People v. Hamacher, Docket No. 80765

• Decision Date: 08 July 1986
• Docket Number: Docket No. 80765
• Citation: 389 N.W.2d 477,150 Mich.App. 671
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Allen HAMACHER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 477

389 N.W.2d 477

150 Mich.App. 671

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Allen HAMACHER, Defendant-Appellant.

Docket No. 80765.

Court of Appeals of Michigan.

Submitted Dec. 11, 1985.

Decided April 9, 1986.

Released for Publication July 8, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div. and Edwin R. Brown, Asst. Pros. Atty., for People.

Bennett S. Engelman, Burton, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and T.M. BURNS and HOOD, JJ.

PER CURIAM.

Defendant was convicted following a jury trial of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c; M.S.A. Sec. 28.788(3). He was sentenced to prison for a term of incarceration of not less than 10 nor more than 15 years. Defendant appeals as of right.

The victim of the sexual abuse was defendant's wife's eight-year-old daughter from a previous marriage. Defendant's wife testified that she confronted the defendant after her daughter told her about the incident which gave rise to the instant charges. Defendant replied that he had made sexual advances towards the girl because she was willing to cuddle with him at a time when the mother refused to do so. This testimony was repeated. Defendant's wife also testified that she told defendant's sister that he admitted the act.

On appeal, defendant claims that this testimony concerned marital communications and that it should have been excluded at trial pursuant to M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162. We disagree.

In Michigan, the two common-law husband-wife privileges are codified in M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162, which provides in pertinent part:

"A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except * * * in cases of prosecution for a crime committed against the child of either or both * * *; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage * * *." M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162.

This statutory language codifies the common-law "spousal privilege" and the "confidential communication privilege". The "spousal privilege" applies to any testimony of a spouse without the consent of the other so long as the parties continue to be legally married at the time of the suit. It is, however, subject to those exceptions enumerated in the statute. On the other hand, the confidential communication privilege applies to confidential communications made within the marital relationship irrespective of the marital status of the parties at the time of the trial. People v. Wadkins, 101 Mich.App. 272, 282, 300 N.W.2d 542 (1980).

The trial court admitted defendant's wife's testimony concerning defendant's communications to her based upon the exception in the statute for criminal prosecutions for crimes committed against the children of either spouse. The trial court's decision was based upon People v. Clarke, 366 Mich. 209, 214, 114 N.W.2d 338 (1962), wherein the Supreme Court stated:

"As a matter of public policy, it is clear the statute was designed to protect communications between husband and wife during marriage. The exception was designed to permit prosecution for crimes committed within the family unit. Such crimes normally would have no other witnesses and would go unpunished in the event the exception in the statute were not permitted to operate."

We note that the language relied upon by the trial court is dicta and we question whether this exception is applicable to the marital communications privilege. Nevertheless, we hold that the testimony was properly admitted.

In People v. Salisbury, 218 Mich. 529, 532-533, 188 N.W. 340 (1922), our Supreme Court explained the purpose of this privilege:

"The exclusion of such communications when made in confidence between persons occupying the intimate relation of husband and wife is predicated on the necessity of fostering such relation and the greater injury likely to result from permitting their disclosure than the benefit to be gained thereby. Confidence and secrecy are presumed to have been intended in such marital communications and the statute absolutely prohibits their divulgence by either of the parties as witnesses 'without the consent of both.' "

At common law "[t]he rule of necessity * * * created exceptions to the general rule making husband and wife incompetent witnesses in cases involving the other, such exceptions being partly for the protection of the wife in her life and liberty, and partly for the sake of public justice". People v. Zabijak, 285 Mich. 164, 176, 280 N.W.2d 149 (1938).

The Supreme Court also recognized that

"The privilege is in derogation of the general rule that all persons may be compelled to testify...