State v. Suttles

• Decision Date: 03 July 1979
• Citation: 287 Or. 15,597 P.2d 786
• Parties: The STATE of Oregon, Petitioner, v. Carl Glenn SUTTLES, Respondent. TC 1580; CA 10564; SC 26044. . *
• Court: Oregon Supreme Court

Page 786

597 P.2d 786

287 Or. 15

The STATE of Oregon, Petitioner, v. Carl Glenn SUTTLES, Respondent.

TC 1580; CA 10564; SC 26044.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted May 30, 1979.

Decided July 3, 1979.

Jesse R. Himmelsbach, Jr., Dist. Atty., Baker County, argued the cause and filed the brief for petitioner.

Bruce David Thomas, Certified Law Student, Salem, argued the cause for respondent. With him on the brief were Gary D. Babcock, Public Defender, and J. Marvin Kuhn, Deputy Public Defender, Salem.

TONGUE, Justice.

This is a criminal case in which defendant appealed from his conviction for sodomy upon his nine-year-old stepson. Defendant's sole assignment of error was that a letter he wrote to his wife while in jail awaiting trial was improperly admitted into evidence. The Court of Appeals agreed, reversing the judgment of conviction and remanding the case for a new trial. 37 Or.App. 695, 588 P.2d 635 (1978). We granted review because of our concern with the question whether the Court of Appeals was correct in its holding that the letter was privileged as a "confidential communication" in a criminal prosecution for sodomy upon a child.

Defendant was arrested on September 9, 1977, and charged with committing first degree sodomy upon his stepson, Danny. The alleged incident took place sometime between August 10, 1977, and August 20, 1977. These proceedings were initiated by a police officer to whom Danny related his story. A preliminary hearing was held on September 16th, at which Danny testified that defendant had committed the crime as charged. Defendant was present at that hearing.

Thereafter, while awaiting trial in the Baker County Jail, defendant wrote the letter in question to his wife. The letter contained the following passages:

" * * * I really don't know what to write, except that I am going to the state hospital at Salem for awhile, and from there, I don't know. I asked for help, God I need it. I didn't know I was so sick until I heard the testimony of the kids. (M)aybe time will cure me and the help of Doctors * * *.

" * * *

"Alcohol has made a total wreck out of me and I can't quit it by myself. I need help. * * * "

Defendant's wife voluntarily delivered this letter to the district attorney. The letter was then offered by the prosecution as evidence at trial. It was admitted over defendant's objection that the letter was privileged as a marital communication, and was also either irrelevant or that any probative value it might have was outweighed by its prejudicial effect.

On appeal, the Court of Appeals concluded that the letter was a marital communication for purposes of ORS 44.040(1)(a), which it held to apply to criminal trials, and was therefore inadmissible unless an exception to the privilege were found to apply. 37 Or.App. at 699-700, 588 P.2d 635. After examining the various exceptions urged by the state, the Court of Appeals concluded that no exception was applicable, and that the letter was improperly admitted into evidence. 37 Or.App. 705, 588 P.2d 635. ¹ The Court of Appeals therefore reversed the judgment of conviction and remanded the case for a new trial.

The state then petitioned for review by this court, presenting three basic arguments for reversal of the Court of Appeals decision:

(1) That ORS 44.040(1)(a) does not apply to criminal prosecutions (2) That "(w)hen a father-husband commits sodomy or rape upon his stepchild, he also commits a crime against the mother-wife, within the meaning of the exception to ORS 44.040(1)(a);" and

(3) That the letter was admissible by virtue of ORS 418.775.

In accepting review, this court instructed counsel to present arguments directed to the question whether ORS 418.775 abrogated the husband-wife communications privilege in cases involving child abuse, and therefore made the letter admissible. Because we now conclude that ORS 418.775 does this, we need not decide the other contentions made by the state. We will assume, however, for purposes of this case, that ORS 44.040(1)(a) is applicable to criminal prosecutions.

We begin our analysis by noting that two distinct marital privileges existed at common law. One privilege, which may be designated the "testimonial" privilege, prohibited the examination of a husband or wife for or against the other in a legal proceeding, with some exceptions. The second, which may be called the "communications" privilege, prohibited examination into confidential communications between spouses, again with some exceptions. McCormick on Evidence, § 66, p. 144 and § 78, p. 161 (2d ed. 1972).

