People v. Love, Docket No. 60079

• Decision Date: 19 October 1983
• Docket Number: Docket No. 60079
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Abner Morris LOVE, Defendant-Appellant. 127 Mich.App. 596, 339 N.W.2d 493
• Court: Court of Appeal of Michigan — District of US

Page 493

339 N.W.2d 493

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Abner Morris LOVE, Defendant-Appellant.

Docket No. 60079.

127 Mich.App. 596, 339 N.W.2d 493

Court of Appeals of Michigan.

Submitted Aug. 19, 1982.

Decided Aug. 1, 1983.

Released for Publication Oct. 19, 1983.

[127 MICHAPP 598] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief, Appeals, Asst. Pros. Atty., and Timothy A. Baughman, Asst. Pros. Atty., for the People.

Thaddeus K. Dean, Detroit, for defendant-appellant.

Before BRONSON, P.J., and MacKENZIE, and SANBORN ^*, JJ.

SANBORN, Judge.

The trial court convicted defendant of (1) second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, (2) kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, and (3) felony-firearm, M.C.L.A. Sec. 750.227b; M.S.A. Sec. 28.424(2), following a bench trial on May 5, 1981. The trial court sentenced defendant to two concurrent 5 1/2- to 20-year prison terms for the murder and kidnapping convictions and the mandatory consecutive two-year prison term for the felony-firearm conviction. Defendant appeals as of right.

The major witness presented by the prosecution was defendant's wife, Sue Love. Her testimony [127 MICHAPP 599] established that she was separated from defendant and had begun divorce proceedings at the end of October, 1980. Defendant arrived at Ms. Love's home after her afternoon work-shift sometime around 11 or 11:30 p.m. on October 30, 1980. He accused his estranged wife of "fooling around" with her co-worker, Johnny McQueen. Defendant telephoned Mr. McQueen to ask him to come over to his wife's house to discuss his relationship with defendant's wife. Mr. McQueen arrived about 20 minutes later.

Defendant, his wife, and Mr. McQueen went outdoors and into Mr. McQueen's car where they talked. Mr. McQueen sat in the front seat of the car with Ms. Love. Defendant sat in the back seat. After some discussion followed by a few moments of silence, defendant asked Mr. McQueen for a cigarette. After Mr. McQueen gave defendant a cigarette, defendant pulled a nickle-plated handgun out of his pocket and shot Mr. McQueen at close range in the temple. Defendant then pushed Mr. McQueen's body out of the car, took the driver's seat, pointed the gun in his wife's direction, and threatened to harm her if she tried to leave.

Defendant drove aimlessly for some time before stopping at a vacant house for about one-half hour. Defendant then forced his wife back into Mr. McQueen's automobile, drove aimlessly again, and went to the home of some friends after the car ran out of gas. Ms. Love testified that defendant did not threaten her during this period, but did threaten her initially.

Prior to Ms. Love's testimony, defense counsel had moved to suppress her testimony regarding the killing of McQueen. Defendant argued that her testimony regarding that crime was excludable [127 MICHAPP 600] under the spousal privilege statute. That statute 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 suits for divorce and in cases of prosecution for bigamy, in cases of prosecution for a crime committed against the children of either or both and where the cause of action grows out of a personal wrong or injury done by one to the other." M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162.

The trial court denied the motion finding a New Jersey case with a similar fact situation persuasive. State v. Briley, 53 N.J. 498, 251 A.2d 442 (1969). The trial court also found that defendant's spousal privilege had been waived when Ms. Love testified at the preliminary examination. At both the preliminary examination and trial, Ms. Love stated on the record that she did not wish to testify against her husband. Furthermore, defendant objected and stated that he did not consent to a waiver of the privilege.

Defendant's first argument in this appeal is that the trial court erred by compelling Ms. Love to testify against her husband regarding the second-degree murder charge. We disagree.

In Briley, relied upon by the trial court, the defendant husband shot and murdered a male companion of his estranged wife and then assaulted his wife with a gun. At that time, New Jersey had a statutory rule of evidence similar to Michigan's spousal privilege statute. New Jersey charged Briley with the murder of his wife's male companion and with an assault against his wife. The trial court compelled Briley's wife to testify regarding the murder charge as well as the assault [127 MICHAPP 601] against her over defendant's objection. The Briley Court held,

"If there is a single criminal event in which she and others are targets or victims of the husband's criminal conduct in the totality of the integrated incident and formal charges are made against the husband for some or all the offenses committed (one of which charges is for an offense against the spouse), the wife should be a competent and compellable witness against her husband at the trial of all the cases regardless of whether they are tried separately or in one proceeding. And, in this connection, it should be immaterial that the offense against the wife does not reach the same dimensions of criminality as it does against the third-party victim." Briley, 53 N.J. 507, 251 A.2d 446.

