Coleman v. State

Decision Date08 December 1977
Docket NumberNo. 53,53
Citation380 A.2d 49,281 Md. 538
Parties, 98 A.L.R.3d 1275 Eugene Michael COLEMAN v. STATE of Maryland.
CourtMaryland Court of Appeals

Bradford C. Peabody, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

F. Ford Loker, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

MURPHY, Chief Judge.

Appellant Coleman was found guilty by a jury in the Criminal Court of Baltimore of rape, perverted sexual practice, and larceny. He contended on appeal that his convictions should be reversed because a privileged confidential communication between him and his wife was improperly admitted in evidence at his trial in violation of Maryland Code (1974), § 9-105 of the Courts and Judicial Proceedings Article; that section provides that "One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage." The Court of Special Appeals found no merit in the contention and affirmed the convictions. Coleman v. State, 35 Md.App. 208, 370 A.2d 174 (1977). We granted certiorari to consider whether the admission in evidence of the challenged communication violated the provisions of the statute.

The evidence at trial disclosed that Rose Weaver accompanied Coleman to his apartment on the evening of September 24, 1975, where he raped her, emptied her pocketbook of $17 and a diamond ring, and forced her to submit to various perverted sexual acts.

Glora McCue lived in the same apartment building as Coleman. She testified that she was present in Coleman's apartment during commission of the crimes and she corroborated the victim's version of the offenses. She admitted taking the ring which Coleman had stolen and placing it in a cabinet in his apartment at his request.

Coleman's wife voluntarily appeared as a witness against him. 1 Over Coleman's objection, she testified that he telephoned her from the jail after his arrest and asked her to go to his apartment and "get the ring that he took from the girl because he was afraid Gloria (McCue) was going to turn it over to the police because she gave them a statement."

As a result of this conversation, Mrs. Coleman went to see Gloria McCue, who gave her the ring. Mrs. Coleman thereafter gave the ring to the police.

The evidence showed that Mrs. Coleman had married the appellant several months prior to his arrest, although prior to the marriage they had lived together "off and on" for approximately seven years and had a five-year-old child. Mrs Coleman testified that the marriage was "completely a business arrangement" designed to permit her to obtain support payments for their child after Coleman's contemplated enlistment in the army. The Colemans did not live together after the marriage and at the time of the trial Mrs. Coleman had instituted divorce proceedings.

In affirming Coleman's convictions, the Court of Special Appeals concluded that the incriminating marital communication was not intended to be confidential, and hence the statute was inapplicable. It also held that because the marriage had for all practical purposes ended at the time the communication was made, the statute did not apply. Further, it held that since the communication was made in furtherance of a crime, the statutory privilege had no application.

The policy reasons underlying the privilege for confidential communications between husband and wife are (1) that the communications originate in confidence, (2) the confidence is essential to the relation, (3) the relation is a proper object of encouragement by the law, and (4) the injury that would inure to it by the disclosure is probably greater than the benefit that would result in the judicial investigation of truth. 8 Wigmore, Evidence, § 2332 (McNaughton rev. 1961). The essence of the privilege is to protect confidences only, id. at § 2336, and thereby encourage such communications free from fear of compulsory disclosure, thus promoting marital harmony. McCormick, Handbook of the Law of Evidence § 86 (2d ed. 1972).

While there is some disagreement among the authorities, the privilege appears to be of common law origin. McCormick refers to the privilege as one "born of the 'common law' " and suggests that statutes securing the privilege are "declaratory of the common law." McCormick, supra, §§ 78, 80. See also Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934); 81 Am.Jur.2d Witnesses, §§ 148, 149 (1976); Annot., 4 A.L.R.2d 835, § 2 (1949); Annot., 95 L.Ed. 309 (1951).

