State v. Witchey

388 N.W.2d 893, 62 A.L.R. 4th 1123, 1986 S.D. LEXIS 278

• Court: South Dakota Supreme Court
• Decided: June 11, 1986
• Docket: 15071
• Status: Published

Opinions

FOSHEIM, Chief Justice.

The trial court granted Defendant Joel Witchey’s (Defendant) pretrial motion to suppress certain voluntary testimony by Defendant’s former wife (wife). We granted an appeal from that intermediate order and now reverse.

In early January of 1985, Defendant was charged with rape in violation of SDCL § 22-22-1. State alleges Defendant forced a young woman to perform oral sex with him after he followed her into an alley near her home as she returned from work in the late hours of October 6 or the early morning hours of October 7,1979. The evidence will show that Defendant’s wife accompanied him in the car when they followed the victim from a bar to her babysitters and on to her home. The wife, following Defendant’s instructions, waited in the driver’s seat of the car with the motor running while Defendant pursued the victim into an alley on foot. Invoking the confidential marital communication privilege, Defendant seeks suppression of any conversation¹ between Defendant and his wife regarding the incident, especially that which took place upon his return to the car. State counters that the conversation in the car falls under an express exception to the marital communication privilege² since wife was a participant in the crime.

The marital communication privilege m South Dakota is governed by SDCL § 19-13-13. This statute provides:

An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.

A defendant or his spouse may claim this privilege. SDCL § 19-13-14. “A communication is confidential if it is made privately by any person to his or her spouse during their marriage and is not intended for disclosure to any other person.” SDCL § 19-13-12.

State urges that a well recognized joint-participant exception to the marital communication privilege be adopted in South Dakota. We agree.

A growing number of state and federal courts have refused to classify conversations such as Defendant’s and his wife’s as a privileged spousal communication. See, e.g., United States v. Sims, 755 F.2d 1239, 1243 (6th Cir.1985); United States v. Neal, 743 F.2d 1441, 1447 (10th Cir.1984); United States v. Amman, 714 F.2d 238, 258 (3rd Cir.1983); United States v. Petty, 602 F.Supp. 996, 998 (D.Wyo.1984); State v. Smith, 384 A.2d 687, 694 (Me.1978); see also United States v. Archer, 733 F.2d 354 (5th Cir.1984); United States v. Mendoza, 574 F.2d 1373 (5th Cir.1978); Gill v. Commonwealth, 374 S.W.2d 848, 851 (Ky.1964); contra Johnson v. State, 451 So.2d 1024 (Fla.App.1984).

The exception has been variously expressed. The primary focus, however, is on the nature and purpose of the communication itself. To be privileged the communication must arise from the privacy of marriage, not the joint commission of a crime. Neal, 743 F.2d at 1446. Most simply stated, the communication is not protected if it is one criminal, or potential criminal, talking to another. Sims, 755 F.2d at 1243. Only communications based on or induced by the marital status alone are protected. Gill, 374 S.W.2d at 850; Smith, 384 A.2d at 693.

The joint-participant exception has been created in light of the need to narrowly interpret privileges since privileges “are in derogation of the search for the truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Just as the rule is narrowly interpreted, so must the exception be applied sparingly. All marital communications³ are presumed confidential. Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 302, 95 L.Ed. 306 (1951); Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 280, 78 L.Ed. 617 (1934); Smith, 384 A.2d at 691. With the introduction of evidence of private communications between spouses goes the burden of showing that either the nature of the communication or the circumstances under which it occurred render the communication not privileged. Id.; see also State v. McMorrow, 314 N.W.2d 287, 289 (N.D.1982). Under the joint-participant exception, the testifying spouse must be more than a simple receptor of a statement by the defendant-spouse that he committed a crime. Neal, 743 F.2d at 1446. Active participation in, or furtherance of, patently criminal activity by the witness-spouse must be shown. Smith, 384 A.2d at 693; Sims, 755 F.2d 1243.

Public policies which lead to the creation of the privilege are not forsaken by recognition of this exception. Rather, when the witness-spouse and defendant-spouse are engaged in joint criminal activity, the public’s interest in discovering the truth about criminal activity outweighs the public’s interest in protecting the privacy of such a communication. Trammel v. United States, 445 U.S. 40, 51-53, 100 S.Ct. 906, 912-914, 63 L.Ed.2d 186 (1980); Sims, 755 F.2d at 1243.

Our State Legislature has created specific exceptions to the interspousal privilege. SDCL § 19-13-15.⁴ However, that statute recognizes that a valid interspousal privilege may exist in the situations enumerated but abrogates its application in specified situations. Id. In contrast, the exception we recognize here focuses on the definition of a marital communication and finds that a defendant may not prevent a spouse’s voluntary testimony⁵ about a communication during joint participation in a crime because that communication does not fall within the definition of SDCL § 19-13-12.

Finally, we note that our legislature has mandated that our state’s rules of evidence shall be construed to promote “growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” SDCL § 19-9-2. The intent of our marital communication privilege is preserved but we will no longer unduly burden legitimate law enforcement needs under circumstances such as these. Sims, 755 F.2d at 1243.

We reverse and remand.

MORGAN and HENDERSON, JJ., concur. WUEST and SABERS, JJ., dissent.

1 . Most particularly, State seeks admittance of Defendant’s statement to his wife that all he got was “a blow job.” The couple’s conversation-prior to and after the incident would also indicate Defendant’s plan, his wife’s knowledge of and participation in the alleged crime, and their establishment of an alibi.

2 . The communications privilege protects from disclosure any communication made in confidence by one spouse to another during the marriage. See Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934). The testimonial privilege more fundamentally protects existing marriages by permitting a person to refuse to testify against his or her spouse. The two privileges are separate and distinct. Trammel v. United States, 445 U.S. 40, 44-45 n. 5, 100 S.Ct. 906, 909 n. 5, 63 L.Ed.2d 186 (1980). The doctrine of spousal incompetency ("testimonial privilege”) was repealed by the South Dakota legislature in 1979. State v. Dikstaal, 320 N.W.2d 164, 165 (S.D.1982). Under present law only a confidential marital communication may be privileged. Id. at 165-66; see SDCL §§ 19-13-13, & -14.

3 . Some “acts” may be protected marital communications. See United States v. Smith, 533 F.2d 1077, 1079 (9th Cir.1976).

4 . SDCL § 19-13-15 provides:

There is no privilege under § 19-13-13 in a proceeding in which one spouse is charged with a crime against the person or property of

(1) the other,

(2) a child of either,

(3) a person residing in the household of either, or

(4) a third person committed in the course of committing a crime against any of them.

5 . This decision is limited to voluntary testimony by a witness-spouse. Defendant and wife were divorced prior to trial. However, the applicability or non-applicability of the marital communication privilege to the testimony of a criminal defendant’s former spouse was not raised on appeal. We therefore do not reach this issue. E.g. Johnson v. John Deere Co., 306 N.W.2d 231, 239 (S.D.1981); Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976).