State v. Wilson

• Decision Date: 02 November 2005
• Docket Number: No. 49S05-0501-CR-6.,49S05-0501-CR-6.
• Citation: 836 N.E.2d 407
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. Dow WILSON, Appellee (Defendant below).
• Court: Indiana Supreme Court

Page 407

836 N.E.2d 407

STATE of Indiana, Appellant (Plaintiff below), v. Dow WILSON, Appellee (Defendant below).

No. 49S05-0501-CR-6.

Supreme Court of Indiana.

November 2, 2005.

Steve Carter, Attorney General of Indiana, Joby Jerrells, Deputy Attorney General, Indianapolis, for Appellant.

Ellen M. O'Connor, Marion County Public Defender Agency, Indianapolis, for Appellee.

BOEHM, Justice.

We hold that one spouse is not precluded from testifying in a criminal prosecution of the other.

Factual and Procedural Background

In January 1999, Dow and Heidi Wilson, husband and wife, were approved for subsidized Section 8 housing. After the Indianapolis Housing Authority received a tip alleging that some of the information in the Wilsons' Section 8 housing applications was fraudulent, an investigation revealed questionable items in the application, and both Dow and Heidi were charged with welfare fraud and theft. The State granted Heidi use immunity in exchange for her agreement to testify against Dow. When the State called Heidi at Dow's trial, Dow objected to her testimony on two grounds. First, he argued that the marital privilege, Indiana Code section 34-46-3-1(4), barred Heidi's testimony as to communications between them. He also contended that because he was the accused in a criminal prosecution he was not required to testify, and therefore Heidi, as his spouse, was barred from testifying by Indiana Code section 34-46-3-2. The trial court agreed with the second contention and certified the ruling for interlocutory appeal. On appeal, the Court of Appeals did not address the claim on its merits, but held that the State had waived its challenge to the exclusion of Heidi's testimony by failing to submit a proper offer of proof. State v. Wilson, 816 N.E.2d 61, 63 (Ind.Ct.App.2004). This Court granted transfer. State v. Wilson, 831 N.E.2d 733 (Ind.2005).

I. Offer of Proof

Dow initially argues that the State waived its objection to the exclusion of Heidi's testimony by failing to make an adequate offer of proof as required by Indiana Evidence Rule 103(a)(2). The Court of Appeals agreed.

Dow objected to Heidi's testimony at trial on the ground of marital privilege and also on the ground that she was barred from testifying altogether. The State responded:

I think for one this is a little premature, because they don't know if our questions are even going to ask about spousal communication, which I'm not sure that they will. I think our questions are going to be more directed as to, "Ms. Wilson, on January 19th of 1999, did you go to the office of Housing Authority and put in an application for Section 8 rent? Who accompanied you there?" That is not spousal communication. So, I think this is premature in that they haven't heard the questions, yet. We haven't asked a question that's relating to marital privilege. We're going to ask Ms. Heidi Davie Wilson what she did on a certain date and who was with her.

Dow claimed that Heidi, as Dow's spouse, was precluded from testifying against him irrespective of the subject matter of her testimony. As to that claim, the only requirement of an offer of proof is that it indicate the relevance of the offered testimony and that it would not violate some rule of evidence such as hearsay. An offer ordinarily should explain the witness's expected testimony, not the questions to be asked. However, in the case at hand, the only issues were relevance and whether Heidi's testimony would invade a privilege. It was clear from the context that the State intended to show that Dow and Heidi applied for Section 8 housing together and that Heidi's testimony was to establish that fact. The State's explanation was sufficient to show its relevance and that Heidi's account of who was with her was admissible under the Rules of Evidence.

Dow also raised an objection based on marital privilege, which protects only confidential communications. As to that claim, in addition to relevance and competence of the witness, the offer of proof should show that no privilege would be invaded. Whether Heidi accompanied Dow at the time of the application and who else was present do not call for communications at all, so the State's explanation was enough to show that it did not seek to elicit any confidential communications. The offer was therefore sufficient as to both objections.

The purpose of an offer of proof is to convey the point of the witness's testimony and provide the trial judge the opportunity to reconsider the evidentiary ruling. Baker v. State, 750 N.E.2d 781, 785-86 (Ind.2001) (quoting 1 McCormick on Evidence § 51, at 217 (John W. Strong et. al., 5th ed.1999)). Equally important, it preserves the issue for review by the appellate court. Id. To accomplish these two purposes, an offer of proof must be sufficiently specific to allow the trial court to determine whether the evidence is admissible and to allow an appellate court to review the correctness of the trial court's ruling and whether any error was prejudicial. 1 McCormick, supra, at 218.

