State v. Rahman
| Decision Date | 30 April 1986 |
| Docket Number | No. 84-1961,84-1961 |
| Citation | 23 Ohio St.3d 146,23 OBR 315,492 N.E.2d 401 |
| Parties | , 23 O.B.R. 315 The STATE of Ohio, Appellee, v. RAHMAN, a.k.a. Smiley, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Although a spouse may be competent to testify in a criminal trial, R.C. 2945.42 confers a substantive right upon the accused to exclude privileged spousal testimony concerning a confidential communication made or act done during coverture unless a third person was present or one of the other specifically enumerated exceptions contained in the statute is applicable.
On Tuesday, September 13, 1983, the body of twenty-year-old DeWayne Taylor was discovered in the basement of the home he shared with his mother, brothers and stepfather Abdallah Rahman, appellant herein. Taylor had been beaten about the head with a hammer-like object and had been stabbed eight times in the chest. He was last seen alive on Monday, September 12, sleeping in an upstairs bedroom. At trial, the state contended that Taylor had been murdered that Monday morning. The evidence showed that Taylor had been killed as he lay sleeping and that his body had been dragged downstairs, over the back porch and into the basement of his home.
Appellant was indicted and charged with the aggravated murder of Taylor in violation of R.C. 2903.01(A). Appellant pleaded not guilty. Prior to the voir dire of prospective jurors for his trial, appellant challenged the array and sought either the dismissal of the panel or a hearing on his claim that the Richland County Commissioners had excluded minorities from the panel. The trial court overruled this motion.
At trial, and over the objection of appellant that the testimony was incompetent and privileged, appellant's wife was permitted to testify as to confidential marital communications. Appellant's wife told the jury that on the morning of September 12, 1983, as she and appellant were driving their car home from a visit to the welfare office, appellant was in an enraged state and accused her son, the victim, of stealing the family's food stamps.
Appellant took the stand in his own defense. He denied the killing and sought to portray himself as a devout follower of Islam. On cross-examination, the prosecutor questioned appellant concerning the apparent contradiction between his religious beliefs and appellant's admitted gambling activities. On the morning of his second day of testimony, appellant refused to answer any further questions because he felt that the prosecuting and defense attorneys had conspired against him. The jury was immediately dismissed. After conference with his attorney and the trial court, appellant indicated that he did not wish to remain in the courtroom and was taken back to his jail cell. The jury then returned and the trial continued in appellant's absence.
In closing argument, the prosecutor made a reference to appellant's post-arrest silence by reminding the jury that the first time appellant had given his version of what happened was at trial. The prosecutor also characterized appellant as a "hypocrite" and a "liar." The jury found appellant guilty of the offense of aggravated murder and he was sentenced to a term of life imprisonment.
The court of appeals affirmed appellant's conviction.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
John W. Allen, Pros. Atty., and Jerry E. Ault, Mansfield, for appellee.
Randall M. Dana, Public Defender, and S. Adele Shank, for appellant.
Appellant first contends that, pursuant to R.C. 2945.42, 1 his wife was not competent to testify against him at trial. Appellant further argues that allowing his wife to testify concerning privileged marital communications was substantial, prejudicial error in contravention of R.C. 2945.42. Although we reject the first of these contentions, we find merit in the second.
The Rules of Evidence which now govern court proceedings have superseded many of the prior statutes which were procedural in nature. Spousal competency is distinguished from spousal privilege, and each issue is now treated in a separate rule.
Evid.R. 601(B) 2 is a rule of procedure which, as the Staff Note states, is intended to supersede R.C. 2945.42 as to spousal competency. Rule 601(B) provides that one spouse is not competent to testify against the other spouse unless the crime was committed against the testifying spouse or the child of either. In the case sub judice, the victim of this crime was the twenty-year-old child of appellant's wife. As the Staff Note also indicates, this rule was drafted broadly enough to encompass both minor and adult children. Therefore, it is clear that appellant's wife was at least competent to testify against him pursuant to Evid.R. 601(B). Appellant's first contention is thus without merit.
However, the Rules of Evidence in Ohio are limited by Section 5(B), Article IV of the Ohio Constitution to procedural effect only. Evid.R. 601 is inapplicable to the substantive spousal privilege, as the Staff Note emphasizes:
The spousal privilege contained in this statute is preserved by Evid.R. 501, which states:
"The privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience."
Here, again, the Staff Note to the rule reaffirms the continuing precedence of the spousal privilege contained in R.C. 2945.42:
R.C. 2945.42, which codifies the spousal privilege in a criminal trial, thus creates a substantive right which cannot be abridged by this court or any other. The pertinent portion of this statute reads as follows:
" * * * Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife to the other, * * * or neglect or cruelty of either to their children under eighteen years of age or their physically or mentally handicapped child under twenty-one years of age * * *."
Thus, although a spouse may be competent to testify in a criminal trial, R.C. 2945.42 confers a substantive right upon the accused to exclude privileged spousal testimony concerning a confidential communication made or act done during coverture unless a third person was present or one of the other specifically enumerated exceptions contained in the statute is applicable.
Although appellee admits that testimony forbidden by R.C. 2945.42 was allowed at trial, the state asserts that appellant's right to exclude privileged testimony was abrogated by this court in State v. Mowery (1982), 1 Ohio St.3d 192, 438 N.E.2d 897. This assertion is not correct.
The Mowery majority, in dictum, discussed the rule concerning the privilege to exclude adverse spousal testimony as set forth by the United States Supreme Court in Trammel v. United States (1980), 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186. In Trammel, applying federal common-law principles, the United States Supreme Court held that in federal criminal trials, the witness-spouse was vested with this testimonial privilege and could decide whether to testify adversely to the defendant-spouse. Trammel is inapposite to the case sub judice. In Trammel there was no federal statute explicitly excluding testimony as to confidential marital communications or acts such as R.C. 2945.42. Secondly, the Trammel decision was not even necessary to our conclusion in Mowery. No privilege was found in Mowery because of the presence of a third party during the commission of the crime by the defendant-spouse. As Mowery holds in paragraph two of the syllabus:
"An accused may not assert a privilege under R.C. 2945.42 to preclude a spouse from testifying with respect to a crime committed against a third person, where the crime is committed in the known presence of such third person, as well as in the presence of the testifying spouse." (Emphasis added.)
Thus, the Mowery court began and ended its application of the spousal privilege by looking to the controlling statute, R.C. 2945.42, as we must also do in the case sub judice.
Turning to this statute, we can find no exception permitting the testimony of appellant's wife. There was no third person present or within hearing during this conversation as there was in Mowery. The spouse was not the victim of this crime and was not present during its commission. The victim of this crime was not a child of the spouse under the age of eighteen, nor was the victim a physically or mentally handicapped child under the age of twenty-one at the time of this killing. Thus, the trial court erred in allowing appellant's wife to testify concerning privileged marital communications.
We must now determine whether that error was harmless, i.e., error which did not affect a substantial right of the accused. Crim.R. 52(A). 3 We conclude that the admission of this testimony undermined appellant's constitutional right to a fair trial, thus bringing the case sub judice outside the harmless error doctrine.
It is difficult to minimize the prejudicial impact of the testimony of appellant's wife. The fact is that this spouse was erroneously permitted to tell the jury about confidential marital communications between herself and appellant on...
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...decision as to whether to hold a competency hearing once trial has commenced is in the court's discretion." State v. Rahman (1986), 23 Ohio St.3d 146, 156, 23 OBR 315, 492 N.E.2d 401. The right to a hearing "* * * rises to the level of a constitutional guarantee where the record contains `s......
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