State v. Euell
| Decision Date | 29 June 1979 |
| Docket Number | No. 60583,60583 |
| Citation | 583 S.W.2d 173 |
| Parties | STATE of Missouri, Respondent, v. David Franklin EUELL, Appellant. |
| Court | Missouri Supreme Court |
Robert Schwarz, Clayton, for appellant.
John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant David Franklin Euell's (hereinafter defendant) conviction of murder in the second degree and thirty-year sentence was affirmed by the Missouri Court of Appeals, Eastern District, after which we sustained defendant's motion to transfer. Art. 5, sec. 10, Mo.Const., Rule 83.03.
Defendant does not challenge the sufficiency of the evidence. Only the facts necessary to resolution of the three points on appeal will be set forth.
Defendant and Eleanor First were married in 1968, had one child, and were separated in 1974, but not divorced. Eleanor lived in an apartment with one Lavina Williams. Eleanor had been dating Arthur Marty Carroll, the deceased, and this relationship caused several arguments and altercations between defendant and Carroll.
On February 15, 1974, the defendant went to Eleanor's apartment. Carroll was there, as was Eleanor, Lavina Williams, and the three-year-old son of the defendant and Eleanor. The testimony differs as to what preceded the shooting; however, defendant fired one shot which missed the deceased and then fired another shot which struck Carroll, killing him.
Prior to trial the state moved for disqualification of the judge of Division Six before whom the case was pending. The motion was sustained and the cause was transferred to Division Eight, Judge Hoester. A trial in Division Eight resulted in a hung jury and mistrial. Prior to the beginning of the instant trial, the defendant moved for disqualification of Judge Hoester, which was sustained, and the cause was then transferred to Division One, Judge Crandall.
One of the principal witnesses against defendant was Eleanor First. Eleanor and the defendant were still married at the time of the homicide but were divorced prior to trial. The question of Eleanor's competency as a witness under sec. 546.260, RSMo 1969, against defendant arose before Judge Crandall prior to trial. The judge indicated he would sustain defendant's objection to the appearance of Eleanor as a witness against defendant. The state then moved or requested Judge Crandall to disqualify, which he did, and the cause was transferred to Division Fourteen, Judge Ruddy, before whom the trial took place. Defendant made no objection to the transfer of the case to Judge Ruddy. Eleanor appeared and testified against defendant over the objection that she was not a competent witness under sec. 546.260.
The conference in Judge Crandall's chambers was not recorded and the foregoing account pertaining thereto is derived from statements by the attorneys and Judge Ruddy during a hearing on post-trial motions.
Defendant's first point is that the state was not entitled to a second change of judge under rule 30.12 and because Judge Crandall disqualified himself at the request of the state defendant should have a new trial.
There was no objection to Judge Crandall disqualifying himself or to the transfer of the cause to Judge Ruddy. It is correct that a party is entitled to only one change of judge as of right, but any judge may, at the suggestion of a party, or on his own motion, disqualify himself if he believes himself to be in "anywise interested or prejudiced." Rule 30.12. The point is overruled.
Defendant's second point is the court erred in allowing Eleanor First, who was married to defendant at the time of the homicide, but divorced at trial time, to testify against him under sec. 546.260, RSMo 1969. 1
In support of this point the defendant principally relies upon State v. Kodat, 158 Mo. 125, 59 S.W. 73 (1900). Mr. Kodat was charged with assault with intent to kill one Josephine Kritsch. Mr. and Mrs. Kodat were married and separated but not divorced at the time Mrs. Kodat witnessed the shooting. They were divorced prior to trial. The state called Mrs. Kodat as a witness and she testified over her former husband's objection. This court put the issue on appeal as: "Is a divorced wife a competent witness against her husband in a criminal prosecution against him for an assault upon a third party, when the alleged assault occurred during their marriage?" That, of course, is the same issue as in the instant case.
