People v. Love, Docket No. 60079

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: SANBORN
• Citation: 127 Mich.App. 596,339 N.W.2d 493
• 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

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.

Page 494

[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

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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

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that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant...