People v. Love

• Decision Date: 07 August 1986
• Docket Number: Docket No. 72384
• Citation: 391 N.W.2d 738,425 Mich. 691
• Court: Michigan Supreme Court
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Abner M. LOVE, Defendant-Appellant.

Page 738

391 N.W.2d 738

425 Mich. 691

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

Docket No. 72384.

Supreme Court of Michigan.

Argued Nov. 12, 1985.

Decided Aug. 7, 1986.

John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Deputy Chief, Civil and Appeals, Detroit, for the People.

Gerald S. Surowiec, Farmington Hills, for defendant-appellant.

CAVANAGH, Justice.

Defendant was convicted, following a bench trial, of second-degree murder ¹ and possession of a firearm during the commission of a felony ² for the killing of his estranged wife's friend, Johnny McQueen. He was also convicted for kidnapping ³ his wife, Sue Love, after committing the murder. Defendant received two 5 1/2- to 20-year sentences for the murder and kidnapping, and the mandatory two-year consecutive sentence for felony-firearm. The Court of Appeals affirmed. 127 Mich.App. 596, 339 N.W.2d 493 (1983). In response to defendant's request for review, this Court ordered appointment of counsel. We subsequently granted defendant's delayed application for leave to appeal. 422 Mich. 856 (1985).

The prosecution's case rested solely on the testimony of Mrs. Love, who did not wish to testify. Defendant presents two issues for our consideration:

1) Can a defendant assert the spousal privilege provided in M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162 to prevent his spouse from testifying as to an offense committed against a third person where the defendant also committed an offense against the witness-spouse during the same criminal transaction?

2) When the privilege does not bar spousal testimony, can the witness-spouse be compelled to testify against the defendant-spouse?

I

The Court of Appeals aptly summarized the facts:

"The major witness presented by the prosecution was defendant's wife, Sue Love. Her testimony 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 nickel-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 under the spousal privilege statute.

* * *

* * *

"The trial court denied the motion, finding a New Jersey case with a similar fact situation persuasive. State v. Briley, 53 NJ 498; 251 A2d 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. ⁴ Furthermore, defendant objected and stated that he did not consent to a waiver of the privilege." 127 Mich.App. 598-600, 339 N.W.2d 493.

The spousal privilege is contained in M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162, which states 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...." (Emphasis added.)

The statute vests the privilege of precluding spousal testimony in the nonwitness-spouse. The privilege can be asserted only while the spouses are legally married. It precludes all testimony regardless of whether the events at issue occurred before or during the marriage. People v. Wadkins, 101 Mich.App. 272, 282-283, 300 N.W.2d 542 (1980). ⁵

The parties agree that Mrs. Love could voluntarily testify concerning the kidnapping prosecution since it grew out of a personal wrong done to her by defendant. The Court of Appeals concluded that Mrs. Love could also testify concerning the murder and felony-firearm charges. The Court initially noted that the modern justification for the spousal privilege is preservation of marital harmony. However, the privilege excludes otherwise relevant and admissible evidence. Thus, the privilege should be narrowly defined, while the exceptions permitting testimony should be broadly construed. The Court concluded that a crime committed against a third person during the same criminal transaction as a crime committed against the witness-spouse "grows out of a personal wrong or injury done by one [spouse] to the other." The Court noted that requiring a victim-spouse to testify concerning all offenses, rather than only those committed against her, would not significantly decrease marital harmony. Moreover, this holding was in accord with the "overwhelming weight of authority from other jurisdictions." 127 Mich.App. 600-603, 339 N.W.2d 493. ⁶

The Court of Appeals further held that the trial court could compel Mrs. Love to testify. People v. Sykes, 117 Mich.App. 117, 323 N.W.2d 617 (1982), which had reached a contrary conclusion, was rejected. The Court reasoned that a spouse is equivalent to any other witness who may be compelled to testify under GCR 1963, 506. ⁷ A contrary conclusion would broaden the spousal privilege and "contravene[ ] the principle that the court should employ all rational means for ascertaining the truth." It was also noted that little marital harmony probably remained in this case since divorce proceedings were pending at the time of the incident and at trial. 127 Mich.App. 603-605, 339 N.W.2d 493.

II

The prosecution initially urges us to strike down M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162 because it conflicts with MRE 601:

"Unless the court finds after questioning a person that he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules."

The prosecution maintains that the spousal privilege statute renders persons incompetent to testify merely because they are married. In contrast, MRE 601 states that every person is competent, except in very limited circumstances. Since a rule of evidence is at issue and the statute conflicts with a court rule, the statute must fall. MRE 101; MCR 1.104; Perin v. Peuler (On Rehearing), 373 Mich. 531, 540-543, 130 N.W.2d 4 (1964); People v. Jackson, 391 Mich. 323, 336, 217 N.W.2d 22 (1974). We reject this argument.

The spousal privilege is a product of ancient common-law rules of incompetency. As explained in Trammel v. United States, 445 U.S. 40, 43-44, 100 S.Ct. 906, 908-909, 63 L.Ed.2d 186 (1980):

"The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that 'it hath been resolved by the Justices that a wife cannot be produced either against or for her husband.' [Citations omitted.] This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife.

"Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century."

See also People v. Zabijak, 285 Mich. 164, 175-176, 280 N.W. 149 (1938).

By 1846, Michigan had enacted laws which removed the absolute disqualification of spouses, while retaining the privilege of preventing spousal testimony. ⁸ The present statute on witness competency provides in pertinent part:

"No person shall be excluded from giving evidence on any matter, civil or criminal ... by reason of marital or other relationship to any party thereto...." M.C.L. Sec. 600.2158; M.S.A. Sec. 27A.2158.

MRE 601 reflects the substance of this statute.

It is more appropriate to describe the statutory spousal privilege as a true privilege, rather than a rule of incompetency. Trammel, 445 U.S. p. 44, 100 S.Ct. p. 909; McCormick, Evidence (2d ed.), Sec. 66, pp. 144-145. See also People v. Marble, 38 Mich. 117, 122-123 (1878). 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.

The prosecution also urges us to abrogate the statutory spousal privilege under our rule-making authority. We recognize that...