The Court of Appeals, applying language from this Court's decision in Hilton v. State, 648 N.E.2d 361 (Ind.1995), found the State's offer insufficient. Hilton first noted that an offer of proof should indicate the facts sought to be proved and establish the "competency, and relevancy of the evidence offered." Id. at 362 (citing Tope v. State, 266 Ind. 239, 362 N.E.2d 137, 142 (1977), cert. denied, 434 U.S. 869, 98 S.Ct. 209, 54 L.Ed.2d 146 (1977)). We agree with this general formulation. However, Hilton went on to find the offer of proof in that case insufficient because it "lack[ed] specificity and fail[ed] to establish such material facts as when the conversation took place, where the conversation took place, and who was present at the time." Id. Hilton also questioned the offer in that case on the ground that "Hilton phrase[d] his offer of proof `I believe,' and he fail[ed] to adequately assure the court that the offer truly represent[ed] the substances of [the] testimony." Id. We think this language from Hilton must be reconsidered.

The language in Hilton that would require time and place and other details overstates the requirements for an adequate offer of proof. An offer of proof should show the facts sought to be proved, the relevance of that evidence, and the answer to any objection to exclusion of the evidence. Details that are immaterial to the ultimate facts are not necessary. Where and when a conversation took place ordinarily are irrelevant to any issue before the court. In this case the date and other persons present were not critical to any issue before the court. To the extent Hilton suggests they are generally required it is disapproved.

We also disapprove the language from Hilton suggesting that an offer of proof must vouch for the anticipated testimony. There is nothing wrong with an offer of proof that prefaces the proffered testimony with "We expect the witness to testify that ..." or "I believe." The attorney making an offer of proof must have a good faith and reasonable belief that the witness will testify as the attorney states, but the attorney is not a warrantor of the witness's reliability and should not vouch for the witness. Indeed, many attorneys have endured witnesses who changed their stories on the stand from the version they had given the attorney under circumstances where the attorney had no reason to question the original version until the witness recanted on the stand.

Finally, we observe that, as explained in Glover v. State, 836 N.E.2d 414 (Ind.2005), the privilege can be waived by either Heidi, as the testifying spouse, or by Dow. Even if the information was potentially privileged, we assume Heidi's plea agreement may have committed her to waive any marital privilege issue. In any event, if that is not the case, we assume she expected to waive the privilege by testifying without asserting it. The offer of proof was sufficient to preserve these issues for appeal.

II. The Marital Privilege

Dow contends that the marital privilege prevents his wife from testifying to the events surrounding the application. Dow's contention relies on Indiana Code section 34-46-3-2 which is grounded in statutory language first introduced in the 1998 recodification of hundreds of sections of the Indiana Code. We reject his contention, although we agree that the language of the new statute seems to support it.

A. The Pre-1998 Statutory Provisions

In 1997 only two statutory provisions addressed husband and wife as witnesses. The first, the marital privilege appeared along with other statutory privileges in a single section of the chapter entitled "Witnesses" in the "Civil Code of 1881" article of the Indiana Code. This statute was couched in terms of competence, not privilege. See Indiana Code § 34-1-14-5 (Burns Code Ed. Repl.1997). It provided: "Except as otherwise provided by statute, the following persons shall not be competent witnesses: ... (5) Husband and wife, as to communications made to each other." Id. (italics supplied). Subsections (1) through (4) identified attorney/client, physician/patient, and other privileges, all prefaced by the "shall not be competent witnesses" lead-in.

Although the statute referred to husbands and wives as being incompetent witnesses as to "communications made to each other" it was long held that this section created a privilege, not a disqualification of the witness. It protected only confidential communications between spouses, and did not prevent a spouse from testifying as to any other matter.¹

Before the 1998 recodification, the "Witnesses" chapter of the article entitled "Civil Code of 1881" also included a Competency Statute. Indiana Code section 34-1-14-9 (Burns 1986) provided "[w]hen the husband or wife is a party, and not a competent witness in his or her own behalf, the other shall also be excluded." This language had been applied only in will disputes, cases involving the dead...