McCormick describes the privilege as "a late offshoot of an ancient tree"; it is clearly separate and distinct from two rules of the common law which preceded it: (1) the marital disqualification which prohibited a spouse from testifying in favor of the other spouse, and (2) the privilege of a husband or wife not to testify to any facts against the other a privilege justified, in part, by a need to preserve marital confidences. McCormick, supra, § 78; 8 Wigmore, supra, § 2333. Thus, the marital communications privilege was perceived as a rule distinct from the privilege not to testify against a spouse. However, when a trend appeared, in the period from 1840 to 1870, to abolish or restrict these common law marital disqualifications, the present privilege for confidential communications between spouses was enacted, although it existed in principle long before this period.

Maryland first enacted a marital privilege statute for confidential communications between spouses in 1864; at the same time, it provided that husbands and wives were generally competent and compellable to give evidence in the same manner as other witnesses. See ch. 109 of the Acts of 1864. The marital privilege was repealed in 1876 and was not again enacted until 1888. See ch. 545 of the Acts of 1888, and Moser, Compellability of One Spouse to Testify Against the Other in Criminal Cases, 15 Md.L.R. 16, 17 n. 4 (1955).

Communications between husband and wife occurring during the marriage are deemed confidential if expressly made so, or if the subject is such that the communicating spouse would probably desire that the matter be kept secret, either because its disclosure would be embarrassing or for some other reason. McCormick, supra, § 80. The Court of Appeals of New York, in Parkhurst v. Berdell, 110 N.Y. 386, 18 N.E. 123 (1888), held that marital communications were confidential if "expressly made confidential, or such as are of a confidential nature, or induced by the marital relation." 18 N.E. at 127. The same court, in Poppe v. Poppe, 3 N.Y.2d 312, 165 N.Y.S.2d 99, 144 N.E.2d 72 (1957), said that the New York statute (which is not dissimilar to our own) was designed to protect and strengthen the marital bond and encompasses only those statements that are " 'confidential,' that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship." 165 N.Y.S.2d at 101, 144 N.E.2d at 73.

It is not necessary that the spouse claiming the privilege establish the confidential nature of the communication. Generally, the courts have presumed that communications between husband and wife are confidential and privileged, although the circumstances of a given case can negate this presumption. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); Wolfle v. United States, supra; 8 Wigmore, supra, § 2336. The presumption is rebutted where it is shown that the communication was not intended to be confidential, or was made to, or in the presence of a third party. Pereira v. United States, supra; Wolfle v. United States, supra; Gutridge v. State, 236 Md. 514, 204 A.2d 557 (1964); Master v. Master, 223 Md. 618, 166 A.2d 251 (1960); Metz v. State, 9 Md.App. 15, 262 A.2d 331 (1970). For example, the fact that a husband knew that his wife was unable to read without the assistance of a third party would rebut the presumption that a letter which he sent to her was intended to be confidential. See Grulkey v. United States, 394 F.2d 244 (8th Cir. 1968); State v. Fiddler, 57 Wash.2d 815, 360 P.2d 155 (1961). Similarly, in State v. Musser, 110 Utah 534, 175 P.2d 724 (1946), vacated on other grounds, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562 (1948), a husband's communication to his wife to discuss a matter with certain other individuals was held not confidential.

The Court of Special Appeals held that "because appellant and his wife were not living together, the husband knew that the wife's only means of access to his apartment to retrieve the ring was through a third party, Gloria McCue, who had hidden the ring at appellant's bidding. . . . " Therefore, the court concluded Coleman had knowledge that his communication would be disclosed to a third person.

We cannot agree. Coleman asked his wife to go to his apartment to get the ring which he had stolen from the victim. That this task did not require that Mrs. Coleman repeat the communication to McCue is readily apparent. She could have attempted to gain access to the apartment and look for the ring without assistance, or she might have asked McCue for the ring without disclosing the substance of her husband's communication. It is unlikely that Coleman intended that his statement be disclosed to McCue, the very person he believed was at that time cooperating with the police. Unlike the cases heretofore cited, Coleman did not suggest that his wife disclose his communication to a third party, nor did the circumstances require a disclosure.

In addition, the nature of the communication indicates that it was intended to remain confidential. See Blau v. United States, supra. This is particularly true where, as here, the marital communication...

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