People v. Spencer, Docket No. 64843

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: SHEPHERD; COOPER
• Citation: 343 N.W.2d 607,130 Mich.App. 527
• Docket Number: Docket No. 64843
• Decision Date: 06 February 1984
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duane Robert SPENCER, Defendant-Appellant. 130 Mich.App. 527, 343 N.W.2d 607

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343 N.W.2d 607 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Duane Robert SPENCER, Defendant-Appellant. Docket No. 64843.
130 Mich.App. 527, 343 N.W.2d 607 Court of Appeals of Michigan. Submitted June 16, 1983.
Decided Nov. 21, 1983.
Released for Publication Feb. 6, 1984.

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[130 MICHAPP 529] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Artis M. Noel, Pros. Atty., and Jo Ellen O'Connor, Asst. Pros. Atty., for the People.

State Appellate Defender by Ronald J. Bretz, Lansing, for defendant-appellant.

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[130 MICHAPP 530] Before KELLY, P.J., and SHEPHERD and COOPER, ^* JJ.

SHEPHERD, Judge.

Defendant was convicted by a jury of breaking and entering with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and of being a fourth-time felony offender, M.C.L. Sec. 769.12: M.S.A. Sec. 28.1084, for which he was sentenced to a term of from 15 to 65 years imprisonment. On appeal, defendant raises two allegations of error and argues that reversal of his convictions is necessary on both. We agree.

FACTS

In the early morning hours of July 7, 1981, the restaurant of the Rainbow Motel in Tuscola County was broken into and several items taken, including tools and two television sets. Defendant, who was on parole at the time, lived in an apartment at the motel with his wife and two children.

Thomas Caruthers, who had stayed off and on at the motel with defendant and his family, was arrested in October, 1981, for the unrelated theft of defendant's wife's purse and other property belonging to defendant and another resident of the motel. Shortly after his arrest, Caruthers confessed to the July 7 breaking and entering at the Rainbow Motel and also implicated defendant and his wife in that crime.

Approximately one month later, Caruthers retracted his implication of defendant and his wife, attributing his accusation to his anger at the Spencers for pressing charges for the theft of their property. In a subsequent statement, he also denied his own involvement in the breaking and [130 MICHAPP 531] entering. At trial, however, Caruthers was the chief prosecution witness and testified that he and the Spencers had committed the crime. Caruthers had previously pled guilty to larceny in a building as part of a plea bargain in which he was promised a sentence of no more than one year in the county jail and the dismissal of two other larceny charges in return for his testimony against the Spencers in the instant case.

Defendant's wife was tried separately and had her own appointed counsel.

Prior to trial, the trial judge granted defendant's motion to suppress evidence of his prior convictions on the ground that they were not admissible under MRE 609 because they were similar to the charge pending against him and would be more prejudicial than probative. All three prior convictions were for breaking and entering with intent to commit larceny. The trial judge also granted defendant's motion to suppress all statements made by defendant's wife on the basis of marital privilege and because, as a co-conspirator, her post-crime statements constituted inadmissible hearsay.

On appeal, it is claimed that comments by the prosecutor violated defendant's exercise of his marital privilege and that irrelevant, prejudicial evidence was improperly admitted. These claims will be considered serially below.

I

Prior to trial, the trial judge entered an order granting defendant's motion to suppress any statements made by his wife. At trial, defendant presented an alibi defense, claiming that he was in his apartment with his wife at the time the crime [130 MICHAPP 532] occurred. During rebuttal, the prosecutor pointed out to the jury the lack of corroboration of defendant's alibi, and stated: "Only one person knows what they were doing at 1:30 in the morning * * *." Before the prosecutor could finish his statement, defense counsel objected, stating that he was anticipating what was coming and that the prosecutor had to "stick to the evidence". The trial judge overruled the objection, stating that he had already cautioned the jury to disregard representations made by the attorneys in closing argument which were not supported by the facts. The prosecutor then completed his argument to the jury, again referring to Mrs. Spencer's absence:

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"We didn't hear her testimony. She's the only person there who could testify as to what happened at that time."

