841 P.2d 758 (Wash. 1992), 59433-3, State v. Burden

Docket Nº:59433-3.
Citation:841 P.2d 758, 120 Wn.2d 371
Opinion Judge:DOLLIVER
Party Name:The STATE of Washington, Petitioner, v. Steven N. BURDEN, Respondent.
Attorney:C. Danny Clem, Kitsap County Prosecutor, Pamela B. Loginsky, Donald J. Porter, Deputies, Port Orchard, for petitioner., Roger A. Hunko, Silverdale, for respondent.
Judge Panel:DORE, C.J., and UTTER, BRACHTENBACH, ANDERSEN, SMITH, DURHAM, GUY and JOHNSON, JJ., concur.
Case Date:December 10, 1992
Court:Supreme Court of Washington
 
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841 P.2d 758 (Wash. 1992)

120 Wn.2d 371

The STATE of Washington, Petitioner,

v.

Steven N. BURDEN, Respondent.

No. 59433-3.

Supreme Court of Washington, En Banc.

December 10, 1992

[120 Wn.2d 372] C. Danny Clem, Kitsap County Prosecutor, Pamela B. Loginsky, Donald J. Porter, Deputies, Port Orchard, for petitioner.

Roger A. Hunko, Silverdale, for respondent.

DOLLIVER, Justice.

Plaintiff, the State of Washington, appeals the trial court's ruling excluding third person testimony of extrajudicial statements made by Mary K. Burden, the wife of the defendant Steven N. Burden, based upon the spousal testimonial privilege in RCW 5.60.060(1).

On April 27, 1992, defendant Steven N. Burden was arrested in Kitsap County charged with 1 count of first degree possession of stolen property and 3 counts of investment of proceeds of criminal profiteering into real estate. On June 11, 1992, the State amended the information charging defendant with an additional 34 felony counts [120 Wn.2d 373] consisting of 28 counts of first degree possession of stolen property, 1 count of investment of proceeds of criminal profiteering into real estate, 3 counts of second degree possession of stolen property, 1 count of attempted investment of proceeds of criminal profiteering, and 1 count of conspiracy to commit first degree theft.

The charges were the culmination of an investigation into Mary and Steven Burden's

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activities throughout the midwest and west in a price switching and cash refund scam. The defendant allegedly used the proceeds of the scam to invest in real property in Kitsap County. During the course of the investigation, the police became aware of inculpatory statements made by Mary Burden to third persons, including statements to her pastor, her brother, Kitsap County police officers, and various department store cashiers. On June 15, 1992, the defendant filed a motion in limine seeking an order excluding third person testimony of all out-of-court statements made by Mary Burden which concerned any aspect of the pending charges.

On June 16, 1992, the trial court granted the motion ruling the testimonial privilege barred the admission of the testimony. The State appealed to the Court of Appeals and requested an emergency stay of proceedings pending the result of the appeal. A temporary stay was entered on June 17, 1992, which halted all proceedings except for completion of the CrR 3.6 hearing. Because of the stay, the defendant has yet to be arraigned on the additional charges brought by the State, but remains in custody on the initial charges. Review was granted on June 22, 1992, and a ruling accelerating review was entered on June 25, 1992. The Court of Appeals certified the case to this court. We reverse.

The testimonial privilege is contained in RCW 5.60.060(1), which provides:

A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the [120 Wn.2d 374] other, examined as to any communication made by one to the other during marriage....

(Italics ours). This provision also contains the marital communications privilege, not at issue in this case, which protects confidential communications made during marriage. See State v. Thorne, 43 Wash.2d 47, 54-55, 260 P.2d 331 (1953).

Here, the defendant asserts admission of Mary Burden's extrajudicial statements by third persons would indirectly violate the testimonial privilege and place him in the position of having to waive the privilege to refute the testimony or allow the testimony without cross examination.

We have previously rejected this argument. See State v. Kosanke, 23 Wash.2d 211, 160 P.2d 541 (1945). In Kosanke, the court admitted third person testimony as to extrajudicial statements made by the defendant's wife regarding her effort to persuade the parents of the victim not to be present for her husband's trial for indecent liberties and carnal knowledge of their child. The defendant, as in this case, argued the admission of the testimony indirectly violated the testimonial privilege and placed him in the position of having to waive the privilege to refute the testimony. The court, however, stated:

[T]he court [has not gone] so far as to hold that relevant and material evidence could not be adduced merely because, in order to refute the same, the wife of a defendant might have to be called as a witness. In this case the wife of appellant was not called as a witness by respondent, nor was the attention of the jury called to her in such a way as to require objection on the part of appellant in order to preserve his rights under the statute.... [T]he fact that refutation of competent evidence would require the wife being a witness does not make it erroneous to adduce the testimony. The statute [testimonial privilege] was not violated either directly or indirectly.

(Italics ours.) Kosanke, 23 Wash.2d at 217-18, 160 P.2d 541.

We do not, however, rest our decision solely on Kosanke because the court did not consider whether the exclusion of third-person testimony of a spouse's extrajudicial...

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