State v. Heistand

708 S.W.2d 125, 1986 Mo. LEXIS 276

• Court: Supreme Court of Missouri
• Decided: April 15, 1986
• Docket: 67338
• Status: Published

Opinions

BLACKMAR, Judge.

The defendant was convicted of first degree robbery, § 569.020, RSMo 1978, and second degree assault, § 565.060, RSMo 1978, receiving consecutive sentences of life imprisonment and 10 years as a persistent offender.

The case is here at the request of all of the judges of the Missouri Court of Appeals, Southern District, because a letter from the defendant to his wife was received in evidence, over the objection that it was a privileged communication. They ask us to take the case before opinion to resolve this issue. We have agreed to do so, and now retransfer the case by reason of our conclusion that the marital privilege does not render the letter inadmissible.

The defendant’s wife did not testify. She had her own legal involvements, and turned the letter over to a probation officer in Arizona. A handwriting expert testified that it is in the defendant’s handwriting. We quote the important parts of the letter, as follows:¹

August 3

Hi Missy

How are you baby? i hope just fine. Im doing alright thanks to you & nobody but you. ... I can beat this armed robbery if Jack will say i was working on some equipment during the evenings of the 1st wk of January 1981, especially Jan 5th & 6th from 5 pm to 9:00 pm; Call him & talk to him for me, tell him we’ll pay him everything i owe him. try to get him to be my alibi, tell him Im facing 2 life sentences from something that happened in 81, if you cant talk any sence into him then say well if you wont help him just because of me fucking up that roller, it was an accident, & I could of done lotz better but Danny & everyone else fucked me up by not working etc.

Tammy i think you can get Jack to help me, all hes got to say is i worked, also he was there to lock up shop everynight & he was there when Candy picked me up at 900 pm, if Jack wont do this for me just tell him, that if he dont help me that i got goods on him, ...

* * * * * *

Love always

Your loving husband

Kenny Heistand

Bum this letter

The letter clearly suggests that the defendant’s wife should procure one “Jack” to commit perjury at the defendant’s trial, so as to provide an alibi. Subornation of perjury is a felony both in Missouri² and in Arizona.³ The defendant also enlists his wife as a co-conspirator in the subornation enterprise. We believe that, as a matter of public policy, the husband-wife privilege should not apply to communications relating to contemplated future crime. An analogy is found in holdings that the attorney-client privilege does not so extend.⁴ The public interest in preventing crime far outweighs the possible harm to the marital relationship.

The dissent points out that the marital privilege emanates from a statute, § 546.-260, RSMo 1978, there quoted, and argues that this statute should be subject only to such exceptions as the legislature chooses to enact. The courts; however, have not applied this statute and its civil counterpart, § 491.020, RSMo 1978, in absolute terms, but rather have created a number of exceptions based on good cause and public policy, in the conviction that the legislature did not intend absolute reading.⁵ The most recent case is T.C.H. v. K.M.H., 693 S.W.2d 802 (Mo. banc 1985), holding that one spouse may testify as to statements by the other which have a bearing on fitness to have custody of children. The attorney-client privilege is also codified in Missouri, § 491.060, RSMo 1978, but our courts recognize the exception discussed in footnote 4. A similar exception should be recognized here.⁶

There is another reason why the privilege does not apply. The defendant did not intend for his wife to preserve the information communicated in confidence. He wanted her to make it known to Jack, and to solicit his activity. The privilege is designed to cover only subject matter which is intended to remain within the marital community. Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 361, 98 L.Ed. (1954). Inasmuch as the portions of the letter received in evidence contain no confidences, the direction to burn the letter does not stand in the way of admissibility.

It is not necessary to resolve the factual issue as to whether the communication was mailed by the defendant from a jail, so that he could reasonably expect that it would be opened and read by a censor. Nor do we have to consider the tangential questions posed in the dissent, such as whether the recipient spouse may deprive the sending spouse of the privilege by revealing a confidential communication to a third person.

The case is retransferred to the Court of Appeals, Southern District, for further proceedings consistent with this opinion.

HIGGINS, C.J., BILLINGS and REND-LEN, JJ., and MANFORD, Special Judge, concur. DONNELLY, J., dissents in separate opinion filed. WELLIVER, J., dissents in separate dissenting opinion of DONNELLY, J. ROBERTSON, J., not sitting.

1 . The omissions are of portions of the letter blocked out by the trial court.

The dissent is flatly wrong in asserting that the entire text of the letter was received in evidence. Portions not relating to the solicitation of the alibi witness were masked.

2 . Section 575.270.1, RSMo Cum.Supp.1984.

3 . Ariz.Rev.Stat. § 13-2804, 1978.

4 . Burger v. Crocker, 392 S.W.2d 640, 645 (Mo.App.1965); Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333, 338 (Mo.App.1967); United States v. Calvert, 523 F.2d 895, 909 (8th Cir.1975) cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976); Pritchard-Keang Nam Corp. v. Jaworski, 751 F.2d 277, 281 (8th Cir.1984).

5 . State v. Brydon, 626 S.W.2d 443, 453 (Mo.App.1981) and State v. Kollenborn, 304 S.W.2d 855, 864 (Mo.banc 1957) (a wife is a competent witness against her husband in a prosecution for acts constituting a crime of personal violence against her child. This exception arises from the common-law exception permitting the wife to testify against the husband in case of her own injury by the husband.); State v. Applegate, 668 S.W.2d 624 (Mo.App.1984) (threats of violence by one spouse against another are not confidential communications within the meaning of § 546.260.); Durr v. Vick, 345 S.W.2d 165 (Mo.1961) (communications between husband and wife involving purely business matters are not confidential); Henry v. Sneed, 90 Mo. 407, 12 S.W. 663 (1889) (testimony concerning otherwise confidential communication between husband and wife was held admissible because the court felt that the testimony was necessary to prevent fraud); and Darrier v. Darrier, 58 Mo. 222 (1874) (a letter was held not privileged as a confidential communication because of the existence of an agency relationship between the spouses).

6 .Curious indeed is the proposition advanced in the dissent, that exceptions may be implied in a statute which speaks in absolute terms, so long as the exceptions are based on the preexisting case law. From a strictly logical standpoint it is more difficult to support an exception knowable to the legislature which passes the statute than one which had not been previously considered by the courts.