People v. Hamacher, Docket No. 81202

CourtSupreme Court of Michigan
Writing for the CourtLEVIN; LEVIN; BOYLE; RILEY, C.J., and GRIFFIN
Citation432 Mich. 157,438 N.W.2d 43
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Allen HAMACHER, Defendant-Appellee. Calendar
Docket NumberDocket No. 81202,No. 2
Decision Date30 March 1989

Page 43

438 N.W.2d 43
432 Mich. 157
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Richard Allen HAMACHER, Defendant-Appellee.
Docket No. 81202.
Calendar No. 2.
Supreme Court of Michigan.
Argued April 6, 1988.
Decided March 30, 1989.

Page 44

[432 Mich. 160] Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., Edwin R. Brown, Asst. Pros. Atty., Flint, for plaintiff-appellant.

Bennett S. Engelman, P.C., Burton, for defendant-appellee.

OPINION

LEVIN, Justice.

We granted leave to appeal in this case, consolidated on appeal with People v. Vermeulen, 432 Mich. 32, 438 N.W.2d 36 (1989), to consider the application of the spousal communication privilege set forth in Sec. 2162 of the Revised Judicature Act. 1 We conclude that the Court of Appeals correctly held that the privilege bars the [432 Mich. 161] testimony of the defendant's wife in this case and affirm the decision of the Court of Appeals.

I

Section 2162 of the RJA provides two distinct privileges. The first, the spousal privilege, is only applicable when the witness and the spouse are married at the time of trial. This privilege bars one spouse from testifying for or against the other without the other's consent except in (1) actions for divorce, (2) prosecutions for bigamy or for a crime committed against the children of either or both, (3) actions growing out of a personal wrong or injury done by one to the other or the refusal or neglect to furnish the spouse or children with suitable support, (4) cases of desertion or abandonment, and (5) certain cases relating to marriage and title to property.

[432 Mich. 162] The second privilege, the communication privilege, bars one spouse from testifying "as to any communications made by one to the other during the marriage" without the consent of the other. The communication privilege applies whether the testimony is sought "during the marriage or afterwards," as long as the communication occurred during the marriage. Section 2162 of the RJA states no exceptions with respect to the communication privilege.

II

Hamacher was convicted of second-degree criminal sexual conduct with his stepdaughter who was eight years old at the time of the alleged acts. At trial, the court denied his motion to suppress testimony by his wife concerning statements Hamacher allegedly made regarding his conduct with

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his stepdaughter. 2 The Court of Appeals initially affirmed Hamacher's conviction. It ruled that the wife's testimony was properly admitted because the Legislature intended that the exception to the general spousal privilege for prosecutions concerning crimes committed against either spouse's children be applicable to the communication privilege and because the defendant and his wife were "in the process of divorce at the time of trial" and therefore "strict adherence to the rule would not further its purpose of fostering the marital relationship." 3

This Court vacated the judgment of the Court of [432 Mich. 163] Appeals and remanded the cause to it for reconsideration, stating that Sec. 2162 of the RJA "contains no exception to the privilege regarding communications between a husband and wife where the husband and wife are separated or are in the process of obtaining a divorce. The defendant and his wife remained husband and wife at the time the communication in question was allegedly made." 4

On remand, the Court of Appeals held that "the admission of defendant's wife's statements in the instant case is in contravention of the confidential communication privilege," stating that "the statute makes no exception for divorced or separated couples." 5

On appeal in this Court, the prosecutor contends that (a) the statutory exceptions applicable to the spousal privilege apply or should be made applicable by this Court to the communication privilege, and (b) Hamacher waived his right to object to the admission of his wife's testimony at trial because he failed to object to her testimony at the preliminary examination.

III

When the statutory privileges that are now codified in Sec. 2162 of the RJA were originally enacted in 1861, there were no exceptions. 6 The general spousal privilege, the communication privilege, and an adultery "preclusion" were clearly separated by semicolons:

"A husband shall not be examined as a witness for or against his wife, without her consent, nor a [432 Mich. 164] wife for or against her husband, without his consent; nor shall either, during the marriage or afterwards, be, without the consent of both, examined as to any communication made by one to the other during the marriage; but in any action or proceedings instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify." 1861 P.A. 125.

