State v. Suttles

• Decision Date: 26 December 1978
• Docket Number: No. 1580,1580
• Citation: 588 P.2d 635,37 Or.App. 695
• Parties: STATE of Oregon, Respondent, v. Carl Glenn SUTTLES, Appellant. ; CA 10564.
• Court: Oregon Court of Appeals

Page 635

588 P.2d 635

37 Or.App. 695

STATE of Oregon, Respondent, v. Carl Glenn SUTTLES, Appellant.

No. 1580; CA 10564.

Court of Appeals of Oregon.

Argued and Submitted Aug. 22, 1978.

Decided Dec. 26, 1978.

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

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

Before SCHWAB, C. J., and THORNTON and TANZER, JJ.

THORNTON, Judge.

Defendant appeals from conviction for sodomy upon his nine-year-old stepson. His sole assignment of error is the admission into evidence of a letter written to his wife while he was incarcerated awaiting trial. Defendant contends the letter should not have been admitted, first, because it is a confidential communication between spouses, and second, because it was irrelevant to the charge upon which he was tried. We reverse.

At the preliminary hearing the stepson testified to the incident. Subsequent to the hearing, defendant wrote the letter in question to his wife, which the wife voluntarily turned over to the prosecution. The letter contained the following language:

" * * * I didn't know I was so sick until I heard the testamony (sic) of the kids. (M)aybe time will cure me and the help of Doctors * * *.

" * * * * *

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

First, we will consider defendant's contention that the letter was a confidential communication to his spouse and was therefore inadmissible under ORS 44.040(1)(a), which provides:

"(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; 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 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."

The state strenuously argues that the statute does not apply to criminal trials, relying upon a line of older Supreme Court cases decided between 1899 and 1926 to that effect. ¹ But a careful reading of those cases leads us to the conclusion that the references relied upon by the state were, for the most part, dicta. As one commentator has noted:

"It would appear that the proper statutory construction and an analysis of the cases indicate that section 44.040(1) as it applies to the marital privilege has not as yet been excluded from criminal cases. But it appears equally obvious that the trend in the cases is to cite the dicta and apparent meaning of the earlier cases, so that in the future the matter may indeed come to be 'settled' in favor of excluding the privilege from criminal cases." Hurley, Privileged Communications in Oregon, 36 Or.L.Rev. 132, 136-37 (1957).

Whatever "trend" is discernible from the earlier cases seems to have ceased in 1926. None of the cases cited by the state has since been relied upon by the Supreme Court for the stated proposition, and the Supreme Court has indicated more recently that the rule is otherwise.

In State v. Bengtson, 230 Or. 19, 29, 367 P.2d 363, 96 A.L.R.2d 150 (1962), the court construed ORS 44.040(1)(f), involving the confidentiality of communications made to a stenographer by her employer. The court there held that the communication was not made to the stenographer acting in that role, and was therefore admissible; but there was no intimation that the statute was not applicable in that criminal proceeding. One year later, in State v. Betts, 235 Or. 127, 384 P.2d 198, 7 A.L.R.3d 1445 (1963), the court indicated that the proper construction of ORS 44.040 depends upon the historical context in which the privilege was created, and the specific verbal context in which it was placed by the legislature. Noting that the legislature limited the doctor-patient privilege codified at ORS 44.040(1)(d) to civil actions, and further noting the historical antipathy for the privilege, the court held it to not apply in criminal cases. In so deciding, the court made clear that the statute is divisible and dependent upon the specific references within each subsection setting forth a different privilege. In this regard the court observed that the marital communications privilege is only partially limited:

" * * * The specific words of the statute restrict parts of it to civil actions, a part to criminal proceedings, and parts have no restrictions stated. In the subsection relating to husband and wife it states, 'The exception does not apply to a civil action, suit or proceeding, by one against the other, or to criminal action or proceeding for a crime committed by one against the other.' " 235 Or. at 138, 384 P.2d at 204.

