Kerlin v. State

• Decision Date: 30 June 1977
• Docket Number: No. 50211,50211
• Citation: 352 So.2d 45
• Parties: David KERLIN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 45

352 So.2d 45

David KERLIN, Petitioner, v. STATE of Florida, Respondent.

No. 50211.

Supreme Court of Florida.

June 30, 1977.

Joe M. Mitchell, Jr., Melbourne, and Kenneth A. Studstill, Titusville, for petitioner.

Robert L. Shevin, Atty. Gen., and A. S. Sid Johnston and Harry M. Hipler, Asst. Attys. Gen., for respondent.

KARL, Justice.

We have for review, on petition for writ of certiorari granted, the decision of the District Court of Appeal, Fourth District, in Kerlin v. State, reported at 351 So.2d 1026 (Fla. 4th DCA, 1976), which purportedly conflicts with Mercer v. State, 40 Fla. 216, 24 So. 154 (1898). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

After a first trial resulted in a hung jury, petitioner, David Kerlin, a/k/a David Giglietti, was convicted of second degree murder and was sentenced to thirty years imprisonment for the killing of one George Fitch, who was found in his bedroom shot to death by a .22 caliber rifle.

During the course of petitioner's trial, his wife, the state's chief witness who had been given immunity for her testimony, testified as to her observation of the criminal actions (non-verbal communications) of her husband surrounding the murder of Fitch.

Petitioner's wife testified that she and petitioner arrived in Florida in 1974 as hitchhikers from Virginia; that, upon arriving in Florida, they met Fitch and subsequently temporarily moved in with him in his home in Titusville; that, approximately one week prior to Fitch's death, she observed petitioner take from Fitch's mailbox what appeared to her to be a government check; and that petitioner gave her Fitch's savings book and, thereafter, requested it back, at which time she accompanied him to the bank where he filled out a withdrawal slip, approached the teller and received a sum of money. After being cautioned not to repeat any conversations her husband had had with her, she testified, as to her observations of petitioner's actions on the morning of the murder, that petitioner, she and the victim were alone in Fitch's house, several persons having left the house earlier that morning; that the defendant put down the newspaper he was reading, went into one of the two bedrooms, came out with a rifle which she identified as State's Exhibit Number 12, and walked into the victim's bedroom; that she heard a muffled shot; that petitioner came out of the bedroom and reloaded the gun in front of her; that he went back into her bedroom and that she heard another shot; that, momentarily, petitioner came out and said, "Let's go," at which they ran from the house. She observed that petitioner had the victim's wallet and checkbook and that he had blood on his face which did not appear to be occasioned by any cut or scratch.

To this testimony by the wife relating to petitioner's conduct, the defense did not expressly object when the testimony was being taken. There does appear in the record a vague "stipulation" which applied to petitioner's first trial, to the effect that, before the jury was sworn during the course of the first trial, the defense made a motion in limine whereby he made objection to the possibility of testimony being elicited by the state attorney from Sandra Kreps Giglietti, the wife of the petitioner, as to matters protected as privileged communications between husband and wife. The stipulation further provided that the state attorney was cautioned not to inquire of said witness as to matters protected as privileged communications between husband and wife.

Petitioner testified at trial that he stole the check belonging to Fitch; that his wife knew of the stealing of the check and voluntarily went with him to the bank to cash it; that he was living at Fitch's house the morning of the murder; but that he did not murder Fitch. On cross-examination, he testified that he did not get along well with Fitch and argued with him on several occasions, and that he forged Fitch's signature. He further testified on cross-examination as follows:

"Q Now you heard her say that you walked into the bedroom; did you walk into the bedroom after you read the paper?

"A Before we left?

"Q Um-hmm.

"A I'm not sure if I walked into the bedroom; I think she walked into the bedroom. There's a possibility that I could have; I'm not absolutely sure.

"Q Now, you heard her say that you came out of the bedroom with that rifle, you saw that rifle, didn't you did you get a chance to look at that rifle?

"A Yes, sir. I've seen it.

"Q Do you recognize that rifle as being Steve Proctor's rifle?

"A It looks like the same one, yes, sir.

