State Of Minn. v. Allen Zais
| Decision Date | 30 November 2010 |
| Docket Number | No. A10-1020.,A10-1020. |
| Citation | 790 N.W.2d 853 |
| Parties | STATE of Minnesota, Appellant, v. Thomas Allen ZAIS, Respondent. |
| Court | Minnesota Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Syllabus by the Court
The exception to the marital testimonial privilege codified in Minn.Stat. § 595.02, subd. 1(a) (2008), which permits spouses to testify in a criminal proceeding for a crime “committed by one against the other,” applies to a prosecution for disorderly conduct if the underlying conduct was directed at and adversely affected or endangered the testifying spouse.
Lori Swanson, Attorney General, St. Paul, MN; and Paul D. Baertschi, Tallen & Baertschi, Minneapolis, MN, for appellant.
William Ward, Fourth District Chief Public Defender, James A. Kamin, Assistant Public Defender, Minneapolis, MN, for respondent.
Considered and decided by CONNOLLY, Presiding Judge; LANSING, Judge; and KALITOWSKI, Judge.
This appeal is from the district court's pretrial order in a prosecution for disorderly conduct, concluding as a matter of law that, absent Thomas Zais's consent, his wife, Debra Zais, may not testify against him. Because we conclude that Debra Zais's testimony comes within the exception to the marital testimonial privilege in Minn.Stat. § 595.02, subd. 1(a) (2008), which permits spousal testimony in a criminal action or proceeding for a crime committed by one spouse against the other, we reverse and remand.
The facts relevant to this appeal are based on police reports admitted by stipulation and a written offer of proof that relies on Debra Zais's recorded statement to Maple Grove police. For purposes of determining the applicability of the marital testimonial privilege, these facts are undisputed.
Respondent Thomas Zais (Zais), his wife Debra Zais, and their fifteen-year-old daughter live in Maple Grove. The disorderly conduct charge at the center of this appeal stems from a November 15, 2009 incident in the driveway of their house, in front of their attached garage. About 6:20 p.m. Debra Zais called the Maple Grove police and reported that Zais had been drinking, was in the driveway in his pickup truck, and was trying to break down the garage door.
One of the officers responding to the call had been at the Zaises' house the previous evening in response to a phone call by Debra Zais reporting that Zais was arguing with, and had pushed, their daughter. Police told Debra Zais that the pushing conduct was insufficient to support a criminal charge. After the altercation with his daughter, Zais left the house. Debra Zais, who feared for her safety and the safety of her daughter, removed the garage-door opener from Zais's pickup so he could not enter the house.
Zais called his wife at the house on the afternoon of November 15 and told her that he was coming to the house and would break in or do whatever was necessary to gain entry. When Debra Zais saw him attempting a forcible entry, she called 911 and the police arrived at the house around 6:30 p.m.
The first officer to arrive saw the pickup in the driveway and saw Zais standing by the garage door. The officer also saw that “square panels on the garage door had been knocked out.” Zais told him that Debra Zais would not let him in and that he had knocked out the panels to gain entrance to the house.
After Zais said that he had consumed alcohol, the officer administered field sobriety tests, which Zais failed. A preliminary breath test indicated that Zais had a .31 alcohol concentration. The officers told Zais that he was under arrest. He refused to comply with the officers' requests to put his hands behind his back and started to run away. After running a short distance, Zais turned to face the officers and “got into a fighting position with clenched fists.” The officers again told him that he was under arrest. Following a sequence of Zais's yelling and failing to comply with directives, police discharged a Taser. When Zais fell to the ground, the police handcuffed him and placed him in the squad car. In the car he twice hit his head against the interior, and, because of the resulting head injuries, was transported by ambulance to North Memorial Hospital. A consensual blood test registered an alcohol concentration of .23.
The state charged Zais with second-degree driving while impaired (DWI), third-degree DWI, obstruction of legal process or arrest, careless driving, and disorderly conduct. In pretrial discovery, the state notified Zais that Debra Zais was a voluntary witness in the proceeding. Zais moved to exclude her testimony based on the marital testimonial privilege in Minn.Stat. § 595.02, subd. 1(a) (2008).