Applying the court's modern analysis, the marital communications privilege has at least in principle been long recognized and respected. 8 J. Wigmore, Evidence 644-45, § 2333 (McNaughton rev. 1961). And the court's observation that the privilege is only partially restricted by statute is a clear indication that the privilege is not more limited.

Although this court has applied ORS 44.040 in several instances, ² only once have we been called upon to construe the marital communications privilege of ORS 44.040(1)(a). In that case, State v. Lindley, 11 Or.App. 417, 419, 502 P.2d 390 (1972), Rev. den. (1973), we held that ORS 44.040(1)(a) codifies the common-law " 'confidential communications' privilege," but that the facts did not bring the case within the privilege. We did not hold the privilege inapplicable to criminal cases. It is our conclusion that ORS 44.040(1)(a), while perhaps inartfully drawn, is a codification of the confidential communications privilege recognized at common law as distinct from the privilege against testifying. ³

That the privilege applies is only the first hurdle. We now turn to the exceptions to the privilege, which originate in the common law, in other legislative enactments and in the statute itself.

The state argues that

" * * * even if ORS 44.040 should be held to have application in criminal cases, the letter was not a confidential communication. It was written by the defendant while he was in jail. He had had ample experience with conditions of confinement, and was bound to know third persons had the right to read his out-going mail. See State v. McCoy, 270 Or. 340, 527 P.2d 725 (1974) and Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L. (E)ed.2d 224 (1974). * * * "

The answer is that the settled law in Oregon is that the communication does not have to be "confidential" if the defendant could reasonably expect that the material would not be published. Although "(i)t is generally held that communications made in the presence of third persons are not privileged," Pugsley v. Smyth, 98 Or. 448, 480, 194 P. 686, 696 (1921), ⁴ we cannot Assume the defendant's mail was read by third persons. At trial the state's attorney argued, as he does here, that the letters were not confidential, having been read by jail personnel. Defendant's counsel rejoined:

"That is not my understanding of the facts. My understanding of the facts is that the letters of prisoners held down there for trial are not censored and that's what's been represented to the defendant. * * * "

The facts having been disputed, it was incumbent upon the state to come forward with evidence to bring itself within the exception carved out by Pugsley. It did not. Even assuming arguendo that the fact that the letter had been read by jail personnel might bring the case within the exception set forth in Pugsley, there was no evidence here that the letter had been read by jail personnel.

Closely related to the issue of confidentiality is the issue of availability of the letter. Of course, if the spouse's production of the letter for the prosecution is sufficient to vitiate the confidentiality of the letter, it is properly admissible. On this issue, the authorities appear to distinguish between those communications which are produced through happenstance, analogous to an eavesdropper, and those communications which are voluntarily produced by the recipient of the communication, analogous to a breach of confidentiality.

The case of State v. Wilkins, 72 Or. 77, 142 P. 589 (1914), involved the admissibility of letters from spouse to defendant seized from defendant's person upon his arrest. The court apparently limited its sanction of the introduction of the letters to the facts of the case, I. e., they were forcefully taken from the defendant, and were not voluntarily divulged by a party to the communication. ⁵ "It will be observed that the statutes are directed against the examination of either spouse as a witness, and not against communications between them, the knowledge of which is derived from independent sources.***" 72 Or. at 80, 142 P. at 590. (Emphasis supplied.) Several passages in the court's opinion lend support to the proposition that a voluntary breach of the confidence gives rise to a different rule. ⁶

The opinion's cited language and the apparent analysis contained therein comport with the general rule as discussed by Wigmore.

"For Documents of communication coming into the Possession of a third person, a distinction should obtain, analogous to that already indicated for a client's communications * * *. That is, if they were obtained from the addressee spouse by voluntary delivery, they should still be privileged * * * ; but if they were obtained surreptitiously or otherwise without the addressee's consent the privilege should...