"Q That's the rifle you fired on one occasion with Steve Proctor?

"A I believe so.

"Q You heard her say that you came out of the bedroom with that rifle?

"A Yes, sir.

"Q Did you at any time handle that rifle on that Sunday?

"A No, sir. I did not.

"Q Do you know where that rifle was that Sunday?

"A As far as I know, it was behind the door.

"Q Why do you say it was behind the door?

"A It was always kept behind the door.

"Q Did you see it behind the door that Sunday?

"A I didn't happen to look behind the door that Sunday, no.

"Q Were you ever in George's room that Sunday morning?

"A No, sir.

"Q You were not?

"A No.

"Q When you went to bed Saturday, was the gun behind the door of George's room?

"A I do not know.

"Q When was the last time you'd seen the gun prior to going to bed Saturday night?

"A I couldn't tell you the specific time.

"Q Okay. Now, you heard, you've heard Sandra say that after you came out of the bedroom with that gun, that you said something to her, you heard her say that?

"A Yes, I did.

"Q Didn't you, in fact, say that George was going to cause trouble about the check; you were going to have to kill him?

"A No, sir."

It was only at this point that the defense objected to the prosecutor's remark. Although all the activities of petitioner relative to the stolen check had been explored on direct examination, the basis of his objection was that this remark constituted an alleged violation of the confidential relationship between a man and his wife. After lengthy debate, the trial judge denied the objection, and on further cross-examination, petitioner could not recall the content of any conversation with his wife.

The District Court of Appeal, Fourth District, affirmed the judgment and sentence "on the authority of Gates v. State, 201 So.2d 786 (3d D.C.A., Fla.1967) and Ross v. State, 202 So.2d 582 (1st D.C.A., Fla.1967)."

This cause brings before us the application of the privilege for communications between husband and wife and, more particularly, the question of whether this privilege extends to observation of criminal conduct (actions) of one spouse by the other.

In this Court's early decision of Mercer v. State, supra, it was held that written communications between a husband and wife are inherently privileged from the character of the communication itself, and the privilege for marital communications protects them from introduction into evidence. Therein, this Court explained the rationale or public policy of the privilege to be the preservation of the peace, good order and limitless confidence between the heads of the family so as to promote a well-ordered, civilized society and opined:

"The matter that the law prohibits either the husband or wife from testifying to as witnesses includes any information obtained by either during the marriage, and by reason of its existence. It should not be confined to mere statements by one to the other, but embraces all knowledge upon the part of either obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known. And the same rule prevails in full force even after the marital relation has been dissolved by death or divorce. Where the incompetency as witnesses of husband and wife on the ground of interest has been removed by statute, as is the case here, either of them may testify, for or against the other, to any fact, the knowledge of which was acquired by them independently of their marriage relation, in any manner not involving the confidence growing out of the marriage relation. As Mr. Greenleaf puts it: 'The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires cannot be afterwards divulged in testimony, even though the other party be no longer living.' 1 Greenl. Ev. (15th Ed.) §§ 254, 334, 337; . . . ." ¹ (Emphasis supplied.)

Even at common law, this communications privilege was recognized to be subject to limitations and exceptions which grew out of necessity, inter alia, to avoid harsh injustice to the excluded spouse which would follow from a strict enforcement of the rule. Explaining the nature of the exception, Dean Wigmore states in Wigmore on Evidence, Section 2239:

"The notion of necessity, indeed, might commendably have been a broader one; the necessity of doing justice to other persons in general, when the spouse's testimony was indispensable, would have been at least as great. But the common lawyers here kept their eyes upon the ground, and did not allow their survey to exceed the range of immediate and unavoidable vision. Anyone could see that an absolute privilege in a husband to close the mouth of the wife in testimony against him would be a vested license to injure her in secret with complete immunity. This much the common lawyers saw, and were willing to concede. Just how far the concession went, in concrete cases, was never precisely settled. It was given varying definitions at different times. It certainly extended to causes involving corporal violence to the wife, and it certainly did not extend to all wrongs done to the wife. In modern statutes the spirit of the exception has usually been invoked to...