The court in Kodat reviewed the common-law disabilities and the Missouri modifications thereof as exemplified by Rev.St.1889, sec. 4218 (now sec. 546.260, RSMo 1969). The court said, "It is perfectly obvious . . . that, Mrs. Kodat would not have been a competent witness against him if she had remained his wife at the time she was offered as a witness against him." With this statement, as will be seen, we agree. The court then went on to hold that she remained an incompetent witness after the divorce the same as if the marriage had never been dissolved and reversed the judgment. As will be seen, we disagree with this holding.
In overruling this point, the court of appeals relied principally upon State v. Frazier, 550 S.W.2d 590 (Mo.App.1977), and State v. Damico, 513 S.W.2d 350 (Mo.1974). The quotation used from Frazier is:
"A spouse is now a competent witness against a defendant spouse in any criminal proceeding if the witness spouse willingly testifies; the option of doing so belongs to the witness spouse; and a witness spouse is permitted, but may not be compelled, to testify in any criminal proceeding against a defendant spouse as to any relevant and admissible matter save confidential communications between spouses."
And the quotation used from Damico is:
"While at common law a wife was incompetent to testify against her husband that complete legal disqualification was removed by the enactment of the statute, now sec. 546.260, RSMo 1969, V.A.M.S."
This court agrees that Eleanor was a competent witness against the defendant because they were not married at the time she testified and her testimony did not involve confidential communications. This case was transferred because we have concluded the basis upon which the court of appeals overruled the point is incorrect. That basis is found in the quotation from Frazier, supra, which is, in part, incorrect, and unless corrected promptly will contribute to error in the trial of criminal cases. The quotation from Damico, supra, seems to be receiving an overbroad interpretation and is likely to lead to error.
At common law a husband or wife was not a competent witness to testify either for or against the other spouse, nor was one spouse allowed to divulge confidential communications arising out of the marriage relationship. The rationale from which these rules evolved was twofold: the rule against the spouse testifying protected the marriage relationship and the confidential communications rule encouraged full disclosure and trust between the parties to the marriage. A defendant spouse could waive the protection of the common law by failing to object at the time the other spouse was called upon to testify. These common-law rules relating to privileged communications between husband and wife have been codified in virtually all states and these statutes are usually merely declaratory of the common-law rule. 81 Am.Jur.2d, secs. 148, 149; 38 ALR2d 570, 573.
Section 546.260, RSMo 1969, removed the common-law disability by permitting one spouse to testify on Behalf of the other "At the option of the defendant spouse" In a criminal case ; but the statute specifically retains the confidential communications privilege, "provided, that in no case shall husband or wife, when testifying under the provisions of this section for a defendant, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife."
Other statutory provisions have modified the common-law rule which precluded a spouse from testifying for or against each other even in Civil cases. In Missouri, sec. 491.020, RSMo 1969, removes that disqualification completely in civil cases, retaining only the confidential-communication privilege.
A comparison between sec. 546.260 (criminal) and sec. 491.020 (civil) demonstrates the incompetency to testify is completely removed in Civil cases so that the spouse may testify for or against the other spouse during marriage, but the criminal statute removes the disqualification only so as to allow the spouse to testify "at the option of the defendant . . In his behalf " in a criminal case. Both statutes retain the confidential-communication privilege.
Federal courts recognize the distinction between the capacity of a spouse to testify against the other, or the incompetency of a wife to testify against her husband on the one hand, and the privilege of confidential-marital communications on the other. See: Annotation Marital Communications Privilege, 95 L.Ed. 309. In so doing, while universally upholding the privilege as to confidential communications during the term of the marriage and beyond, it is recognized that the confidential nature of a communication between husband and wife is destroyed where it is made in the presence of third persons who are capable of understanding it. Anno., Supra. Even after divorce, the confidential-communication privilege continues because of the policy underlying the rule, which is that confidence is essential to the marriage relationship and, therefore, the fear or concern of future disclosure must be removed. This is done by extending the privilege beyond the termination of the relationship. An act performed by one spouse in the presence of another can also constitute a confidential communication depending upon the circumstances in which the act took place. See: Annotation Acts As Confidential Communications, 10 ALR2d 1389.
In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), the United...
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