U.S. v. Parker

• Decision Date: 03 December 1987
• Docket Number: No. 86-5166,86-5166
• Citation: 834 F.2d 408
• Parties: 24 Fed. R. Evid. Serv. 376 UNITED STATES of America, Plaintiff-Appellee, v. Russell Thomas PARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 408

834 F.2d 408

24 Fed. R. Evid. Serv. 376

UNITED STATES of America, Plaintiff-Appellee, v. Russell Thomas PARKER, Defendant-Appellant.

No. 86-5166.

United States Court of Appeals Fourth Circuit.

Argued Oct. 7, 1987.

Decided Dec. 3, 1987.

John Palmer Fishwick, Jr., for defendant-appellant.

Jennie L. Montgomery, Asst. U.S. Atty. (John P. Alderman, U.S. Atty., on brief), for plaintiff-appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation; WINTER, Chief Judge, and WILKINS, Circuit Judge.

POWELL, Associate Justice:

This case presents the question whether certain testimony by the appellant's wife concerning statements made to her by appellant should have been excluded as inadmissible under the confidential marital communications privilege. We think these statements were properly admitted. Moreover, we find that other arguments advanced by appellant do not present substantial questions. Accordingly, we affirm.

I.

Appellant Russell Thomas Parker was indicted by a federal grand jury in the Western District of Virginia on February 20, 1986. A superseding indictment was returned against him on March 20, 1986. He was charged with various crimes including kidnapping, possession of a sawed-off shotgun, carrying a firearm in the commission of a felony, and transportation of a firearm interstate to commit a felony. ¹ On September 11, 1986 a jury convicted him of kidnapping and the three related firearm charges. The district court denied appellant's motion for a new trial on November 5, 1986, and appellant filed a timely notice of appeal.

At trial the Government argued that in October 1982 appellant kidnapped Billy Walters for the purpose of murdering him. Walters was an eighteen-year-old man who lived part of the time in the Parker's trailer. The Government's theory was that appellant and Walters had robbed a convenience store together, and that Parker kidnapped and killed Walters to prevent him from testifying against him. The evidence presented against Parker at trial was that, with the help of his wife Barbara, he tricked Walters into accompanying them across state lines to North Carolina ² where he shot and wounded him. Parker and his wife then took Walters back into Virginia where Parker killed him with a hammer. ³

Barbara Parker testified against appellant as to statements he made to her concerning his intentions towards Walters, and other instructions he gave her in furtherance of his plan to kidnap and murder Walters. Appellant claims these were confidential communications protected by the confidential marital communications privilege ("marital privilege"), and should not have been admitted in evidence. He argues that the "joint criminal participation" exception to the marital privilege does not apply in this case because appellant's wife was neither a co-defendant nor a joint participant. He further asserts that, even if this exception applies, it must be narrowly construed. The Government asserts that all the communications testified to by Barbara Parker fell within the joint criminal participation rule, and therefore none of them was protected by the marital privilege.

II.

Information that is privately disclosed between husband and wife in the confidence of the marital relationship is privileged. Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 302, 95 L.Ed. 306 (1951). ⁴ Marital communications are presumptively confidential. Id. This Circuit has held, however, that "where marital communications have to do with the commission of a crime in which both spouses are participants, the conversation does not fall within the marital privilege...." United States v. Broome, 732 F.2d 363, 365 (4th Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 181, 83 L.Ed.2d 116 (1984). ⁵ This holding reflects a balancing between the public interests in fostering open and honest communications between husband and wife and according a sufficient degree of privacy to marital relationships, on the one hand, and the revelation of truth and the attainment of justice, that also are in the public interest, on the other. As the Second Circuit recently explained, this exception reflects the belief that "greater public good will result from permitting the spouse of an accused to testify willingly concerning their joint criminal activities than would come from permitting the accused to erect a roadblock against the search for truth." United States v. Estes, 793 F.2d 465, 468 (2d Cir.1986).