When the exceptions were added, 7 they were set [432 Mich. 165] forth immediately following the

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general spousal privilege. When the exception for bigamy prosecutions was added as a separate section, the Legislature expressly provided that this exception did not apply to the communication privilege:

"That a husband may testify for or against his wife without her consent, and a wife may testify for or against her husband without his consent, in all criminal prosecutions, for bigamy: Provided, however, That nothing herein contained shall be so construed as to permit a husband or wife to testify against the other without the consent of both concerning any communications made by one to the other during the marriage." 8

The Judicature Act of 1915 9 added an exception for divorce cases following the general spousal privilege and included the bigamy exception in that portion of the statute. At the same time, the punctuation was revised and the language of the marital privileges took its present form. An exception to the general spousal privilege for the prosecution of crimes against the children of one or both spouses was added in 1939. 10

The evolution of Sec. 2162 of the RJA and its clear and unambiguous language indicate that the enumerated exceptions apply only to the general [432 Mich. 166] spousal privilege and not to the communication privilege. The Legislature has frequently amended the statute when it was deemed necessary. "Privileges are governed by common law, except as modified by statute or court rule. MRE 501. Since there is no court rule governing marital privileges, the statute controls." People v. Love, 425 Mich. 691, 699, 391 N.W.2d 738 (1986) (opinion of Cavanagh, J.).

We have considered Hunt v. Eaton, 55 Mich. 362, 366, 21 N.W. 429 (1884), discussed in the dissenting opinion, 11 where this Court mentioned a number of considerations in concluding that the communication privilege "includes every communication between [husband and wife] other than such as involves the title to the separate property of either when it becomes necessary to resort to litigation to obtain, secure or protect the rights of either to such separate property."

In Vermeulen, 432 Mich. at p. 39, 438 N.W.2d 36, this Court said that "only confidential communications are protected by the communication privilege," and that "the nature and circumstances of the communication may be considered in determining whether the communication was confidential."

It has been said that among the factors that "may serve to rebut a claim that confidentiality was intended" 12 is "that the communication relates to business transactions,"

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such as "business agreements between the spouses, or about business matters transacted by one spouse as agent for the other, or about property or conveyances." 13 Professor McCormick explained that "[u]sually such [432 Mich. 167] statements relate to facts which are intended later to become publicly known." 14

In Hagerman v. Wigent, 108 Mich. 192, 194, 65 N.W. 756 (1896), this Court anticipated McCormick's rationale when it based its holding, that a husband could testify his wife had delivered a mortgage to him with instructions to deliver it after her death to her nephews, who were the mortgagors, on its assessment that the circumstances "involved an expectation on her part that the communication would be disclosed," and therefore it "cannot be said to have been confidential." 15

Implicit in the assumption of a legal obligation to repay is the intent that either party to the transaction may testify concerning communications relating to the transaction should the lending spouse commence an action to enforce the legal obligation that arose when money was borrowed.

The statement Hamacher allegedly made to his wife did not concern a transaction "intended later to become publicly known."

IV

The prosecutor contends that Hamacher's failure to object to his wife's testimony at the preliminary examination precluded objection at the trial. The prosecutor contends alternatively that Hamacher's wife was rendered "unavailable" when he invoked the communication privilege, 16 and, [432 Mich. 168] therefore, her prior recorded testimony at the preliminary examination could have been read to the jury pursuant to MRE 804(b)(1). 17

The prosecutor did not raise the waiver issue or his alternative claim until he filed his brief in this Court. He thus failed to preserve either the waiver issue or his alternative claim for appeal. 18

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[432 Mich. 169] V

We conclude that the Court of Appeals correctly held that the wife's testimony was inadmissible. We affirm the judgment of the Court of Appeals and remand the cause to the trial court for a new trial.

BRICKLEY, ARCHER and CAVANAGH, JJ., concur.

