State v. Palmer

• Decision Date: 09 September 1983
• Docket Number: No. 82-548,82-548
• Citation: 338 N.W.2d 281,215 Neb. 273
• Parties: STATE of Nebraska, Appellee, v. Charles Jess PALMER, also known as Charles Tinsley, also known as J.R. Kirkpatrick, Appellant.
• Court: Nebraska Supreme Court

Page 281

338 N.W.2d 281

215 Neb. 273

STATE of Nebraska, Appellee, v. Charles Jess PALMER, also known as Charles Tinsley, also known as J.R. Kirkpatrick, Appellant.

No. 82-548.

Supreme Court of Nebraska.

Sept. 9, 1983.

Syllabus by the Court

1. Statutes. In the construction of a statute which is clear and unambiguous, courts cannot supply missing language, and it is not within the court's power to read into a statute meaning which the clear language of the statute does not warrant.

2. Statutes. Where the language of the statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language.

3. Divorce: Marriage: Appeal and Error. In an appeal to the Supreme Court from a decree of dissolution, the marital status continues until a final determination is had.

4. Divorce: Marriage: Witnesses. During the period after rendition of the decree and before a divorce becomes effective to change the status of the parties, the parties are husband and wife with respect to their competency to testify for or against each other.

John A. Wolf and David Bush, Grand Island, for appellant.

Paul L. Douglas, Atty. Gen., and J. Kirk Brown, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

KRIVOSHA, Chief Justice.

The appellant, Charles Jess Palmer (Palmer), appeals from a jury verdict finding him guilty of felony murder, in violation of the provisions of Neb.Rev.Stat. § 28-303(2) (Reissue 1979), and from the subsequent sentence of death imposed by the trial court. This is the second appearance of this case before this court. See State v. Palmer, 210 Neb. 206, 313 N.W.2d 648 (1981) (Palmer I ). The facts of the case are fully set out in Palmer I and for purposes of this appeal need not be repeated here.

Palmer has assigned some 26 alleged errors which he maintains entitled him to a reversal of his conviction. We need not consider all of the errors, because if one of his assigned errors, that the trial court erred in permitting his "former wife," Cheri Palmer, to testify against him, in violation of Neb.Rev.Stat. § 27-505(2) (Reissue 1979), is correct, then we are required by law to once again order a new trial in the case. We have examined the record and find that indeed the trial court did err in permitting Cheri Palmer to testify; therefore, we must reverse the conviction.

Mrs. Palmer did not testify in the first case. This was obviously due to the fact that the Palmers were then still married and she was precluded by the provisions of § 27-505(2), which provide: "During the existence of the marriage, a husband and wife can in no criminal case be a witness against the other. This privilege may be waived only with the consent of both spouses."

The record discloses that on February 24, 1982, following our decision in Palmer I, Mrs. Palmer filed suit for divorce in the Travis County District Court located in Austin, Texas. A decree of divorce was entered by the Travis County District Court on May 12, 1982. On May 25, 1982, the State requested the court to grant a continuance of the Palmer murder trial because, apparently, prosecutors intended to call Mrs. Palmer as a witness but, believing that Palmer would appeal the divorce decree, anticipated that Mrs. Palmer would be ineligible to testify. The trial court denied the continuance and ordered the case to trial. On May 25, 1982, Palmer filed a motion for new trial in the Travis County District Court. On June 8, 1982, when Cheri Palmer testified in the District Court for Hall County, Nebraska, the motion for new trial in the divorce case was still pending in the Texas court; and even without the motion for new trial, this was within the 30-day period after the decree, during which the parties were barred from remarriage. On July 29, 1982, the trial court in Texas overruled the motion for new trial and Palmer filed an appeal with the Texas Court of Civil Appeals. According to the record presently before us, that appeal is still pending.

The question then specifically presented to us is whether Charles Palmer and Cheri Palmer were still husband and wife on June 8, 1982, when Mrs. Palmer testified against Palmer. If they were husband and wife on June 8, 1982, § 27-505(2) clearly precluded Cheri Palmer from testifying without Palmer's consent. One may argue that the underlying basis for the husband and wife privilege no longer existed in this case and therefore the statute should be so interpreted as to permit Cheri Palmer's testimony. This court, however, is without authority to do that. As we have previously noted, in the construction of a statute which is clear and unambiguous, courts cannot supply missing language, and it is not within the court's power to read into a statute meaning which the clear language of the statute does not warrant. See Omaha Public Schools v. Hall, 211 Neb. 618, 319 N.W.2d 730 (1982). Moreover, where the language of the statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language. See State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981). The Legislature, in adopting § 27-505(2), has barred the testimony of one spouse against another in a criminal case, except as specifically exempted, and we are powerless to ignore its direction.

While at first blush it may appear important to determine which law, Texas or Nebraska, should be applied in determining whether the divorce decree was final and therefore the Palmers no longer spouses, on closer examination it appears to make little difference, because, under either law, the divorce was not final. The law in both Texas and Nebraska seems clear that the relationship of husband and wife continued certainly while the motion for new trial was pending and during the time of appeal. Texas has on two specific occasions directly responded to this question. In the case of Davis v. The State, 96 Tex.Cr. 367, 257 S.W. 1099 (1924), the Texas Court of Criminal Appeals reversed a murder conviction because the defendant's wife, who had been granted a divorce, testified on behalf of the State at the trial which occurred while the divorce was pending on appeal. Specifically, the Texas Court of Criminal Appeals held that while a divorce was pending on appeal the wife could not testify against her husband. The rule in Davis was reaffirmed by the Texas Court of Criminal Appeals in Acker v. State, 421 S.W.2d 398 (Tex.Cr.1967). As in the Davis case, Acker, the defendant, was charged with murder. Shortly after the case was set for trial, the State requested a continuance on the grounds that the only eyewitness, the defendant's wife, was presently in the process of obtaining a divorce so that she might testify against him. When the motion for continuance was overruled, the State dismissed the criminal charges. The defendant's wife subsequently divorced him and the charges were later refiled. However, at the time of the defendant's criminal trial, the divorce case was pending in a Texas Court of Civil Appeals. The trial court overruled the defendant's motion in limine, as well as his objections at the time of trial to any testimony by his wife. In reversing the defendant's conviction the Texas appeals court specifically concluded that after rendition of a decree of divorce but before the divorce became effective to change the status of the parties, they are husband and wife with respect to their competency to testify against one another. Specifically, the Texas court held that the pendency of the appeal precluded the divorce from becoming effective so as to change the status of the parties. See, also, Ex Parte J.C. Hodges, 130 Tex. 280, 109 S.W.2d 964 (1937).

The Texas rule is consistent with the general rule. In 97 C.J.S. Witnesses § 80 at 474-75 (1957), the author notes: "Where a decree of divorce is not final, as where there is a writ of error pending, the status of husband and wife continues as far as concerns their competency to testify. During the period after rendition of the decree and before a divorce becomes effective to change the status of the parties, the parties are husband and wife with respect to their competency to testify for or against each other."

While it appears that Nebraska has never directly passed upon this question, it would appear that the laws regarding divorce in Nebraska are such that a similar rule would apply. Neb.Rev.Stat. § 42-372 (Reissue 1978) specifically provides in part: "A decree dissolving a marriage shall not become final or operative until six months after the decree is rendered, except for the purpose of review by appeal, and for such purpose only the decree shall be treated as a final order as soon as rendered. If an appeal is instituted within one month, such decree shall not become final until such proceedings are finally determined. If no such proceedings have been instituted, the court may, at any time within such six months, vacate or modify its decree." (Emphasis supplied.) Furthermore, we have consistently held that in an appeal to the Supreme Court from a decree of dissolution, the marital status continues until a final determination is had. Lippincott v. Lippincott, 141 Neb. 186, 3 N.W.2d 207 (1942); Westphalen v. Westphalen, 115 Neb. 217, 212 N.W. 429 (1927). Moreover, if one of the parties dies before the 6-month period has expired, the surviving party once again becomes the surviving spouse, entitled to all of the rights and privileges of a surviving spouse. In re Estate of Waller, 116 Neb. 352, 217 N.W. 588 (1928).

It would appear that we have no choice but to determine that Cheri Palmer was still the wife of Charles Jess Palmer on June 8, 1982, and as such was barred from testifying against him. Nor can we regard the error as being nonprejudicial. Her testimony was that of an eyewitness to the alleged crime, and we cannot possibly say that her...