People v. Lucero, No. 85SC318

• Docket Nº: No. 85SC318
• Citation: 747 P.2d 660
• Case Date: December 21, 1987
• Court: Supreme Court of Colorado

Page 660

747 P.2d 660 The PEOPLE of the State of Colorado, Petitioner,
v.
Emilio J. LUCERO, Respondent. No. 85SC318. Supreme Court of Colorado,
En Banc. Dec. 21, 1987.
Rehearing Denied Jan. 11, 1988.

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Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Virginia Byrnes Horton, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, State Public Defender, Janet Y. Fullmer, Linda Perkins, Deputy State Public Defenders, Denver, for respondent.

LOHR, Justice.

The defendant, Emilio J. Lucero, was convicted of attempted robbery of the elderly and conspiracy to commit robbery of the elderly. He appealed, contending that the trial court had erred in receiving the testimony of Rosemary Trujillo, who claimed to be the defendant's common law wife. The defendant based his objection to the admission of such evidence upon section 13-90-107(1)(a), 6 C.R.S. (1973), which creates a privilege with respect to testimony by one spouse for or against the other. The Colorado Court of Appeals held that, contrary to the trial court's ruling, the evidence established a common law marriage and that admission of Trujillo's testimony violated section 13-90-107(1)(a) and was reversible error. We conclude that the trial court's ruling lacks sufficient detail to enable us to determine whether that court applied the correct standards in determining the existence of a common law marriage, and that the court of appeals erred in determining this issue as a matter of law on appeal. We reverse the judgment of the court of appeals and return the case to that court with directions to remand it to the

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district court for further proceedings as detailed in this opinion.

I.

On October 20, 1982, Emilio J. Lucero was charged by information filed in El Paso County with three counts of attempted first-degree murder, one count of attempted robbery of the elderly, one count of conspiracy to commit robbery of the elderly, and one count of crime of violence. ¹ The charges were based on an incident in which a man had approached an elderly couple in a K mart parking lot and attempted to grab the wife's purse. He struggled with the husband momentarily and then ran. During the course of this episode and again later, while being pursued by a citizen who had witnessed the attempted robbery, the man fired several shots from the pistol he was carrying. A jury trial commenced on February 7, 1983, and resulted in guilty verdicts to the charges of attempted robbery of the elderly and conspiracy to commit robbery of the elderly. During the second day of the trial, the prosecution called Rosemary Trujillo to the witness stand. The prosecutor asked how she knew the defendant, and she replied, "Common law." When asked what she meant by "common law," she answered, "We were living together." She then testified that she and the defendant had lived together for about five years, from 1976 to 1981, and that one child, Emilio Trujillo, had been born to them.

At this point, defense counsel approached the bench and objected to the admission of Trujillo's testimony based on the marital privilege set forth in section 13-90-107(1)(a). He requested an opportunity to make an offer of proof outside the presence of the jury, and the judge agreed to allow him to do so during the next recess. The prosecution was then permitted to continue its direct examination. Trujillo testified that she owned a white 1973 Mercury, which was the same make and model as a car involved in the crime, and that she gave Lucero permission to use her car on October 6, 1982, the date on which the charged offenses occurred. She also stated that she did not have any guns and that to her knowledge there were no bullets in the car on that date. ²

When the court took a brief recess, the defense was allowed to make its offer of proof with respect to the alleged common law marriage between Trujillo and Lucero. The offer of proof consisted solely of the testimony of Rosemary Trujillo. She testified that she considered herself married to Lucero, and that the two of them held themselves out to friends as being married. She answered, "yes," to the question, "[a]nd do you know if [Lucero] agreed with your analysis that the two of you were married?" Trujillo also repeated her earlier testimony about the duration of her relationship with Lucero and about the birth of their child, who was five years old at the time of the trial.

The trial court denied the objection to the admission of Trujillo's testimony, finding that there was insufficient proof of a marital relationship and that the witness's testimony did not pertain to any conversation between Trujillo and Lucero. Therefore, the trial court reasoned, the testimony was not protected by the marital privilege. The defendant was subsequently convicted of attempted robbery of the elderly, §§ 18-2-101, 18-4-301 and -304, 8 C.R.S. (1973), and of conspiracy to commit robbery of the elderly, §§ 18-2-201, 18-4-301 and -304, 8 C.R.S. (1973).

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The court of appeals reversed the convictions and remanded the case for a new trial, holding that the uncontradicted evidence established, as a matter of law, the existence of a common law marriage between Lucero and Trujillo, and that section 13-90-107(1)(a) provides an absolute privilege against testimony by one spouse for or against the other absent the consent of the non-testifying spouse. People v. Lucero, 707 P.2d 1040, 1042 (Colo.App.1985). We granted certiorari to determine whether a common law marriage was established by the evidence presented in this case and whether the testimonial privilege incorporated in section 13-90-107(1)(a) is an absolute bar to adverse testimony by a defendant's spouse in a criminal case without the consent of the defendant.

II.

A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship. See H. Clark, Law of Domestic Relations 47-50 (1968); Mills, Common Law Marriage in Colorado, 16 Colo. Law. 252 (1987). This court suggested both these requirements when it first recognized common law marriage in Klipfel's Estate v. Klipfel, 41 Colo. 40, 46, 92 P. 26, 27-28 (1907):

[I]n this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding.

(quoting Taylor v. Taylor, 10 Colo.App. 303, 304-05, 50 P. 1049, 1049 (1897)). In Taylor v. Taylor, the first Colorado Court of Appeals ³ also recognized that "[t]he great weight of authority is that the contract alone is not sufficient, unless it is followed by its consummation, that is, by cohabitation as husband and wife." 10 Colo.App. at 305, 50 P. at 1049.

Although language in some of our cases could be read as suggesting that mutual consent or agreement is the only essential element of a common law marriage, ⁴ we have almost uniformly required that such consent or agreement be manifested by conduct that gives evidence of the mutual understanding of the parties. See, e.g., Clark v. Clark, 123 Colo. 285, 229 P.2d 142 (1951); Moffat Coal Co. v. Industrial Comm'n, 108 Colo. 388, 118 P.2d 769 (1941); Clayton Coal Co. v. Industrial Comm'n, 93 Colo. 145, 25 P.2d 170 (1933); Davis v. People, 83 Colo. 295, 264 P. 658 (1928); Foley v. Gavin, 76 Colo. 286, 230 P. 618 (1924); In re Matteote's Estate, 59 Colo. 566, 151 P. 448 (1915). We affirm today that such conduct in a form of mutual public acknowledgment of the marital relationship is not only important evidence of the existence of mutual agreement but is essential to the establishment of a common

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law marriage. The reason for this requirement is to guard against fraudulent claims of common law marriage. As Professor Clark suggests in his treatise on domestic relations, "[a]dding the requirement of open marital cohabitation gives assurance that some objective evidence of the relationship will have to be introduced in every case to establish that the parties did consider themselves husband and wife." H. Clark, Law of Domestic Relations 48 (1968).

The very nature of a common law marital relationship makes it likely that in many cases express agreements will not exist. The parties' understanding may be only tacitly expressed, and the difficulty of proof is readily apparent. We have recognized that "the agreement need not have been in words," Smith v. People, 64 Colo. 290, 293, 170 P. 959, 960 (1918); see also Rocky Mountain Fuel Co. v. Reed,...