People v. Hamacher

Citation408 N.W.2d 549,160 Mich.App. 759
Decision Date17 July 1987
Docket NumberDocket No. 99819
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Allen HAMACHER, Defendant-Appellant. 160 Mich.App. 759, 408 N.W.2d 549
CourtCourt of Appeal of Michigan (US)

[160 MICHAPP 760] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., and Edwin R. Brown, Asst. Pros. Atty., for the People.

Richard A. Hamacher, pro. per.

Before HOLBROOK, P.J., and MAHER 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 from ten to fifteen years imprisonment and appealed as of right. We affirmed in a published, per curiam opinion, finding that the trial court did not err in denying defendant's motion to preclude certain testimony by his wife. People v. Hamacher, 150 Mich.App. 671, 389 N.W.2d 477 (1986). Defendant appealed to the Supreme Court, [160 MICHAPP 761] and that Court vacated our judgment and remanded to us for reconsideration on the ground that the testimony was inadmissible as privileged, confidential communication between spouses. 428 Mich. 833, 402 N.W.2d 484 (1987).

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 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 agree.

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:

"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...."

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 [160 MICHAPP 762] 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."

However, the Clarke Court was referring to the spousal privilege portion of the statute, not the confidential communication privilege portion. In People v. Salisbury, 218 Mich. 529, 532-33, 188 N.W. 340 (1922), our Supreme Court explained the purpose of the confidential communication...

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3 cases
  • People v. Hamacher, Docket No. 81202
    • United States
    • Michigan Supreme Court
    • March 30, 1989
    ...150 Mich.App. 671, 675, 389 N.W.2d 477 (1986).4 People v. Hamacher, 428 Mich. 884, 402 N.W.2d 484 (1987).5 People v. Hamacher (On Remand), 160 Mich.App. 759, 763, 408 N.W.2d 549 (1987).6 There had been an earlier version of the spousal privilege, phrased quite differently. 1846 R.S., ch. 10......
  • People v. Vermeulen
    • United States
    • Michigan Supreme Court
    • March 8, 1989
    ... ...         John D. Lazar, Royal Oak, and Lawrence G. Kaluzny, Birmingham, for defendant-appellee ...         LEVIN, Justice ...         We granted leave to appeal in this case, consolidated on appeal with People v. Hamacher, 432 Mich. 157, 438 N.W.2d 43 (1989), to consider the application of the spousal communication privilege set forth ... in the Revised Judicature Act, Sec. 2162. 1 We conclude that the Court of Appeals correctly held that the privilege bars the testimony of the defendant's wife in this case ... ...
  • People v. Hamacher, 81202
    • United States
    • Michigan Supreme Court
    • October 6, 1987
    ...Defendant-Appellee. No. 81202. 429 Mich. 859, 412 N.W.2d 922 Supreme Court of Michigan. Oct. 6, 1987. ORDER Prior report: 160 Mich.App. 759, 408 N.W.2d 549. On order of the Court, the motion for early decision is treated as a motion for immediate consideration, and it is GRANTED. The applic......

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