Glover v. State
| Decision Date | 05 November 2004 |
| Docket Number | No. 49A02-0401-CR-4.,49A02-0401-CR-4. |
| Citation | 816 N.E.2d 1197 |
| Parties | John GLOVER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kimberly A. DeVane, Crawford & DeVane, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Joby Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
John Glover brings this interlocutory appeal challenging the denial of his motion to suppress the testimony of his wife, Bobbie Glover, in his trial for the murder of Tammy Gibbs. We reverse.
We address one issue, which we restate as whether the trial court erroneously found that the spousal privilege did not apply to Bobbie's testimony.
Glover and Bobbie were lawfully married in Kentucky in February 2002. On September 17, 2002, Gibbs' boyfriend found her dead body floating facedown in her bathtub. An autopsy revealed that she had been strangled. Two weeks later, Bobbie went to the police station and told officers that Glover admitted to her that he had killed Gibbs. According to Bobbie, Glover demonstrated how he had placed his hand around Gibbs' neck and placed her in a bathtub full of water.
The State charged Glover with Gibbs' murder in October 2002 and listed his wife as a State's witness on the charging information. In June 2003, Glover filed a motion to suppress Bobbie's testimony pursuant to the spousal privilege codified at Indiana Code Section 34-46-3-1. The trial court denied the motion after a hearing. Specifically, the court found that the only purpose of the Glovers' marriage was to assist Bobbie, who immigrated to the United States from India in 1999, to remain in this country legally. Appellant's App. p. 84. The court concluded that under these circumstances, where the purpose of the marriage was to defraud the federal government, even though the parties were legally married, they were "in no sense of the word ... spouses," and the spousal privilege did not apply. Appellant's App. p. 84. Glover appeals.
Glover's sole argument is that the trial court erred when it failed to apply the spousal privilege to Bobbie's testimony. Indiana has long protected the privacy of spousal communications. Russell v. State, 743 N.E.2d 269, 271 (Ind.2001). Over one hundred years ago, our supreme court recognized that "[w]here the criminal, in seeking advice and consolation, lays open his heart to his wife, the law regards the sacredness of their relation, and will not permit her to make known what he communicated, even as it will not ask him to disclose it himself." Beyerline v. State, 147 Ind. 125, 130, 45 N.E. 772, 774 (1897). "Strong public policy grounds favor promotion and preservation of marital confidences even if truthful and invaluable testimony in certain cases is excluded." Shepherd v. State, 257 Ind. 229, 232, 277 N.E.2d 165, 167 (1971).
The spousal privilege, which is today codified at Indiana Code Section 34-46-3-1(4), provides as follows:
The spousal privilege has been interpreted as protecting only those communications passing from one marriage partner to the other because of the confidence resulting from their intimate marriage relationship. Beyerline, 147 Ind. at 130, 45 N.E. at 774. The spousal privilege is subject to waiver where the defendant gives direct testimony concerning his communication with his spouse during the time in question, Taylor v. State, 567 N.E.2d 98, 102 (Ind.1991).
The privilege is also subject to certain other well-established exceptions. For example, where the spousal communication is made in the presence of a third person, our supreme court has held that no privilege exists because of the lack of confidentiality. Holt v. State, 481 N.E.2d 1324, 1326 (Ind.1985), cert. denied, 481 U.S. 1031, 107 S.Ct. 1960, 95 L.Ed.2d 532 (1987). The same is true for a communication "intended to be communicated to a third person." Resnover v. State, 267 Ind. 597, 601, 372 N.E.2d 457, 459 (1978). In addition, there is an exception to the spousal privilege where the offense charged was committed by one spouse against the other. Shepherd, 257 Ind. at 232-33, 277 N.E.2d at 167. Lastly, the parties must have a legally recognized marriage in order to claim the spousal privilege. Holt, 481 N.E.2d at 1326.
Here, Glover did not waive the spousal privilege, and the trial court's reason for finding that the privilege did not apply does not fall within one of the well-established exceptions to the privilege. Rather, the State asks us to find a "fraudulent" marriage exception to the privilege, despite the facial legality of the Glovers' marriage. In support of its request, the State directs us to Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953).
In Lutwak, World War II veteran Marcel Lutwak and others were convicted of conspiracy to defraud the United States after entering into phony marriages for the purpose of deceiving immigration authorities. Because much of the evidence of the conspiracy came from Lutwak's spouse, on appeal he argued that the marital relationship rendered his wife incompetent to testify against him. The United States Court of Appeals for the Seventh Circuit affirmed Lutwak's conviction, United States v. Lutwak, 195 F.2d 748 (7th Cir.1952). The United States Supreme Court granted certiorari and affirmed. In reaching its decision, the Supreme Court relied on Rule 26 of the Federal Rules of Criminal Procedure, which provided in relevant part as follows:
The admissibility of evidence and the competency and privileges of witnesses should be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
Lutwak, 344 U.S. at 614,73 S.Ct. at 487. The Supreme Court concluded that, where the parties entered into a sham marriage to defraud the federal government, the light and reason of experience did not compel the Court to interpret the common law to disqualify the alien spouses from testifying. Id. at 615, 73 S.Ct. at 488. The Court therefore affirmed Lutwak's conviction. Id. at 619-20, 73 S.Ct. at 490.
Lutwak, however, is not binding on this court. Federal rules provide an extremely broad exception to federal privileges. Rule 501 of the Federal Rules of Evidence uses the language previously found in Rule 26 of the Federal Rules of Criminal Procedure and expressly states that privileges are "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."
Federal courts have more recently used Rule 501 to narrow the spousal testimonial privilege.1 In Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186, (1980), the Supreme Court determined that a husband could not prevent his wife, who had been granted immunity, from testifying against him. In support of its decision, the Court concluded as follows:
Our consideration of the foundations for the privilege and its history satisfy us that `reason and experience' no longer justify so sweeping a rule.... Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to...
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