one occasion the two had argued.

The assault took place early one morning in the bedroom occupied by Zea and Mrs. Bleeker. Mrs. Bleeker testified, over defendant’s privilege objection, that she awoke and saw defendant standing in the doorway of the bedroom. The doors to the house were locked so defendant apparently entered through a window. Mrs. Bleeker testified defendant walked over to the bed and struck the sleeping Zea on the head with a wooden mallet. After witnessing the first blow she tried to aid Zea and attempted to wrestle the mallet from defendant. She was unable to do so and defendant continued to strike Zea. During her struggle Mrs. Bleeker was pushed out of the way and at least once was pushed down. She sustained several bruises on her hip. The defendant’s attack was directed at Zea though defendant did resist Mrs. Bleeker’s efforts to wrestle the mallet from him.

Mrs. Bleeker twice attempted to phone the police but both times defendant ripped the phone cords from the wall. She eventually ran to a neighbor’s house to call police. The children heard the struggle. Two children, aged 14 and 16, testified at defendant’s trial. Although they did not witness the actual striking of Zea they saw their father in the bedroom that morning, heard their mother scream for help, and watched their father pull the phone wires from the wall. A woman renting a basement room from Mrs. Bleeker also heard the commotion, went upstairs, and saw defendant leaving the house with a mallet.

Zea suffered a depressed skull fracture and the right side of his face is paralyzed. He is extremely confused and has suffered brain damage resulting in a severe decrease in memory, attention span, judgment, and new learning ability. He did not testify at defendant’s trial.

I.The statute in question provides:

Neither the husband nor wife shall in any case be a witness against the other, except:
1. In a criminal prosecution for a crime committed one against the other, or
2. In a civil action or proceeding one against the other, or
3. In a civil action by one against a third party for alienating the affections of the other, or
4. In any civil action brought by a judgment creditor against either the husband or the wife, to set aside a conveyance of property from one to the' other on the ground of want of consideration or fraud, and to subject the same to the payment of his judgment.

The statute precludes adverse spousal testimony with four exceptions. The first of the exceptions, for crimes committed against the other, is at issue here.1

The spouse’s testimonial privilege has been recognized by the common law for about four centuries. Lempert, A Right to Every Woman’s Evidence, 66 Iowa L.Rev. [730]*730725, 726 (1981). It has been roundly criticized for much of the last two. Id. at 731. See Trammel v. United States, 445 U.S. 40, 44-45, 100 S.Ct. 906, 909, 63 L.Ed.2d 186, 191 (1980) (citing authorities). The privilege has been called “the merest anachronism in legal theory and an indefensible obstruction to truth in practice.” 8 J. Wigmore, Evidence, § 2228, at 221 (McNaughton rev. 1961).

In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), the United States Supreme Court reviewed and upheld the federal common law privilege. In Trammel v. United States, 445 U.S. at 53, 100 S.Ct. at 913, 63 L.Ed.2d at 196, the supreme court again reviewed and this time modified it so as to allow only the witness spouse to invoke its protection. Under Trammel the witness-spouse can no longer be compelled or foreclosed from testifying. The court said “[t]his modification . .. furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs.” Id. at 53, 100 S.Ct. at 913, 63 L.Ed.2d at 196.

The Trammel opinion noted that Iowa was one of only eight states whose statutes provide that one’s spouse is incompetent to testify against the other in a criminal proceeding. Sixteen states vest the privilege in both spouses or in the defendant-spouse alone. Nine states allow only the witness-spouse to assert the privilege. The remaining seventeen states have abolished the privilege in criminal cases. See 45 U.S. at 48 n. 9, 100 S.Ct. at 911 n. 9, 63 L.Ed.2d at 193 n. 9. The trend among the states is toward abolishing or severely limiting the privilege. Id. at 48-50, 100 S.Ct. at 911-912, 63 L.Ed.2d at 193-94; Vance v. Rice, 524 F.Supp. 1297, 1300-01 (S.D.Iowa 1981) (state’s interest in having its courts do justice prevails over competing interest of defendant to marry a material witness).

Our cases interpreting Iowa’s codification of the privilege have generally, though not enthusiastically, yielded to the literal thrust of the statute. The tension between the statute and the need for the evidence it excludes has constantly tightened the privilege’s scope. See State v. Farber, 314 N.W.2d 365, 367 (Iowa 1982) (a proceeding on a search warrant application is not a “case” within the meaning of § 622.7 and hence a husband’s incriminating information could form the basis for a warrant to search his wife’s apartment); State v. Henderson, 268 N.W.2d 173

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State v. Bleeker
327 N.W.2d 728 (Supreme Court of Iowa, 1982)

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327 N.W.2d 728, 1982 Iowa Sup. LEXIS 1645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bleeker-iowa-1982.