Anderson v. State, 121418 AKCA, A-12600

Docket Nº:A-12600
Opinion Judge:ALLARD JUDGE.
Party Name:JENNIFER ANDERSON, Petitioner, v. STATE OF ALASKA, Respondent.
Attorney:Andy L. Pevehouse, Gilman & Pevehouse, Kenai, for the Petitioner. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Respondent.
Judge Panel:Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER, dissenting.
Case Date:December 14, 2018
Court:Court of Appeals of Alaska



STATE OF ALASKA, Respondent.

No. A-12600

Court of Appeals of Alaska

December 14, 2018

Original Application from the Superior Court, Third Judicial District, Kenai, Carl Bauman, Judge.Trial Court No. 3KN-14-665 CR

Andy L. Pevehouse, Gilman & Pevehouse, Kenai, for the Petitioner.

Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Respondent.

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]



Jennifer Anderson is the wife of Jeremy Anderson, a former high school teacher. Jeremy Anderson currently stands indicted on multiple counts of first- and second-degree sexual abuse of a minor, based on allegations that he had sexual intercourse with one of his students, fifteen-year-old K.H., over the span of four months.

Mrs. Anderson has asserted her spousal immunity privilege not to testify against her husband at his trial.[1] In the proceedings below, the superior court rejected Mrs. Anderson's claim of privilege, concluding that the sexual abuse prosecution against Mr. Anderson fell within one of the codified exceptions to the marital privileges - specifically, the exception codified in Alaska Evidence Rule 5O5(a)(2)(D)(v) for cases in which one of the spouses is charged with "a crime involving domestic violence as defined in AS 18.66.990."2

Mrs. Anderson petitioned this Court to review the superior court's ruling and we accepted the petition as an original application for relief under Alaska Appellate Rule 404. For the reasons explained here, we conclude that the superior court did not err when it rejected Mrs. Anderson's marital privilege claim in this case.

Background facts

On May 8, 2014, fifteen-year-old K.H. reported to one of her high school teachers that she had been sexually involved with her music teacher, thirty-six-year-old Jeremy Anderson, since February of that year. The troopers were contacted, and an investigation ensued. Based on the results of that investigation, Anderson was indicted on fourteen counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor.[3]

At the grand jury hearing, K.H. testified regarding the nature and frequency of her sexual encounters with Anderson. K.H. stated that Anderson had started acting flirtatious towards her in December 2013. Anderson's "flirtation" continued, and the pair had sex for the first time in February 2014. K.H. testified that they had sexual intercourse around twenty to thirty times between February 2014 and early May 2014. The sex occurred on school grounds, generally in the choir room closet or the band room closet.4 Even though K.H. was below the age of sexual consent under Alaska law, she testified that she personally viewed the sex acts as "consensual." She testified that the last time she and Anderson had sex, she told him she did not want to because she felt guilty, but Anderson pressured her to have sex with him despite her initial unwillingness.

During the pretrial proceedings in Jeremy Anderson's case, it became clear that the State intended to introduce various statements that Anderson made to his wife during the course of the investigation.

On the same day that school officials contacted the state troopers, the troopers received a call informing them that a man - later determined to be Jeremy Anderson-was trying to kill himself. The troopers began searching for Mr. Anderson, and ultimately arrested him in his truck. Prior to Anderson's arrest, one of the troopers overheard a cell phone conversation between Anderson and his wife Jennifer. The trooper was able to overhear both sides of the conversation.5 During that conversation, Anderson made general admissions of wrongdoing.

After arresting Anderson, the troopers discovered a letter addressed to his wife and children in the car. In this letter, Anderson admitted, again in general terms, that he had done wrong, and he apologized to his wife for his actions. Later, a trooper spoke with Jennifer Anderson about this letter. Mrs. Anderson told the trooper that, aside from this letter, her husband admitted to her that he had engaged in an inappropriate relationship with one of his students - a student named "K."

In the pretrial proceedings, the State indicated that it intended to call Mrs. Anderson as a witness to testify to her husband's admissions of wrongdoing. The State also indicated that it intended to introduce Mr. Anderson's suicide letter into evidence.

In response, Mr. Anderson asserted his marital communications privilege under Alaska Evidence Rule 505(b) to exclude evidence of any confidential communications between himself and his wife. In later proceedings before the trial court, Mrs. Anderson also asserted her spousal immunity privilege under Rule 505(a), and she separately asserted her own marital communications privilege under Rule 505(b).

The two forms of marital privilege recognized under Alaska law

Alaska law recognizes two marital privileges: the spousal immunity privilege codified in Evidence Rule 505(a), and the marital communications privilege codified in Evidence Rule 505(b).

Evidence Rule 505(a) provides that "a husband shall not be examined for or against his wife, without his consent, nor a wife for or against her husband, without her consent." This privilege belongs solely to the witness-spouse, and it can only be invoked during the life of the marriage.6 Although originally premised on an outmoded jurisprudential theory that a wife has no legal existence separate from her husband, the more modern understanding of the privilege is that it exists to "promote family peace and harmony" that would otherwise be destroyed by adverse spousal testimony.7

Evidence Rule 505(b) provides that a spouse shall "[not] be examined as to any confidential communications made by one spouse to the other during the marriage, without the consent of the other spouse."8 This privilege may be claimed by either spouse, and it continues to apply even after the marriage has ended (provided that the confidential communications occurred during the marriage).9 Unlike the spousal immunity privilege, which is concerned with protecting the peace and harmony of a particular marriage, the confidential marital communications privilege is concerned with protecting the sanctity of marriage in general by safeguarding the freedom of spouses to "communicate their deepest feelings to each other without fear of eventual exposure in a court of law."10

Both the spousal immunity privilege and the marital communications privilege have been criticized by legal commentators, and both privileges are subject to multiple statutory exceptions under Alaska law.11 The privileges are purely statutory in nature and neither privilege is absolute.[12] Moreover, because both marital privileges operate to impede the normal truth-seeking function of court proceedings, they must be "strictly construed" by the courts and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."13

The statutory exceptions to the marital privileges in criminal cases

The Alaska legislature has enacted multiple statutory exceptions to Alaska Evidence Rule 505. Many of these exceptions are specific to criminal proceedings. Evidence Rule 505(a)(2)(D) and Evidence Rule 505(b)(2)(A) prohibit application of either privilege in a criminal proceeding in which one spouse is charged with: (i) A crime against the person or the property of the other spouse or of a child of either ...

(ii) Bigamy, incest, adultery, pimping, or prostitution;

(iii) A crime related to abandonment of a child or nonsupport of a spouse or child;

(iv) A crime prior to the marriage; [or]

(v) A crime involving domestic violence as defined in AS 18.66.990.

These exceptions represent situations in which the legislature has directly determined that society's interest in promoting "family peace and harmony" must give way to society's larger interest in prosecuting certain crimes. Most jurisdictions have codified similar exceptions to their marital privileges.14 Indeed, virtually every jurisdiction recognizes an exception for crimes committed against a spouse or against the children of either spouse.[15]

Some jurisdictions have also expanded this exception to include an "any child" exception-which means that spouses are precluded from asserting their marital privileges in a prosecution involving sexual abuse of any child...

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