Glover v. State

• Decision Date: 02 November 2005
• Docket Number: No. 49S02-0502-CR-56.,49S02-0502-CR-56.
• Citation: 836 N.E.2d 414
• Parties: John GLOVER, Appellant (Plaintiff below), v. STATE of Indiana, Appellee (Defendant below).
• Court: Indiana Supreme Court

836 N.E.2d 414

John GLOVER, Appellant (Plaintiff below), v. STATE of Indiana, Appellee (Defendant below).

No. 49S02-0502-CR-56.

Supreme Court of Indiana.

November 2, 2005.

Kimberly A. DeVane, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Joby Jerrells, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

In the course of Glover's trial for murder, the State called his wife to testify against him. In this interlocutory appeal, Glover challenges the denial of his motion to suppress her testimony. We hold that a court cannot require the wife to testify as to confidential communications between her and Glover, but the marital privilege does not bar her voluntary testimony.

Factual and Procedural Background

In November 1999 Kamaljeet Dhaliwal, a native of India, moved to the United States and married Andrew Abdul, a United States citizen. Dhaliwal and Abdul were divorced in December 2001. As a result of the divorce, Dhaliwal became an illegal immigrant and was to be deported within six months. At the time of her divorce Dhaliwal and John Glover worked together at a hospital. She described Glover as a "good friend" who "used to treat me as his daughter there." When she explained to Glover that she was about to be deported, he offered to help her by "getting married on papers." Dhaliwal and Glover were married on February 28, 2002 in Louisville, Kentucky, and Dhaliwal became known as Bobbie Glover. Dhaliwal testified that Glover never stayed at her home for more than an hour and that she lived in the Wildwood Village Apartments with roommates, while Glover resided with a girlfriend at another apartment in the same complex.

On September 17, 2002, Tammy Gibbs, another resident of Wildwood Village, was found strangled in her apartment. A neighbor told police that she had seen Gibbs at around 8:15 that morning standing in front of Gibbs's apartment building beside a red truck driven by Glover. In police interviews Glover initially denied having been at Wildwood Village the day of Gibbs's murder, but after he was asked to take a polygraph test, he admitted that he had gone to the apartment complex that day. He claimed he was there to see Bobbie Glover (Dhaliwal) and that he had not seen Gibbs.

Two weeks after Gibbs's death, Dhaliwal called Detective Jesse Beavers and arranged to meet with him at police headquarters. She arrived with her priest and told Beavers that on the day of the murder Glover had arrived at her apartment between 10:15 and 10:45 in the morning. She reported that Glover had told her that he had killed Gibbs and had demonstrated how he had put his hands around Gibbs's neck.

The State charged Glover with Gibbs's murder and listed Dhaliwal as a witness. Glover moved to suppress Dhaliwal's testimony pursuant to the marital privilege codified at Indiana Code section 34-46-3-1(4) (2004). After a hearing, the trial court denied the motion on the ground that Glover's marriage to Dhaliwal was a sham designed only to save Dhaliwal from deportation. The trial court reasoned that if the purpose of a marriage is only to defraud, it is inconsistent with the legal protections afforded married couples and the privilege is lost. The trial court certified its ruling for interlocutory appeal. On appeal, the Court of Appeals reversed, reasoning that there is no "fraudulent" marriage exception to the privilege, and therefore Dhaliwal could not testify at Glover's trial to these confidential communications. Glover v. State, 816 N.E.2d 1197, 1201 (Ind.Ct.App.2004). This Court granted transfer. Glover v. State, 831 N.E.2d 737 (Ind.2005).

I. Who Qualifies as a Spouse

At common law two rules restricted spousal testimony. First, a "testimonial" privilege allowed either spouse to prevent the other from testifying against him or her. 8 Wigmore, Evidence § 2227 (McNaughton rev.1961). This privilege was not limited to confidential communications but was available only to spouses who were married at the time of trial. Shepherd v. State, 257 Ind. 229, 232, 277 N.E.2d 165, 167 (1971); 8 Wigmore, supra, § 2230. The testimonial privilege was justified on the ground that it prevented discord between spouses. Hawkins v. United States, 358 U.S. 74, 77, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958); 8 Wigmore, supra, § 2228. In addition to preserving marital harmony, this testimonial privilege was viewed as avoiding what was thought to be the naturally repugnant spectacle of a wife compelled to testify against her husband. Hawkins, 358 U.S. at 77-79, 79 S.Ct. 136; 8 Wigmore, supra, § 2228. This spousal testimonial privilege is not recognized in Indiana law. State v. Roach, 669 N.E.2d 1009, 1010 (Ind.Ct.App.1996).

