State v. Nettleton

• Decision Date: 22 August 1988
• Docket Number: No. 87-505,87-505
• Citation: 760 P.2d 733,233 Mont. 308
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kenneth Dale NETTLETON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 733

760 P.2d 733

233 Mont. 308

STATE of Montana, Plaintiff and Respondent, v. Kenneth Dale NETTLETON, Defendant and Appellant.

No. 87-505.

Supreme Court of Montana.

Submitted on Briefs June 22, 1988.

Decided Aug. 22, 1988.

J. Mayo Ashley, Nicholas Jacques, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Mike McGrath, Co. Atty., Carolyn Clemens, Deputy County Atty., Helena, for plaintiff and respondent.

McDONOUGH, Justice.

Kenneth Dale Nettleton appeals from the judgment of the District Court of the First Judicial District, Lewis and Clark County, entered upon a jury verdict finding him guilty of deliberate homicide, a felony. We affirm.

Nettleton presents one issue for our review:

"Should two of the witnesses, both former spouses, have been allowed to testify regarding communications made to them during the marriage?"

On November 7, 1986, Nettleton was charged with the 1977 deliberate homicide of Gayla Sue Brisson. On March 18, 1987, Nettleton filed a motion to exclude the testimony of Candace Semenze and Magdelina DuMontier relating to statements made by Nettleton to the two women while married to them. According to Nettleton, Semenze was his common-law wife from June of 1975 until February of 1982, and he was married to DuMontier from July of 1983 until June of 1986. He asserted that his communications with the two women during marriage were privileged under § 26-1-802, MCA.

After a hearing on the motion, the District Court determined that sufficient evidence had been introduced to show a marriage between Nettleton and DuMontier, and between Nettleton and Semenze. However, the court denied the motion to exclude the testimony of the two women based on exceptions to spousal privilege. Both women then testified at trial, and are characterized by both parties as important witnesses.

Semenze testified at length about Nettleton's words and actions in her presence on the day of Brisson's death and thereafter. Among other things, she testified to seeing a scarf in Nettleton's car on the day after Brisson's death that was very similar to the one she had seen Brisson wearing shortly before she was killed. She also testified about a chain of events following Brisson's death, when Nettleton told her he had killed Brisson, showed her the body, and forced her to assist him in a "cover-up" of the crime. Brisson's body was located under a small house trailer on the outskirts of Helena. The cover-up consisted of Nettleton and Semenze inspecting this trailer with an acquaintance of Nettleton's, Chris Nunn, under the pretense of being interested in purchasing it. During the inspection, Nettleton "discovered" Brisson's body.

Semenze's testimony about these events is interspersed with repeated threats and abusive remarks by Nettleton:

He was really scaring me; and he said if you tell that he would--if--he said if you tell anybody about this that he would kill me

* * *

and we went back to--back to that little trailer; and I was scared; and he pulled up to it; and he was scaring me; and he said, "You get out of the 'f---ing' car and pretend like you are interested in the trailer ..."

Semenze further testified that although she and Nettleton were separated at the time of the killing, he forced her--again under threat of death--to move back in with him. While living with Nettleton, she was continually subjected to threats concerning what would happen to her or her baby should she ever disclose Nettleton's connection to Brisson's death. According to Semenze's testimony, these threats were sometimes accompanied by physical violence:

He was always picking on me and threatening me, shoving me around and telling me that he would take [the baby]; and he said, "If you run, you can run to Texas; and I will find you;" and I just couldn't sleep. I was scared that he would do something. I was scared he was going to do something to [the baby]. I just didn't want to live with him but he made me live with him.

Semenze also testified about an occasion shortly after Brisson's death when she and Nettleton were riding in a pickup driven by Nettleton's brother. Nettleton had his brother stop on a bridge so he could throw a knife into the creek "to wash the finger prints off."

DuMontier likewise testified as to threats directed at her by Nettleton, as well as a "warning" from Nettleton's brother. DuMontier, like Brisson, had red hair. She testified that after having an argument with Nettleton at a tavern, she was warned by Nettleton's brother not to anger him because "Ken had already killed a red-headed girl." DuMontier also testified that when she later asked Nettleton about his brother's warning, he admitted to her that he had killed Brisson. She further testified that after she and Nettleton were divorced, he came to her house on at least one occasion and, according to DuMontier, "he got mad and started slapping me and just said that--called me Ga[y]la and said that I should should be dead already because he had killed me years ago."