LEVIN, Justice (separate opinion).

The Court's conclusion that the prosecutor failed to preserve either the waiver issue or his alternative claim for appeal makes it unnecessary for the Court to consider whether the failure of Hamacher's lawyer to object to his wife's testimony at the preliminary examination precluded objection at the trial.

The dissenting opinion discusses case law concerning waiver of...

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23 practice notes
  • People v. Stanaway, Nos. 92269
    • United States
    • Supreme Court of Michigan
    • January 1, 1994
    ...v. Howe, 445 Mich. 920, 520 N.W.2d 338 (1994); Howe v. Detroit Free Press, 440 Mich. 203, 487 N.W.2d 374 (1992); People v. Hamacher, 432 Mich. 157, 438 N.W.2d 43 (1989); People v. Vermeulen, 432 Mich. 32, 438 N.W.2d 36 (1989). In these cases, however, the failure to engage in a discrete ana......
  • People v. Davis, Docket No. 220087.
    • United States
    • Court of Appeal of Michigan (US)
    • June 14, 2002
    ...therefore, it has not been preserved for review. People v. Stanaway, 446 Mich. 643, 694, 521 N.W.2d 557 (1994); People v. Hamacher, 432 Mich. 157, 168, 438 N.W.2d 43 (1989). Nonetheless, because defendant claims that this search violated his fundamental constitutional rights, People v. Gran......
  • People v. McGraw, Docket No. 132876.
    • United States
    • Supreme Court of Michigan
    • July 28, 2009
    ...not required to, choose not to raise and address the argument on its own. This is hardly a "novel view." See, e.g., People v. Hamacher, 432 Mich. 157, 168, 438 N.W.2d 43 (1989), which refused to address the prosecution's waiver argument because the "prosecutor did not raise the waiver issue......
  • People v. Fisher, No. 92897
    • United States
    • Supreme Court of Michigan
    • June 30, 1993
    ...without the consent of both, be examined as to any communication made by one to the other during the marriage...." In People v. Hamacher, 432 Mich. 157, 161-162, 438 N.W.2d 43 (1989), this Court distinguished between the spousal privilege and the marital communication "Section 2162 of the R......
  • Request a trial to view additional results
23 cases
  • People v. Stanaway, Nos. 92269
    • United States
    • Supreme Court of Michigan
    • January 1, 1994
    ...v. Howe, 445 Mich. 920, 520 N.W.2d 338 (1994); Howe v. Detroit Free Press, 440 Mich. 203, 487 N.W.2d 374 (1992); People v. Hamacher, 432 Mich. 157, 438 N.W.2d 43 (1989); People v. Vermeulen, 432 Mich. 32, 438 N.W.2d 36 (1989). In these cases, however, the failure to engage in a discrete ana......
  • People v. Davis, Docket No. 220087.
    • United States
    • Court of Appeal of Michigan (US)
    • June 14, 2002
    ...therefore, it has not been preserved for review. People v. Stanaway, 446 Mich. 643, 694, 521 N.W.2d 557 (1994); People v. Hamacher, 432 Mich. 157, 168, 438 N.W.2d 43 (1989). Nonetheless, because defendant claims that this search violated his fundamental constitutional rights, People v. Gran......
  • People v. McGraw, Docket No. 132876.
    • United States
    • Supreme Court of Michigan
    • July 28, 2009
    ...not required to, choose not to raise and address the argument on its own. This is hardly a "novel view." See, e.g., People v. Hamacher, 432 Mich. 157, 168, 438 N.W.2d 43 (1989), which refused to address the prosecution's waiver argument because the "prosecutor did not raise the waiver issue......
  • People v. Fisher, No. 92897
    • United States
    • Supreme Court of Michigan
    • June 30, 1993
    ...without the consent of both, be examined as to any communication made by one to the other during the marriage...." In People v. Hamacher, 432 Mich. 157, 161-162, 438 N.W.2d 43 (1989), this Court distinguished between the spousal privilege and the marital communication "Section 2162 of the R......
  • Request a trial to view additional results

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