State v. Terry

• Citation: 218 N.J. 224,94 A.3d 882
• Court: United States State Supreme Court (New Jersey)
• Decision Date: 22 July 2014
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Yolanda TERRY and Teron Savoy, Defendants–Respondents.

218 N.J. 224

94 A.3d 882

STATE of New Jersey, Plaintiff–Appellant,

v.Yolanda TERRY and Teron Savoy, Defendants–Respondents.

Supreme Court of New Jersey.

Argued March 18, 2014.

Decided July 22, 2014.

William Kyle Meighan, Assistant Prosecutor, argued the cause for appellant (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel).

Brian J. Di Stefano, Bayville, argued the cause for respondent Teron Savoy.

John L. Brown, Jr., argued the cause for respondent Yolanda Terry.

Chief Justice RABNER delivered the opinion of the Court.

As part of a criminal investigation, the State intercepted phone conversations and text messages between a husband and wife, pursuant to a court order. We must decide whether those communications are protected under the marital communications privilege.

Rule 509 of the Rules of Evidence embodies the State's longstanding marital communications privilege. The rule provides that “[n]o person shall disclose any communication made in confidence between such person and his or her spouse.” N.J.R.E. 509. Underlying the privilege are the well-settled public policies to encourage spouses to share confidences and to protect marital harmony and privacy. However, if a bystander or some other private third party overhears a conversation between spouses, generally, the privilege is lost.

State investigators in this matter listened to and reviewed marital communications after they obtained a court order under the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A–1 to –37 (Wiretap Act or Act). The language and history of the Act reveal that the Legislature intended to keep in place the policies that protect otherwise privileged communications between spouses. See N.J.S.A. 2A:156A–11. As a result, conversations between spouses that would otherwise be privileged cannot be intercepted or introduced in evidence under current law. We agree with and affirm the judgment of the Appellate Division in that regard.

This case raises a second issue as well. In its present form, Rule 509 protects communications between spouses about criminal activities they are jointly planning or committing. That aspect of the privilege does not serve its purpose and undermines the public's interest in attaining justice. We therefore propose a crime-fraud exception to the marital communications privilege, similar to the approach that eleven federal circuits and many states have adopted.

Because the proposed amendment presents a fundamental change to the Rules of Evidence with far-reaching consequences, we follow the procedures outlined in the Evidence Act of 1960: we submit a proposed crime-fraud exception—set forth at Appendix A—to the Senate and General Assembly, for their approval by joint resolution, and to the Governor for his signature. See N.J.S.A. 2A:84A–38.

I.

The following facts are based on the State's proffer to the trial court and are not in dispute. At all times relevant to this case, defendants Teron Savoy and Yolanda Terry have been married. In the fall of 2010, the Ocean County Prosecutor's Office was investigating Savoy as the alleged leader of a drug trafficking network. As part of the investigation, the State obtained court orders that authorized wiretaps of two cell phones Savoy used. State v. Terry, 430 N.J.Super. 587, 590, 66 A.3d 177 (App.Div.2013).

Among many hours of interceptions, the State recorded two or three phone calls and intercepted five text messages between Savoy and Terry. Id. at 591, 66 A.3d 177. In those communications, Savoy asked Terry on October 17, 2010 to pick up money from co-defendant Chardel Holman. The State alleges that Savoy had previously fronted heroin to Holman. Id. at 590, 66 A.3d 177.

The State also alleges that on October 17, 2010, the police stopped a Lexus in which Savoy was a passenger. Authorities seized three bags of heroin, $900, and two other cell phones from Savoy. Ibid. In an intercepted text message later in the day, Savoy asked Terry to retrieve something from the seized car. The following day, after getting a warrant, officials searched the Lexus and found nearly twelve grams of heroin. Ibid.

In June 2011, an Ocean County Grand Jury indicted Savoy, Terry, Holman, and twenty others. The indictment charges them with conspiracy to manufacture, distribute, and possess with intent to distribute cocaine and heroin, contrary to N.J.S.A. 2C:5–2, 2C:35–5a, and 2C:35–5b(1). Savoy is also charged with being a leader of a drug trafficking network, N.J.S.A. 2C:35–3, and possession of heroin with intent to distribute, N.J.S.A. 2C:35–5a(1) and 2C:35–5b(3).