On March 27, 1987, the jury returned its verdict finding Nettleton guilty of deliberate homicide. On August 25, 1987, the District Court sentenced Nettleton to 60 years in the Montana State Prison and denied his motion for a new trial. This appeal followed.

Before proceeding to the main issue framed by Nettleton, we will dispose of a preliminary question raised by the State. The State's argument to the District Court and its brief on appeal emphasize that Nettleton and Semenze were never married. According to the State, the alleged common-law marriage between the two did not have the four elements necessary under Montana common law: capability, agreement, cohabitation and reputation (citing Matter of Estate of Murnion (Mont.1984), 686 P.2d 893, 41 St.Rep. 1627, and other cases). Whether the relationship between Nettleton and Semenze fit the legal definition of common-law marriage was a question of fact for the District Court to decide. That decision must be upheld if there is substantial, credible evidence in the record to support it. Griffel v. Cove Ditch Co. (1984), 207 Mont. 348, 675 P.2d 90, 41 St.Rep. 1.

The record shows that while Semenze denied the existence of the marriage in her testimony, she and Nettleton lived together, had a child, opened and used a joint checking account, and filed joint income tax returns for two consecutive years. The record also shows the filing of a joint petition for divorce signed by Semenze and Nettleton. This evidence provides a sufficient basis for the District Court's decision that Nettleton and Semenze considered themselves married, and we will conduct our review under the assumption that the marriage existed.

The issue on review is thus the exceptions to spousal privilege adopted by the District Court and contested on appeal by Nettleton. Section 26-1-802, MCA, is Montana's spousal privilege statute:

Spousal Privilege. A husband cannot be examined for or against his wife without her consent or a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other or to a criminal action or proceeding for a crime committed by one against the other.

Nettleton argues that the District Court misapplied § 26-1-802, MCA, and the exceptions found by the court to allow testimony by Semenze and DuMontier are contrary to existing case law. However, if the District Court's ruling was correct, we will affirm it irrespective of the reasoning used to support it. Norwest Bank of Billings v. Murnion (1984), 210 Mont. 417, 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136.

At the outset, we note the statute's wording, which protects "communications made by one to the other during the marriage." Given this wording, some of the testimony disputed by Nettleton does not come within the privilege afforded by § 26-1-802, MCA. Testimony by DuMontier concerning Nettleton's actions and statements after the two were divorced is not at issue here, because those statements were not made during marriage. Nor is testimony by Semenze or DuMontier involving statements or actions by persons other than Nettleton at issue, because those were not communications by one spouse to the other.

The doctrine of spousal privilege has its roots in English common law. The original doctrine was based on the archaic principle that a husband and wife were a single legal entity, and therefore could not testify against one another. See 8 J. Wigmore, Wigmore on Evidence § 2228, at 214-15 (J. McNaughten ed., 1961). The doctrine arrived in this country via the common law, being first recognized by the United States Supreme Court in Stein v. Bowman (1839), 38 U.S. (13 Pet.) 209, 10 L.Ed. 129. Most states have subsequently codified spousal privilege. The original form of § 26-1-802, MCA, was enacted by the Montana legislature in 1867.

As the doctrine of spousal privilege has undergone changes over time, so has Montana's statute. Section 26-1-802, MCA, has been amended or re-enacted 15 times. Changes made to spousal privilege by various courts and legislatures have drawn criticism from modern commentators, who say the somewhat piece-meal approach of carving out exceptions to the original rule has made the nation-wide body of law on spousal privilege confusing and sometimes contradictory. See McCormick on Evidence, §§ 78 et seq. (E. Cleary ed., 1984). The current form of § 26-1-802, MCA, contains two of the more common exceptions found in other states: spouses can testify in a civil action by one against the other, or a criminal proceeding for a crime committed by one against the other.

In light of the criticism aimed at the sometimes confusing state of spousal privilege law, we will address the exceptions relied...