People v. Vermeulen
| Decision Date | 08 March 1989 |
| Docket Number | Docket No. 81558 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John Allen VERMEULEN, Defendant-Appellee. 432 Mich. 32, 438 N.W.2d 36 |
| Court | Michigan Supreme Court |
L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div. by Michael J. Modelski, Asst. Pros. Atty., Pontiac, Mich., for plaintiff-appellant.
John D. Lazar, Royal Oak, and Lawrence G. Kaluzny, Birmingham, for defendant-appellee.
We granted leave to appeal in this case, consolidated on appeal with People v. Hamacher, 432 Mich. 157, 438 N.W.2d 43 (1989), to consider the application of the spousal communication privilege set forth in the Revised Judicature Act, Sec. 2162. 1 We conclude that the Court of Appeals correctly held that the privilege bars the testimony of the defendant's wife in this case and affirm.
RJA Sec. 2162 2 provides two distinct privileges. The first, the spousal privilege, is only applicable when the witness and the spouse are married at the time of trial. 3
The second privilege, the communication privilege, bars one spouse from testifying "as to any communications made by one to the other during the marriage" without the consent of the other. The communication privilege applies whether the testimony is sought "during the marriage or afterwards " as long as the communication occurred during the marriage. RJA Sec. 2162 states no exceptions with respect to the communication privilege.
Vermeulen is charged with the murder of his "second" 4 wife, Urime Lewis. Approximately one week before her death, Vermeulen spoke to his "first" wife, Sharon Vermeulen, and allegedly said that he would kill Urime Lewis if she left him. The prosecutor seeks to have Sharon Vermeulen testify to the substance of that conversation to refute Vermeulen's claim that Urime Lewis' death was an accident arising out of Vermeulen's attempted suicide.
The prosecutor filed a motion in limine, seeking the admission of Sharon Vermeulen's testimony. The court granted the motion, stating that The court said:
"Society's interest in protecting the confidentiality of the relationships of permanently separated spouses is outweighed by the need to secure evidence in the search for truth that is the essence of a criminal trial, and proof of the permanent separated status at the time of the communication between the Defendant, John Vermeulen, and his first wife, Sharon Vermeulen, renders the communication privilege automatically inapplicable."
The Court of Appeals reversed, holding that statements "defendant made to his wife during the legal existence of the marital relationship" were barred on the authority of People v. Hamacher (On Remand), 160 Mich.App. 759, 408 N.W.2d 549 (1987).
The prosecutor argues on appeal in this Court that the protection of the communication privilege may not be invoked because no viable marital relationship existed at the time the statement was made. Vermeulen had filed for divorce and bigamously married Urime Lewis.
The prosecutor relies on United States v. Byrd, 750 F.2d 585, 593 (CA 7, 1984), where the United States Court of Appeals for the Seventh Circuit declared that "only communications that take place during a valid marriage between couples still cohabiting pursuant to that marriage are protected by the privilege." That court was, however, expounding and qualifying the federal common-law privilege, not a statutory privilege. In Michigan, privileges are statutory and, in the absence of a "court rule governing marital privileges, the statute controls." People v. Love, 425 Mich. 691, 699, 391 N.W.2d 738 (1986) (opinion of Cavanagh, J.).
This Court has not undertaken a review of the statutory privileges--whether marital, physician-patient, lawyer-client, or other--since the promulgation of the Michigan Rules of Evidence. The Court declines the invitation that we do so piecemeal.
The statute clearly and unequivocally provides that a spouse may not, "during the marriage or afterwards " (emphasis added) be examined as to any communication made "during the marriage." Unless and until the statute is amended or a court rule superseding the statute is adopted, the trial courts may not inquire into the viability of the marriage. 5 The communication is barred if it was made during the marriage. We thus adhere to this Court's recent statement in People v. Hamacher, 428 Mich. 884, 402 N.W.2d 484 (1987), where this Court observed that the statute "contains no exception to the privilege regarding communications between a husband and wife where the husband and wife are separated or are in the process of obtaining a divorce." Here, as there, Vermeulen and Sharon Vermeulen "remained husband and wife at the time the communication ... was allegedly made." Id.
The prosecutor relies on People v. Zabijak, 285 Mich. 164, 182, 280 N.W. 149 (1938), where this Court concluded that neither the spousal nor the communication privilege barred the wife's testimony that the defendant entered their home, locked the door and window, showed her a gun, said he was going to kill her and then their baby which she was holding, and as they both began to cry, he pushed her on the bed, "with my baby on the arm, he shoot me twice, two bullets go through baby," he shot her again and started running to her mother's home and said, "I am finish with you; I am going outside and going to kill your mother now." Zabijak proceeded immediately to shoot his mother-in-law, then shot himself but recovered, and was being tried for the murder of his mother-in-law.
This Court declared that Zabijak had failed to establish that he and the witness were still married at the time of trial and thus the spousal privilege, which might have barred her from testifying, was inapplicable. Turning to the communication privilege, the Court declared that the statement that he was "going to kill" his mother-in-law "now" was not confidential. The statement was not, said the Court, The Court added that the testimony "did not injure the marriage relation of the parties by the betrayal of any confidence reposed in her by defendant."
Although the statute speaks of "any communication," it is well-established in this state 6 and generally 7 that only confidential communications are protected by the communication privilege. It has been said that "a variety of factors, including the nature of the message or the circumstances under which it was delivered, may serve to rebut a claim that confidentiality was intended." 8
We agree that the nature and circumstances of the communication may be considered in determining whether the communication was confidential. The nature of the marriage relationship immediately preceding or immediately after the communication is not, however, a circumstance respecting the communication that may be considered in determining whether it is confidential. To hold otherwise would be contrary to the statutory mandate providing that the witness spouse shall not "during the marriage or afterwards" be examined regarding any communication made during the marriage.
The statement allegedly made by Vermeulen to Sharon Vermeulen that he would kill Urime Lewis if she left him, in contrast with the statement in Zabijak, was not made in the course of a murderous assault on the witness spouse. The statement in "the nature of threats" in Zabijak concerned a contemplated assault that was an aspect of the same felonious transaction in which, and was uttered immediately after, the witness spouse had been shot and their baby killed. It was at that point that Zabijak said that he was going to kill the witness spouse's mother "now," which he proceeded immediately to do and then shot himself. 9 Under the circumstances, it is not remarkable that this Court concluded that Zabijak's statement concerning the contemplated assault on his mother-in-law was not confidential. While the Court added that the witness' testimony did not injure the marriage relation, that was not the basis of decision, which appears rather to have been based on the nature of the communication and the circumstances in which it was delivered.
The nature and circumstances of the communication in the instant case do not rebut a claim that the communication was confidential.
We conclude that the Court of Appeals correctly held that the spouse's testimony was inadmissible. We decline the invitation to judicially amend the communication privilege stated in Sec. 2162 of the RJA.
The decision of the Court of Appeals is affirmed. The cause is remanded to the trial court for proceedings consistent with this opinion.
I would conclude that the Court of Appeals erred when it peremptorily reversed the trial court's ruling in limine on the authority of People v. Hamacher (On Remand), 160 Mich.App. 759, 408 N.W.2d 549 (1987). The decision of the Court of Appeals in Hamacher did not address the preliminary issue of confidentiality, but rather was concerned only with the proper construction of the exceptions in Sec. 2162. The trial court in this case ruled that the statute was inapplicable, because the statements at issue were not confidential. The trial court did not err. I would reverse the decision of the Court of Appeals and remand this case to the Oakland Circuit Court for trial.
The issue in this case is whether the trial court erred...
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