Much of Barbara Parker's testimony concerning the appellant consisted of describing his conduct or testifying to statements made by him in the presence of Billy Walters. The marital privilege, generally, extends only to utterances, and not to acts. Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 361, 98 L.Ed. 437 (1954); United States v. Estes, 793 F.2d at 467. If the conduct was not intended to convey a confidential message then it is not covered by the privilege. See, e.g., United States v. Estes, 793 F.2d at 467; United States v. Robinson, 763 F.2d 778, 783 (6th Cir.1985); United States v. Smith, 533 F.2d 1077, 1079 (8th Cir.1976). Nor does the mere fact that an act has been performed in the presence of a spouse make it a communication. United States v. Estes, 793 F.2d at 467; United States v. Lustig, 555 F.2d 737, 748 n. 13 (9th Cir.1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978). It is also the case that when dealing with a verbal communication, "[t]he presence of a third party negatives the presumption of privacy." Pereira v. United States, 347 U.S. at 6, 74 S.Ct. at 361.

Therefore, neither Mrs. Parker's detailed description of those noncommunicative actions taken by appellant in kidnapping and murdering Walters, nor the incriminating statements made by him in the presence of Walters, were protected by the marital privilege, regardless of whether the joint participation exception applies in this case. Mrs. Parker did, however, testify to certain statements made to her by appellant that fall within the scope of the privilege. For instance she testified that appellant told her in private that "he had to do Billy in" (App. at 101), and that he was buying shotgun shells in order to "blow Billy's head off" (App. at 105). She also testified that appellant told her of his plan to lure Billy to North Carolina by telling him they were going there to steal marijuana (App. at 107). Moreover, appellant instructed her to drive Walters and him into North Carolina, and then to return for him after he had killed Walters.

III.

Appellant makes three arguments: First, that Mrs. Parker was not a participant in the criminal activity; second, that she was not a co-defendant in this case; and third, that in any event his initial statement to his wife that he had to "do Billy in" (App. at 101) was not within the exception. We address each of these in order.

A.

By her own admission, Mrs. Parker was an active and voluntary participant in the kidnapping and alleged murder of Walters. She: (1) accompanied appellant to an auto repair shop to obtain two shotgun shells he intended to use to kill Walters; (2) accompanied him to North Carolina to choose a place to murder Walters; (3) drove appellant and Walters to this place and dropped them off, so that the car would not have to be left by the side of the road, and she returned in the car an hour later to pick up Parker; (4) helped appellant take Walters, who had been seriously wounded by appellant, back to their home; (5) disconnected the telephone; (6) made sure Walters was dead after appellant beat him with a hammer; (7) helped appellant take Walters' body out of the house; (8) disposed of the bloody mattress; (9) helped clean up the blood stains in the back seat of the car; and (10) assisted in using acid to disfigure Walters body to prevent identification of it. (App. at 102-28). In short, Barbara Parker was intimately involved in the planning, execution, and cover-up of these crimes. In view of the extent of Mrs. Parker's participation, appellant's argument to the contrary is frivolous.

B.

We also find no merit to appellant's claim that because Mrs. Parker was not a co-defendant in this case, the joint criminal participation exception is inapplicable. The cases involving the application of this exception to the marital privilege are uniform in their holdings that it applies to communications that have to do with "the commission of a crime in which both spouses are participants." United States v. Broome, 732 F.2d at 365. We have found no legal authority for qualifying the term "participants" to mean participation in a crime in which both spouses are co-defendants, nor is this a logical construction of that term. The policies behind the joint criminal participation exception are concerned with the actual participation by both spouses in a crime, not with their joint prosecution for that crime. The exception arises out of a careful balancing of the policies behind protecting the intimacy of private marital communications and the public policy of getting at the truth and attaining justice. In the context of communications between husband and wife pertaining to their joint criminal activity, the latter interest outweighs the former. ⁶ Whether the spouse testifying has been indicted and is being prosecuted for his or her participation in the crime is a prosecutorial prerogative that is not material to the policies at issue here.

C.

Appellant also contends that, regardless of the applicability of the joint criminal participation exception to other statements made by him, his initial statement to his wife that he had to "do Billy in" (App. at 101) was made prior to her participation in any criminal activity, and therefore was inadmissible. We disagree. ⁷ To exclude this statement on that ground would be to place form over substance. The basis for the joint criminal participation exception is that the public interests in...