State v. Robinson

• Decision Date: 21 December 1988
• Docket Number: No. 17989,17989
• Citation: 180 W.Va. 400,376 S.E.2d 606
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Andrew French ROBINSON.

Page 606

376 S.E.2d 606

180 W.Va. 400

STATE of West Virginia v. Andrew French ROBINSON.

No. 17989.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1988.

Syllabus by the Court

1. The privilege against disclosure of confidential marital communications embodied in W.Va.Code § 57-3-4 (1966) prohibits disclosure of knowledge derived from observation of the acts or conduct of one's spouse undertaken or performed in reliance on the confidence of the marital relation.

2. The test of whether acts of a spouse come within the privilege against disclosure of confidential marital communications is whether the act or conduct was induced by or done in reliance on the confidence of the marital relation, i.e., whether there was an expectation of confidentiality.

3. "A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that a defendant's waiver is voluntary, knowing, and intelligent by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right." Syllabus point 7, State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988).

Richard A. Bush, Bush & Trippel, Parkersburg, for appellant.

Jill Miles, Asst. Atty. Gen., for appellee.

McGRAW, Justice:

This is an appeal by the appellant, Andrew French Robinson, from his conviction in the Circuit Court of Ritchie County of two counts of manufacturing a controlled substance. The appellant's principal contention on appeal is that the trial court erred in allowing his former wife to testify at trial as to his conduct during their marriage. We agree, and we reverse the judgment of the circuit court.

The appellant and Barbara Bartz Robinson were married in 1976 and resided in Harrisville, Ritchie County. In February 1983, the couple were divorced. As part of the divorce settlement, Mrs. Robinson was granted title to the marital home, with a right of unlimited access to and use of an outbuilding ¹ located on the property reserved to the appellant for a period of one year.

On May 27, 1983, police obtained Mrs. Robinson's consent to search the outbuilding and seized a quantity of marijuana plants found growing there. The appellant was subsequently indicted on separate charges of unlawful manufacture of a controlled substance, a felony, in 1981, 1982 and 1983 respectively. By agreement with the State, Mrs. Robinson was allowed to plead guilty to a lesser charge of possession of marijuana and was placed on probation.

Prior to trial, defense counsel filed a motion in limine to exclude as privileged marital communications any testimony by Mrs. Robinson concerning her conversations with the appellant or observations of his actions during the marriage. The trial court ruled that any oral communications between the appellant and the witness during the marriage were privileged and, therefore, inadmissible, but subsequently allowed Mrs. Robinson to testify as to her observations of her husband's conduct and actions during that period.

The appellant's trial was conducted before a jury in the Circuit Court of Ritchie County in November 1983. Mrs. Robinson testified that she had observed the appellant watering, pruning and harvesting marijuana plants grown in the outbuilding in 1981 and 1982. Mrs. Robinson admitted that she alone had planted the marijuana seized by the police in May 1983, but testified that her former husband had offered advice and assistance in the cultivation of the 1983 marijuana crop and had announced his intention to take one-half of the harvest as his due. The appellant denied any involvement in the cultivation of the 1983 crop and stated that he had advised his former wife to destroy the plants. On cross-examination, however, the appellant admitted that he had planted, cultivated and harvested marijuana in the greenhouse in 1981 and 1982.

On November 9, 1983, the jury returned a verdict finding the appellant guilty of manufacturing marijuana in 1981 and 1982, but not guilty of manufacture of the 1983 crop. By order dated December 16, 1983, the trial court denied the appellant's motion to set aside the verdict and sentenced him to a term of 18 months' probation.

I.

The appellant's principal contention on appeal is that the testimony of his former wife as to her observations of his actions during the marriage should have been excluded by the trial court as privileged marital communications. The privilege against disclosure of confidential marital communications is embodied in W.Va.Code § 57-3-4 (1966):

Neither husband nor wife shall, without the consent of the other, be examined in any case as to any confidential communication made by one to the other while married, nor shall either be permitted, without such consent, to reveal in testimony after the marriage relation ceases any such communication made while the marriage existed.