These two privileges have been codified by statute in Oregon in ORS 44.040(1) (a), as follows:

"(1) There are particular relations in which it is the policy of the law to encourage confidence, and to preserve it inviolate; therefore a person cannot be examined as a witness in the following cases:

"(a) A husband shall not be examined for or against his wife without her consent, or a wife for or against her husband without his consent (the testimonial privilege); nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage (the communications privilege). The exception does not apply to a civil action, suit or proceeding, by one against the other, or to a criminal action or proceeding for a crime committed by one against the other."

This case involves the "communications" privilege. ²

If, as we have assumed, ORS 44.040(1)(a) is applicable to criminal trials, it is made so by ORS 136.430, which provides:

"The law of evidence in civil actions is also the law of evidence in criminal actions or proceedings, Except as otherwise specifically provided in the statutes relating to crimes and criminal procedure." (Emphasis added)

The "statutes relating to crimes and criminal procedure" include a provision specifically relating to the marital privilege. ORS 136.655, enacted in 1880 (O.L.1880, sec. 2, pp. 28-29), states as follows:

"In all criminal actions in which the husband is the party accused, the wife is a competent witness and when the wife is the party accused, the husband is a competent witness; but neither husband nor wife in such cases shall be compelled or allowed to testify in such cases unless by consent of both of them; provided, that in all cases of personal violence upon either by the other or of personal violence Or other unlawful act committed against any minor child of either or both of the parties, the injured party, husband or wife, shall be allowed to Testify against the other * * *." (Emphasis added)

In other words, in a criminal case such as this one involving an unlawful act committed against a child, ORS 136.655 specifically abrogates the "testimonial" privilege and would permit the wife here to "testify" against the defendant-husband. It does not, however, specifically abrogate the communications privilege. For this reason, if (as we have assumed) ORS 44.040(1)(a) applies to criminal trials, and if no exception is applicable, a letter in a case such as this one would be covered by the communications privilege found in ORS 44.040(1)(a) and would therefore be inadmissible unless (as required by ORS 136.430) that privilege is specifically abrogated elsewhere.

ORS 418.775, however, would appear to do just that abrogating both the testimonial and communications privileges found in ORS 44.040(1)(a) in cases involving the "abuse" of a child, which is defined in ORS 418.740(1)(c) to include "(s)exual molestation." ORS 418.775 provides:

"(1) In the case of abuse of a child, as defined in ORS 418.740, the physician-patient privilege, the husband-wife privilege, and the privilege extended to staff members of schools and to nurses under ORS 44.040 shall not be a ground for excluding evidence regarding a child's abuse, or the cause thereof, in any judicial proceeding resulting from a report made pursuant to ORS 418.750.

"(2) In any judicial proceedings resulting from a report made pursuant to ORS 418.750, either spouse shall be a competent and compellable witness against the other."

Defendant contends, however, that ORS 418.775 does not abrogate the ORS 44.040(1)(a) communications privilege in this case for two reasons: First, defendant contends that ORS 418.775 does not meet the requirement of ORS 136.430 (quoted above) that "the law of evidence in civil actions" (i. e., the communications privilege found in ORS 44.040(1)(a)) can only be abrogated by a "statute relating to crimes and criminal procedure." Defendant argues that 418.775 is Civil in nature, being found in those provisions of the Oregon Revised Statutes dealing with Child Welfare Services, and does not fall within the chapters relating to crimes and criminal procedure. ³ Second, defendant contends that "(t)he words and design of the statutory body encompassing ORS 418.740 to 418.775" clearly indicate that the words "any judicial proceeding" found in ORS 418.775(1) were not intended to include criminal proceedings so as to abrogate the husband- wife communications privilege in criminal proceedings. Quoting from ORS 418.745, ⁴ defendant argues as follows:

"The purpose of ORS 418.740 et seq. is to protect the welfare of abused children by requiring mandatory reports and investigations. The subsequent prosecution of the offender is not a concern of this particular statutory body. Instead, the concern is with finding out if the child is in danger and if so, with providing adequate protective measures.

"Consequently, it is clear that the 'judicial proceedings' referred to by ORS 418.775(1) are those civil proceedings wherein a juvenile court is required to decide if the child is in danger. * * * "

Defendant's two contentions may be answered by an examination of the legislative history of ORS 418.775. This section was originally numbered 146.770. We begin our examination by analyzing ORS 146.710 et seq....