Harris v. State

• Decision Date: 08 September 1977
• Docket Number: No. 925,925
• Citation: 37 Md.App. 180,376 A.2d 1144
• Parties: George (NMN) HARRIS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 180

37 Md.App. 180

376 A.2d 1144

George (NMN) HARRIS, Jr. v. STATE of Maryland.

No. 925.

Court of Special Appeals of Maryland.

Sept. 8, 1977.

Bradford C. Peabody, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Leroy Handwerger, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Michael Whalen, Asst. State's Atty. for Prince George's County on the brief, for appellee.

Argued before GILBERT, C. J., and MORTON and MOORE, JJ.

MORTON, Judge.

George Harris, Jr., appellant, was convicted by a jury in the Circuit Court for Prince George's County (Loveless, J., presiding) of assault with intent to murder and carrying a dangerous weapon openly with intent to injure. He was sentenced to consecutive prison terms of three and two years, respectively. The sole question presented in this appeal is whether the trial judge erred in admitting into evidence alleged confidential communications between appellant and his wife.

The record shows that on December 17, 1975, David N. P. Smith, a self-employed private detective and commissioned special officer, engaged in a telephone conversation with appellant concerning the triangular relationship of appellant, Smith and appellant's wife, Thelma Joyce Harris. Appellant testified that during the conversation he was threatened by Smith and dared to come to Smith's house to fight. Smith, on the other hand, denied challenging appellant, but rather claims that he told him not to call again.

Later that evening as Smith, wearing his service revolver and in uniform, was leaving his home for work as a night shift security guard, he observed Mrs. Harris's car approach with its headlights off and a shotgun barrel protruding from a rear window. He recognized appellant as the person holding the shotgun and appellant's wife as the driver of the vehicle. The shotgun was fired as the car passed him with several pellets striking him in the left wrist. Smith retaliated by emptying his six-shot service revolver.

Appellant testified that he went to Smith's house only in response to the alleged challenge made by Smith on the telephone earlier that evening. He stated that while he did have a shotgun with him it was not loaded since he intended only to fight Smith physically, not shoot him. Appellant related that upon arrival at Smith's residence he found Smith crouched beside his automobile waiting for him and that Smith opened fire first. According to appellant, it was not until after Mrs. Harris jumped from the car which she was driving, thereby causing it to roll onto a neighboring lawn, that he loaded his shotgun and returned fire.

Thelma Harris was called to the witness stand by the state. When advised by the trial judge that she could not be compelled against her will to testify against her husband, she stated that she wished to testify. Mrs. Harris stated that she was married to appellant at the time of the shooting but was not living with him and that, in fact, there had been several periods during their marriage when they were separated. She testified that on the date of the shooting appellant came to her house at 7:30 p. m. and engaged in the aforementioned telephone conversation with Smith. The following colloquy ensued at trial:

"Q. (Assistant State's Attorney) Did there come a time that you left your home?

A. (Mrs. Harris) Yes, there did.

Q. Under what circumstances?

A. Threatening."

Defense counsel objected to these questions on the ground that it violated the rule that spouses are incompetent to testify about confidential communications between them. The trial judge overruled appellant's objections and the direct examination of Mrs. Harris continued.

"Q. Mrs. Harris, when you referred to the fact that he threatened you, to whom are you referring?

A. My husband.

Q. How did he threaten you?

A. He wanted to know where David lived, and I wouldn't tell him, and he threatened to hurt me if I didn't, so we left."

Mrs. Harris testified that after appellant procured his shotgun the two of them traveled to Smith's home in her car. "He told me to pull down (in front of Smith's home) and blow" the horn. She stated that she jumped from the car and immediately thereafter the gun battle ensued.

Appellant contends that by allowing his wife to testify concerning the conversations they had at her apartment and in her car on the drive to Smith's residence the trial judge violated the provision of the Courts and Judicial Proceedings Article, § 9-105: "One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage." ¹

It would appear that the basis for the statute is the legislative policy which seeks to encourage and maintain marital harmony, confidence, peace and tranquility. See, e.g., McCormick on Evidence 161, 172 (2nd ed. 1972), 97 C.J.S. Witnesses § 266 (1957). This attitude was articulated in Mercer v. State, 40 Fla. 216, 24 So. 154, 157 (1898): ² "Society has a deeply-rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage; and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status."

It is apparent, however, that the statute does not define the scope of what communications are to be considered confidential. Nor does a search of the legislative...