After the jury had been instructed, defendant renewed his objection to the prosecutor's references to the absence of defendant's wife and moved for a mistrial. The trial court took the motion under advisement, stating:

"[THE COURT]: I can't see where there is Prosecutorial misconduct on the part of a Prosecutor to make reference to the fact that there were other witnesses present who could substantiate the Defendant's story, okay. Oh, also, I'm well aware of the fact that she's charged with a crime, and the Prosecutor can't call her to the stand in this case. So that's an interesting dilemma, if you will.

* * *

"[I]t's not only husband and wife privilege, but that's a whole different area of law. She's a Co-defendant. Doesn't have anything to do with husband and wife. A Co-defendant's statement, admission or confession, if not on trial, is admissible. * * * Husband and wife privilege could be waived by him calling her to the stand. And that doesn't involve confessions, statements or [130 MICHAPP 533] admissions, it involves conversations in confidence between husband and wife. Doesn't have anything to do with the admission of--anyway, I think we've got everything on the record."

On the day of sentencing, defendant's motion for mistrial was argued and denied.

Michigan's marital privilege statute provides that:

"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 * * *." M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162.

Various exceptions to this rule are listed within the statute, none of which apply here.

Although the prosecutor may comment on a defendant's failure to call a corroborating witness, People v. Ovegian, 106 Mich.App. 279, 307 N.W.2d 472 (1981), he may not do so when failure to call the witness is the result of the defendant's exercise of his marital privilege. This is so because a prosecutor may not comment upon a defendant's reliance on, or exercise of, the privilege. People v. Werner, 225 Mich. 18, 195 N.W. 697 (1923); People v. Osborn, 205 Mich. 531, 171 N.W. 471 (1919); Knowles v. People, 15 Mich. 408 (1867); People v. Johnston, 76 Mich.App. 332, 256 N.W.2d 782 (1977).

In Knowles, the Supreme Court required reversal of defendant's conviction because the trial court refused to instruct the jury that the defendant's failure to call his wife as an alibi witness could not be used against him because of the spousal privilege. In Osborn, although the Court viewed a prosecutor's questioning of a witness as to whether a defendant's wife was present in the courtroom as improper, the trial court's curative [130 MICHAPP 534] instructions to the jury were held to be sufficient to correct the error. There the lower court informed the jury that the prosecutor's remarks were improper and his conduct unlawful, and stated that the jury should remain uninfluenced by the comments. The trial court was found, therefore, to have "carefully guarded the rights of the parties", Osborn, supra, 205 Mich. at p. 538, 171 N.W. 471.

Citing Osborn, this Court, in People v. Johnston, supra, declined to review a prosecutor's impermissible comments on a defendant's failure to call his wife to support his alibi defense because the defendant had raised no objection to the remarks at trial. The Court found that a cautionary instruction occasioned by an objection would have cured any error. Johnston, supra, 76 Mich.App. at p. 341, 256 N.W.2d 782.

Two facts distinguish the instant case from Osborn and Johnston. First, defendant did object to the prosecutor's reference to defendant's failure to call his wife to testify. The trial judge's instructions to the jury, however, did not address the prosecutor's improper reference to defendant's exercise of a privilege. Second,

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defendant had clearly invoked the marital privilege prior to trial when the order was issued suppressing any statements made by defendant's wife. Although defendant did not originally assert marital privilege as the basis for his objection, the privilege had been invoked in requesting the suppression order. Further, defendant did assert the privilege immediately after the jury had been instructed as the basis for his objections to the prosecutor's remarks. The judge at that time overruled the objection, stating that the spousal privilege had nothing to do with the facts of this case. Given the position taken by the trial judge, any request for a cautionary instruction would have been futile.

[130 MICHAPP 535] Even more important, however, we find that defendant had no duty to affirmatively invoke the marital privilege at the precise moment of objection in order for the prosecutor to be barred from referring to defendant's wife's absence. As the Court ruled in People v. Werner, supra, and as appears from the language of the statute, the prosecutor is charged with a duty not to violate the privilege in the absence of defendant's express consent:

"The exclusion of a husband from being a witness against his wife, in this kind of a case, stands as a complete bar, unless she consents, and it constitutes error to compel the defendant in the presence of the jury to assume the attitude of keeping out testimony, only admissible by virtue of her consent. The statute applicable to this case provides:

" 'A husband shall not be examined as a witness for or against his wife without her consent * * *.' 3 Comp.Laws 1915, Sec. 12555.

"This does not mean that a wife, to have the benefit of the...