A second common law rule disqualified husbands and wives from testifying on behalf of their spouses. 2 Wigmore, supra, § 600. This competency rule was the product of the early common law disqualification of parties from testifying in their own causes, and also the notion that husband and wife were one. 2 Wigmore, supra, § 601. The rationale for spousal incompetence was first advanced by Lord Coke in 1 E. Coke, The First of the Institutes of the Lawes of England 6b (London 1628). If one spouse could not testify in his or her own behalf, neither could the other component of the marital unity. Because of the unity of spouses, the wife shared her husband's disqualification as an interested party. 2 Wigmore, supra, §§ 575, 600. Indiana law preserved this concept in the Civil Code of 1881, but the courts have limited its application primarily to will disputes. See I.C. § 34-45-2-9; Taylor v. Taylor, 643 N.E.2d 893, 896 (Ind.1994); Lee v. Schroeder, 529 N.E.2d 349, 353 (Ind.Ct.App.1988), trans. denied. It also showed up in a case turning on the dead man's statute issues, and in actions of a husband for an alleged seduction of his wife. Bechert v. Lehe, 161 Ind.App. 454, 457, 316 N.E.2d 394, 397 (1974) (dead man's statute issue); Judah v. Goldsmith, 90 Ind.App. 81, 83, 164 N.E. 496, 498 (1929) (seduction); Mainard v. Beider, 2 Ind.App. 115, 116, 28 N.E. 196, 197 (1891) (seduction).

In the 1800s a third doctrine arose, first in the statutory reforms found in the Common Law Procedure Act. This took the form of a marital privilege protecting communications between husband and wife, distinct from the earlier testimonial privilege. 8 Wigmore, supra, § 2333. As Wigmore cautioned: "The two privileges have little in common, either in policy or in rule. Their separation needs repeated emphasis if the possibility of confusion is to be avoided." Id. at § 2334. The marital communications privilege differs from the testimonial privilege in several respects. It is limited to confidential communications protecting only communications between individuals who have entered into a legally recognized marriage, and survives the termination of the marriage. Holt v. State, 481 N.E.2d 1324, 1326 (Ind.1985); Beyerline v. State, 147 Ind. 125, 130, 45 N.E. 772, 774 (1897).

In the mid-nineteenth century, most United States jurisdictions abolished or restricted the testimonial privilege and the competency rule, but the marital communications privilege was generally preserved. 8 Wigmore, supra, § 2333. In Indiana the marital privilege has been in place since at least 1881 as a subsection of the statute addressing a number of privileges. It now appears at Indiana Code section 34-46-3-1(4) which reads:¹ "Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications:... (4) Husband and wife, as to communications made to each other."

It is undisputed that Glover's marriage to Dhaliwal was valid under Kentucky law and at the time of the alleged communication had not been voided or annulled. The State argues that Glover's conversation with Dhaliwal nevertheless enjoyed no privilege because it had "no relation to their mutual trust and confidence as husband and wife." The State argues that the marriage was entered into in an attempt to defraud the federal government, and therefore Glover should not enjoy the protections of the marital privilege. Stated differently, the State asks this Court to expand the requirement of a legal marriage, as announced in Holt, to exclude communications between individuals who have entered into a "fraudulent" or "sham" marriage.

The State cites Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953) in support of its position. In Lutwak, a World War II veteran was convicted of conspiracy to defraud the United States after entering into marriage for the purpose of deceiving the immigration authorities. Much of the evidence of the conspiracy came from Lutwak's spouse, and Lutwak argued that his marital relationship prevented his wife from testifying as to confidential communications between them. The Court concluded that where the parties entered into a sham marriage to defraud the federal government, "[t]he light of reason and experience do not compel [the Court] to so interpret the common law as to disqualify" the ostensible spouse from testifying. Id. at 615, 73 S.Ct. 481.

The State also points to Archina v. People, 135 Colo. 8, 307 P.2d 1083, 1091-92 (1957), where the Colorado Supreme Court held that the Colorado marital privilege did not apply because the marriage was performed for the purpose of enabling the defendant to gain admittance to the United States. The court pointed out that the defendant and his wife had been married in a civil ceremony but "there was to be a subsequent ceremony performed in accordance with the religious convictions of both and after such second ceremony and only then would they consider themselves husband and wife." Id. at 1092. The court concluded that the Colorado legislature did not intend to protect the relationship between the defendant and his wife in a "cold, inanimate, lifeless relationship which had its beginning and end in a preliminary civil contract." Id.

The...