State v. Evans, 15333

• Decision Date: 05 March 1982
• Docket Number: No. 15333,15333
• Citation: 287 S.E.2d 922,170 W.Va. 3
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Jeffrey Eugene EVANS.

Page 922

287 S.E.2d 922

170 W.Va. 3

STATE of West Virginia v. Jeffrey Eugene EVANS.

No. 15333.

Supreme Court of Appeals of West Virginia.

March 5, 1982.

Syllabus by the Court

1. W.Va.Code, 57-3-3 [1923], which provides that a spouse may not testify against the other spouse without his or her acquiescence except in certain cases involving domestic violence, applies to married people who are in the process of getting a divorce.

2. "Where improper evidence of a non-constitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

D. Grove Moler, Mullens, for appellant.

Chauncey H. Browning, Atty. Gen. and Richard E. Hardison, Deputy Atty. Gen., Charleston, for appellee.

NEELY, Justice:

Appellant, Jeffrey Eugene Evans, was convicted of second degree murder after a jury trial in the Circuit Court of Wyoming County on 27 July 1981.

Shortly after 9:00 p. m. on 19 September 1980, the appellant and Ernie Hall arrived at the appellant's mobile home after an evening at a pool hall where the appellant had ingested a number of valium pills and some beer. At approximately 10:15 p. m. that evening the appellant's wife, Robin Evans, came to the mobile home. An argument then started between the appellant and his wife. Ernie Hall stayed in the mobile home when Robin Evans and the appellant went outside and continued the argument. Shortly after reentering the mobile home, the appellant shot Ernie Hall. The appellant immediately called the sheriff's office and the victim's brother. The sheriff arrested the appellant that night. Following Ernie Hall's death on 20 September 1980, the Wyoming County Grand Jury indicted the appellant for first degree murder.

At trial the wife testified that while she and her husband were outside he pushed her up against her car and grabbed her by the throat. According to her he also said that "he wasn't letting nobody mess over him" and that he "meant to pay them back one way or another." As Robin Evans walked down the driveway the appellant shouted after her. She then turned to follow the appellant back into the mobile home. Shortly after the appellant entered the mobile home but before Robin Evans got there, Robin Evans heard a shot and then heard Ernie Hall say "Why did you do that for, man, why did you do that?"

When the State called Robin Evans to testify, the appellant's counsel objected citing the privilege against adverse spousal testimony. The State claimed that the couple were then divorced. However, the record shows that while a hearing had been held upon a divorce petition, a divorce decree had not yet been entered. Nevertheless, the trial judge ruled that the wife could testify if she wanted to. The court alluded to a recent United States Supreme Court case that permitted one spouse to testify against the other. The appellant asserts that this ruling by the trial court was in error. ¹ We agree.

W.Va.Code, 57-3-3 [1923] provides a privilege against adverse spousal testimony. Under this statute, this privilege may be claimed by either the witness-spouse or the defendant-spouse. ² The statute applies in this case because at the time of trial the appellant and Robin Evans were married. While a hearing had been held, no divorce decree had been entered. Hence the divorce was not in effect. See e.g., Humphrey v. Mauzy, 155 W.Va. 89, 181 S.E.2d 329 (1971); see also, State v. Mason, 157 W.Va. 923, 205 S.E.2d 819 (1974). Absent the entry of such a decree, Robin Evans was still the appellant's spouse and potential heir at law with full rights of dower. See W.Va.Code, 48-22-20 [1969]; Hartigan v. Hartigan, 65 W.Va. 471, 64 S.E. 726 (1909). We also note that absent such a decree, the couple could have achieved a reconciliation without having to go before a court to do so.

From the record the trial court did not seem concerned about whether the appellant was still married. The court alluded on several occasions to a new Supreme Court ruling that limited the privilege against adverse spousal testimony so that it could be exercised only by the witness-spouse. The trial court was correct that the United States Supreme Court did make such a ruling in Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). However, the trial court was incorrect in thinking that the Trammel holding has any effect on our statute that vests the privilege in the defendant-spouse as well.

Under the Federal Rules of Evidence testimonial privileges are "governed by the principles of the common law as they may be interpreted ... in the light of reason and experience." Fed.R.Evid. 501. Hence, the Supreme Court in Trammel was free to modify the privilege against spousal testimony as long as "reason and experience" supported such a change. However, that change only affects cases conducted in jurisdictions in which the Federal Rules of Evidence or the common law rules concerning privileges apply. In the Circuit Court of Wyoming County and in this Court as well the contents of the privilege against spousal testimony are controlled by W.Va.Code, 57-3-3 [1923]. Should "reason and experience" dictate a change in that statute, it is up to our legislature to draft and pass appropriate modifications. But see, State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981) (court drastically modified North Carolina's statute limiting adverse spousal testimony).

Even if Robin Evans had been divorced from the appellant at the time of trial, she could not have testified about what the appellant said when they were outside the mobile home. Since these statements were made during the marriage they would be privileged under W.Va.Code, 57-3-4 [1923]. Nash v. Fidelity-Phenix Fire Ins. Co., 106 W.Va. 672, 146 S.E. 726 (1929). Having found that the broader testimonial privilege of W.Va.Code, 57-3-3 [1923] applies in this case, we leave open the question of whether the appellant's physical actions outside the mobile home would have constituted protected confidential communication.

Having determined that the circuit court's ruling to permit Robin Evans to testify over the appellant's objection was in error, we now turn to whether the error requires a reversal of the conviction. The test to be applied was set forth by this Court in syl. pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980):

Where...