We find Briley persuasive.

In People v. Wadkins, 101 Mich.App. 272, 300 N.W.2d 542 (1980), this Court reviewed the historical underpinnings of the statutory spousal privilege. The spousal privilege does not have a constitutional foundation. Rather, its foundation was laid upon the historical notions that a defendant was incapable of testifying on his or her own behalf and the unity of husband and wife as one person in marriage. Wadkins, pp. 283-284, 300 N.W.2d 542. The modern justification for the spousal privilege is preservation of marital harmony. Wadkins, p. 283, 300 N.W.2d 542.

In Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), in which the Court held that a witness-spouse may testify against the defendant-spouse without the accused spouse's consent under the federal common law spousal privilege rule, the Court said:

"Testimonial exclusionary rules and privileges contravene the fundamental principle that ' "the public * * * has a right to every man's evidence." ' United [127 MICHAPP 602] States v. Bryan, 339 U.S. 323, 331 [94 L.Ed. 884, 70 S.Ct. 724, 730] (1950). As such, they must be strictly construed and accepted 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' Elkins v. United States, 364 U.S. 206, 234 [4 L.Ed.2d 1669, 80 S.Ct. 1437, 1454] (1960) (Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U.S. 683, 709-710 [41 L.Ed.2d 1039, 94 S.Ct. 3090, 3108-3109] (1974)." 445 U.S. pp. 50-51, 100 S.Ct. pp. 912-913.

In Wadkins, 101 Mich.App. p. 283, 300 N.W.2d 542, this Court said:

"The spousal privilege in Michigan, like the modern common law privilege, is narrow in its justification and ought to be correspondingly narrowly construed in its scope."

The Legislature employed remarkably broad language in drafting the victim-spouse exception quoted above. Because the spousal privilege should be narrowly construed, the exceptions to the spousal privilege stated in the statute should be construed broadly. Therefore, we hold that a crime committed against a third person as part of the same criminal transaction as a crime committed against a spouse "grows out of a personal wrong or injury" done to the spouse and is therefore within the exception. This result is consistent with the policy behind the statute. Marital harmony will not be significantly decreased if the victim-spouse is required to testify on two charges arising from the same criminal transaction rather than merely one.

This result is also in accord with the overwhelming weight of authority from other jurisdictions. See Briley, supra; State v. Wilson, 218 Or. 575, 346 P.2d 115 (1959); People v. Ford, 60 Cal.2d 772, 36 [127 MICHAPP 603] Cal.Rptr. 620, 388 P.2d 892 (1964); Wilkerson v. United States, 342 F.2d 807 (CA 8, 1965); Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976), State v. Thompson, 88 Wash.2d 518, 564 P.2d 315 (1977); People v. McGregor, Colo.App., 635 P.2d 912 (1981), and Brown v. Commonwealth, 223 Va. 601, 292 S.E.2d 319 (1982). In cases where the privilege has been held to prevent the spouse's testimony, the crime against the spouse was either not prosecuted in the same proceeding or not prosecuted at all. See Anno: Competency of One Spouse to Testify Against Other in Prosecution for Offense Against Third Party as Affected by Fact that Offense Against Spouse Was Involved in Same Transaction, 36 A.L.R.3d 820, and the cases discussed therein. Research has failed to uncover a single reported decision in which both crimes were prosecuted in the same proceeding and the spousal privilege was held to apply.

Defendant's second argument is that the trial court also erred by compelling Ms. Love to testify against her husband regarding the kidnapping charge where she was the victim and complainant. During oral argument before this Court, defendant relied upon People v. Sykes, 117 Mich.App. 117, 323 N.W.2d 617 (1982). In Sykes, a panel of this Court recognized that the spousal privilege statute excepts the testimonial privilege where the cause of action arises from a personal wrong or injury done by one spouse to the other. Sykes, p. 122, 323 N.W.2d 617. Nevertheless, the Sykes Court said:

"This exception was carved out for the benefit of the victim-spouse who wishes to testify regarding such a wrong or injury. We hold that the statutory exception to the spousal...