Brown v. State

• Decision Date: 09 June 2000
• Docket Number: No. 83,83
• Citation: 359 Md. 180,753 A.2d 84
• Parties: Keith Alexander BROWN v. STATE of Maryland.
• Court: Maryland Court of Appeals

753 A.2d 84

359 Md. 180

Keith Alexander BROWN v. STATE of Maryland.

No. 83, Sept. Term, 1999.

Court of Appeals of Maryland.

June 9, 2000.

Byron L. Warnken and Linda L. Mason (Linda L. Mason, Law Offices of Bonnie L. Warnken, on brief), Baltimore, for petitioner.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

WILNER, Judge.

After a jury trial in the Circuit Court for Baltimore City, petitioner was convicted of first degree murder, along with various handgun offenses, for which he was sentenced to life imprisonment without the possibility of parole. The victim was petitioner's girlfriend, Makea Stewart. One of the witnesses who testified against petitioner was his wife, Jennifer Sellers Brown, and, in the course of her testimony, she stated that, on the night of the murder, petitioner confessed to her that he had killed Ms. Stewart.

Petitioner complains that that testimony was inadmissible under Maryland Code, § 9-105 of the Courts and Judicial Proceedings Article, (CJP), which provides that "[o]ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage." Correctly regarding his inculpatory statement to Ms. Brown as a confidential communication made during the marriage, petitioner contends that his wife was, indeed, "incompetent" to testify regarding it.¹ Despite the language of the statute, the State views § 9-105 not as rendering a spouse "incompetent," but as providing petitioner with a privilege to preclude testimony regarding confidential marital communications, a privilege that can be waived. In this case, it argues, the privilege was waived by petitioner's contention, expressed at different times throughout the trial, that his wife was, in fact, the killer—that she killed Ms. Stewart out of jealousy. The State urges that, when a defendant asserts a "my spouse did it" defense, he or she waives any privilege under the statute to prevent the spouse from relating otherwise confidential marital communications in response to that accusation.

In affirming petitioner's convictions, the Court of Special Appeals, in an unreported opinion, accepted the State's argument. Over a dissent, it held flatly that § 9-105 provides a privilege, not an actual incompetence, and that the privilege "is waived by the criminal defendants who, either personally or through counsel, present a `my spouse did it' theory of defense." We granted certiorari to review that conclusion. We shall hold that (1) § 9-105 does not render a spouse "incompetent" to testify regarding confidential marital communications but rather establishes a privilege on the part of the person making the communication to preclude testimony by the person's spouse that discloses the communication, (2) the privilege may be waived by the person, but (3) it was not waived in this case. Accordingly, we shall reverse the judgment of the Court of Special Appeals.

BACKGROUND

Makea Stewart was found dead around 3:30 a.m. on September 10, 1995 in an alleyway behind 3326 Gwynns Falls Parkway, in Baltimore City. She had been shot eight times with a .380 caliber handgun that was owned by petitioner and was later recovered from his car. Petitioner's fingerprints were found on the magazine of the weapon. A witness, Jerry Manns, reported hearing gunshots from his kitchen window at approximately the time of Ms. Stewart's reported death. From his window, he saw an African-American male in his twenties leave the alley and drive off in a small two-door car with a malfunctioning muffler. He saw the same man return a short time later with a gun in his hand. Manns heard a single gunshot and then saw the man get back into his car and leave. It was later established that petitioner, an African-American male, drove a two-door Mazda with a faulty muffler. Near Ms. Stewart's body Detective Barlow discovered her pager, which showed that several calls had been made to the pager from a cellular phone later found in petitioner's possession.

Ms. Stewart's mother, Jill Sullivan, informed Detective Barlow that Ms. Stewart had been having an affair with a married man named Keith, that her daughter told her two days before the murder that she (Ms. Stewart) was pregnant with Keith's baby and that she was going to confront Keith about the pregnancy. A friend of Ms. Stewart, Cassandra Green, testified at trial that she overheard Ms. Stewart telling petitioner that she might be pregnant and that petitioner told the victim that he knew she was pregnant and that she had a decision to make. Genetic tests confirmed that, at the time of her death, Ms. Stewart was pregnant with petitioner's child.