Savoy and Terry moved to prevent the State from introducing at trial the phone conversations and text messages between them. They argued that the communications were protected by the marital communications privilege, N.J.R.E. 509. In a detailed oral opinion, the trial judge denied the motion. The court found that the communications were admissible at trial because any confidential communication would be disclosed by a third party—in this case, a law enforcement officer—and not a spouse. The trial court also discussed the crime-fraud exception to the marital communications privilege, which many federal and state courts have adopted, and concluded that “any communication made in this case in furtherance of drug trafficking is [not] worthy of protection.”

Defendants appealed. In a published opinion, the Appellate Division reversed. Terry, supra, 430 N.J.Super. at 610, 66 A.3d 177. The panel rejected defendants' claim that the State had to show a “special need” to wiretap Savoy's cell phones under N.J.S.A. 2A:156A–11. Id. at 593–95, 66 A.3d 177. That issue is not part of this appeal.

The panel also rejected the State's argument that the marital communications privilege did not apply. The Appellate Division reviewed Rule 509 and the Wiretap Act and concluded that the communications in question were protected. Id. at 596–600, 66 A.3d 177. Finally, the panel noted that strong public policy concerns supported applying a crime-fraud exception to the privilege. Id. at 602, 66 A.3d 177. The panel concluded, however, that it could not bypass the procedures of the Evidence Act of 1960, N.J.S.A. 2A:84A–33 to –44, and unilaterally adopt such an exception. Terry, supra, 430 N.J.Super. at 605–10, 66 A.3d 177.

We granted the State's motion for leave to appeal. 214 N.J. 233, 69 A.3d 116 (2013).

II.

The State argues that the marital communications privilege only prevents one spouse from disclosing confidential communications with the other. It contends that the privilege does not bar a third party from testifying “about statements overheard as a result of a valid wiretap order.” The State maintains that certain language in the Wiretap Act—“[n]o otherwise privileged ... communication ... shall lose its privileged character,” N.J.S.A. 2A:156A–11—does not prevent an investigative agent from testifying about an intercepted communication.

Although the State submits that the marital communications privilege does not apply in this case, it argues that New Jersey should adopt a crime-fraud exception to the privilege for use in future cases.

Defendants submitted a joint supplemental brief in which they ask this Court to affirm the judgment of the Appellate Division. Defendants argue that the Wiretap Act expressly bars interception of privileged communications, like the confidential marital communications in this case.

Defendants also argue that New Jersey should not adopt a crime-fraud exception. If the Court decides otherwise, defendants submit that it must follow the procedures in the Evidence Act. In any event, defendants contend that any exception should not apply to this case because the State has not proven that Terry was a participant in the alleged criminal activity.

III.

A.

We first address the State's argument that the privilege does not prevent the State from presenting evidence of confidential communications between spouses, which were intercepted under a wiretap order. The Appellate Division rejected that claim. We discuss the panel's ruling at length because we affirm substantially for the reasons contained in Judge Leone's thoughtful opinion.

The Legislature enacted the modern form of the marital communications privilege as part of the Evidence Act of 1960. See L. 1960, c. 52, § 22 (codified at N.J.S.A. 2A:84A–22). The privilege also appears in Rule 509 of the Rules of Evidence. The current version of the rule provides in part as follows:

No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within [Rule 501(2) ].

[N.J.S.A. 2A:84A–22; N.J.R.E. 509.] ¹

The marital communications privilege “stems from the strong public policy of encouraging free and uninhibited communication between spouses, and, consequently, of protecting the sanctity and tranquility of marriage.” State v. Szemple, 135 N.J. 406, 414, 640 A.2d 817 (1994). The privilege has traditionally been viewed as “essential to the preservation of the marriage relationship.” Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 280, 78 L.Ed. 617, 620 (1934) (citations omitted). One prominent commentator advances another rationale for the privilege: “All of us have a feeling of indelicacy and want of decorum in prying into the secrets of husband and wife.” See1 McCormick on Evidence § 86 at 524 (Broun ed., 7th ed.2013).

The State, relying on the language of Rule 509 and on Szemple, supra, 135 N.J. at 417, 640 A.2d 817, contends that the marital communications privilege is personal to the spouses and does not prevent a third person from testifying. Outside the context of the ...