The state and Zais submitted memoranda on the applicability of the marital testimonial privilege and, at the direction of the district court, the state submitted an offer of proof setting forth the substance of Debra Zais's proposed testimony. Following submission of the memoranda and argument, the district court concluded that disorderly conduct is not a crime that creates “a personal injury sufficient to destroy the spousal privilege,” and therefore, as a matter of law, Debra Zais was precluded from testifying against Zais without his consent.
The state appeals this pretrial order. In his response brief, Zais raises an additional issue, characterized as a “structural error,” contending that the case should be dismissed for prosecutorial impropriety in the state's decision to appeal.
I. Does the exception to the marital testimonial privilege provided in Minn.Stat. § 595.02, subd. 1(a), for “a criminal action or proceeding for a crime committed by one against the other” apply to a prosecution for disorderly conduct when a spouse, who is the complaining witness, is adversely affected by the conduct underlying the complaint?
II. Did the prosecutor's decision to appeal this case inject structural error that requires dismissal of the appeal?
Minnesota Rule of Criminal Procedure 28.04 allows the state to appeal pretrial orders, subject to some restrictions. To prevail in a pretrial appeal, the state must show clearly and unequivocally that the order will have a critical impact on its ability to prosecute the case, and that the order constitutes error. State v. McLeod, 705 N.W.2d 776, 784 (Minn.2005). The critical-impact requirement is satisfied if the suppression of evidence destroys the prosecution's ability to prosecute or “significantly reduces the likelihood of a successful prosecution.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998). We consider the state's evidence as a whole in deciding what impact the exclusion of evidence will have on the state's case. State v. Zanter, 535 N.W.2d 624, 631 (Minn.1995).
Significantly, Zais does not dispute the critical impact of the excluded testimony. And the record, although limited, establishes that the state would rely heavily on Debra Zais's testimony to prove that Zais engaged in disorderly conduct, defined by statute as “offensive, obscene, abusive, boisterous, or noisy conduct” or “language tending reasonably to arouse alarm, anger, or resentment in others.” Minn.Stat. § 609.72, subd. 1(3) (2008).
The record indicates that Debra Zais is the only eyewitness to Zais's conduct and that her testimony, particularly her telephone conversation with Zais, would bear directly on a determination of whether Zais “[knew], or [had] reasonable grounds to know that [his actions would], or [would] tend to, alarm, anger or disturb others.” Id. Without Debra Zais's testimony the likelihood of a successful prosecution would be significantly reduced. See Scott, 584 N.W.2d at 416 (). We conclude that the order will have a critical impact on the state's ability to prosecute the case, and we turn to the question of whether the district court's order on the applicability of the marital testimonial privilege was in error.
Under Minnesota law, “[a] husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage.” Minn.Stat. § 595.02, subd. 1(a). This exception to the general rule that any “person of sufficient understanding” may testify in a judicial proceeding is commonly referred to as the “marital privilege,” and this privilege also has exceptions. Id. One exception provides that the marital privilege does not apply “to a criminal action or proceeding for a crime committed by one [spouse] against the other.” Id. We agree with the district court's statement that “[t]he crux of the issue of the applicability of the spousal privilege is whether the charge of [d]isorderly [c]onduct may be considered a crime committed against [Debra] Zais.” If it is a crime “committed against” his wife, then Zais cannot invoke the privilege to prevent her from testifying.
Court decisions applying Minnesota's marital privilege distinguish between the general prohibition against testimony (referred to as the testimonial privilege) and the specific prohibition against communication testimony (referred to as the communications privilege). E.g., State v. Gianakos, 644 N.W.2d 409, 416 (Minn.2002). In this appeal the testimonial privilege is at issue, and more specifically, the exception to the privilege that makes it inapplicable “to a criminal action or proceeding for a crime committed by one [spouse] against the other.” Minn.Stat. § 595.02, subd. 1(a). “The burden of proving the applicability of the marital privilege rests on the spouse who invokes the privilege.” State v. Palubicki, 700 N.W.2d 476, 483 (Minn.2005).
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