The State's theory was that petitioner, from the very inception of his marriage to Ms. Brown, was romantically involved with Ms. Stewart, that Ms. Stewart became pregnant as a result of the affair, that petitioner insisted that she abort the pregnancy, that she refused, and that he killed her because he feared that the pregnancy would wreck his marriage. Petitioner made clear, both at the outset and throughout the trial, that his defense was based on the proposition that his wife, who was aware of his affair with the victim and had threatened both him and the victim in the past, killed the victim out of jealousy. He asserted that position to the court in arguing a pre-trial motion, he asserted it to the jury in his opening statement, he implied it in his own testimony and in the cross-examination of some of the State's witnesses, and he again asserted it more directly in closing argument. In its case-in-chief, the State called Ms. Brown, who recounted that she and petitioner were married on August 20, 1994, and that on September 9, 1994—the day they signed a lease on their new apartment—she discovered a picture of Ms. Stewart in petitioner's car and thus learned that he had a girlfriend. The problem was exacerbated by the fact that Ms. Stewart continued to call petitioner, which led to arguments between him and Ms. Brown. Ms. Brown had a number of conversations with Ms. Stewart, complaining about her calls to petitioner. They were all "heated discussions," she said. At one point, when petitioner said that he had a doctor's appointment and would be late, Ms. Brown discovered him and Ms. Stewart together at a bowling alley, which led to another argument and to Ms. Brown throwing a bottle at the victim. All of this testimony was admitted without objection.

Ms. Brown then testified that on September 9, 1995—the night of the murder— petitioner returned home at around 4:00 a.m., that she asked him where he had been and that he refused to tell her. Ms. Brown then got into an argument with petitioner about his talking with the victim. In response to the question, "What happened then," Ms. Brown said, apparently to everyone's surprise, "He told me he killed her and I didn't believe him."

Counsel immediately claimed surprise and complained that the State had failed to disclose this inculpatory statement. The court reserved on counsel's implicit objection but noted that it was "not persuaded that it's excludable at this point," apparently because the admission, which was not included in the written statement Ms. Brown had given to the police, was not one made to a State agent. The focus was solely on the alleged non-disclosure, the court stating that it had "heard nothing to indicate that it's something that the State was mandated to warn you about in advance, basically." Petitioner requested "a continuing objection to the entire line of questioning," without specifying any other basis for the objection. Ms. Brown then repeated that petitioner told her that he had killed the victim. She added:

"I didn't believe him so I asked him why and where and he said that ... he did it because I always harassed him about her and he told her that she would always be around, she wouldn't leave him alone and she wasn't going anywhere so he killed her and then I asked him, well, where, he wouldn't tell me. I said well, where's your gun? He wouldn't tell me. And then I asked him how and he wouldn't tell me. He said the less I knew the better it was for him and I told him that he was going to jail and he said I know, and that was it."

Ms. Brown recounted two additional conversations. Later that evening, they learned from television news that two bodies had been found, "and I asked if one of them was her and he said yes. I said which one, he wouldn't tell me." At some point during the next five days, Ms. Brown put petitioner out of the apartment. After petitioner was arrested, Ms. Brown said that she and petitioner talked about the murder on several occasions:

"[O]n one visit I asked him if she cried and he told me he didn't know and he told me what happened and that he was scared and when she turned to walk away he started shooting and he couldn't stop, and that was it. And then I asked him over the phone if he ever thought about her and he said only different ways that it could have been done, referring to how she died."

At the conclusion of Ms. Brown's testimony, petitioner, for the first time, called the court's attention to § 9-105, arguing that, until the statement was "blurted out," there was no occasion to raise the confidentiality issue. Although initially admonishing counsel for not having raised that objection earlier, the court was eventually convinced that "[t]his is a competency issue"—not a privilege—and that, because the defense was previously unaware of the admission, it could be excused for not having raised the issue earlier. It therefore instructed the jury that the testimony was stricken. Following further discussion at a later point in the trial, however, the court reconsidered that ruling. Relying on Harris v. State, 37 Md.App. 180, 376 A.2d 1144 (1977), in which the Court of...