This provision represents a codification of the common-law rule excluding from evidence testimony of one spouse relating to confidential communications made by the other during the marriage. ² See White v. Perry, 14 W.Va. 66 (1878); B. Jones, Evidence § 21:4 (6th ed.1972); 8 J. Wigmore, Evidence § 2333 (McNaughton Rev.1961).

We have recognized that not all marital communications are privileged.

"The essence of the privilege is to protect confidences only. This is inevitably required by the very nature of this class of privileges. The purpose is to insure subjectively the free and unrestrained secrecy of communication, divested of any apprehension of compulsory disclosure; and if the communication is not intended to be a secret one, the privilege has no application to it."

Payne v. Payne, 97 W.Va. 627, 651, 125 S.E. 818, 827 (1924), quoting 5 J. Wigmore, Evidence § 2336 (2d ed.1923). A communication is not confidential, and therefore not privileged, where it is made in the presence of a third party. Nash v. Fidelity-Phenix Life Ins. Co., 106 W.Va. 672, 146 S.E. 726 (1929). Moreover, a communication which was not intended to be a confidence of matrimony, such as a threat not to allow the wife to return to the marital home if she left to visit a relative, has been held not to be within the protection of the marital privilege. Fuller v. Fuller, 100 W.Va. 309, 130 S.E. 270 (1925). Generally, however, communications made in private between husband and wife are presumed to be confidential until the contrary is shown. Payne v. Payne, supra See Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 (1934).

The above-cited cases concerned conversations or oral statements made during the marriage. This Court has never decided whether the physical actions or conduct of a spouse may constitute "communications" within the meaning of W.Va.Code § 57-3-4. Indeed, we expressly left the question open in State v. Evans, 172 W.Va. 810, 287 S.E.2d 922 (1982).

Virginia, however, has addressed the issue. In Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9 (1949), a witness was permitted to testify at trial that when her then-husband returned home at about midnight on the night of a murder, armed robbery and theft of a safe, he had appeared "somewhat nervous" and had placed a pistol, later found to be the murder weapon, on the mantel. She further testified that she had subsequently observed her husband "messing with the lid" to the trunk of his car, later found to have been used in the robbery, and that she drove him several times around the area where the stolen safe was later found.

In interpreting a statute almost identical to W.Va.Code § 57-3-4, ³ the Virginia court reviewed the conflicting decisions in other jurisdictions and concluded:

The weight of authority, and in our opinion, on principle, the better view, extends the privilege beyond mere utterances or written words. Inherent in the privilege is the fundamental purpose to protect from public exposure confidences of the marital relation.

It is far better that occasional hardships be suffered and that crime sometimes go unpunished than to limit confidential communications between husband and wife to mere spoken or written words. That would render susceptible of and expose to public observation and knowledge all confidential conduct, transactions and acts not consisting of spoken or written words, which the continued tranquility, integrity and confidence of their intimate relation demands to be shielded and protected by the inviolate veil of the marital sanctuary. The purpose and security of the privilege would be partially and materially defeated and destroyed by any less inclusive interpretation of the language of the statute.

It is difficult to formulate any rule by which various matters transpiring between spouses may be readily catalogued and correctly classified as "communications privately made". Yet, in our opinion, the immunity and ban of the statute applies to and includes all information or knowledge privately imparted and made known by one spouse to the other by virtue of and in consequence of the marital relation through conduct, acts, signs, and spoken or written words.

189 Va. at 911-912, 55 S.E.2d at 15. On this basis, the court ruled that all of Mrs. Menefee's testimony should have been excluded at trial and reversed the conviction. See Osbourne v. Commonwealth, 214 Va. 691, 204 S.E.2d 289 (1974).

A number of jurisdictions ⁴ have adhered to the same view, holding that in order to give effect to the public policy behind the privilege, the term "communication" must be liberally construed to embrace "knowledge derived from the observance of disclosive...