State v. Zais

• Decision Date: 26 October 2011
• Docket Number: No. A10–1020.,A10–1020.
• Citation: 805 N.W.2d 32
• Parties: STATE of Minnesota, Respondent, v. Thomas Allen ZAIS, Appellant.
• Court: Minnesota Supreme Court

805 N.W.2d 32

STATE of Minnesota, Respondent,

v.Thomas Allen ZAIS, Appellant.

No. A10–1020.

Supreme Court of Minnesota.

Oct. 26, 2011.

Syllabus by the Court

1. The district court's pretrial order had a critical impact on the State's ability to prosecute defendant for the charged offense of disorderly conduct.

2. Under the crime exception to the marital privilege in Minn.Stat. § 595.02, subd. 1(a) (2010), the district court must examine not only the elements of the crime charged but also the underlying conduct to determine whether the crime was “committed by one [spouse] against the other.”

3. Because the conduct underlying the offense of disorderly conduct was directed at defendant's wife, it was “committed by one [spouse] against the other.” As a result, the crime exception to the marital privilege applies, and defendant's wife may testify against defendant regarding the offense of disorderly conduct.

Lori Swanson, Attorney General, St. Paul, Minnesota; and Paul D. Baertschi, Tallen and Baertschi, Minneapolis, Minnesota, for respondent.

William Ward, Chief Hennepin County Public Defender, James A. Kamin, Assistant Public Defender, Minneapolis, Minnesota, for appellant.

OPINION

DIETZEN, Justice.

This case requires us to decide what information the court should consider in determining whether the crime exception to the marital privilege statute in Minn.Stat. § 595.02, subd. 1(a) (2010), applies to the charged offense of disorderly conduct. Appellant Thomas Zais (Zais) was charged, in part, with the offense of disorderly conduct based on a November 15, 2009, incident. Before trial, Zais moved to exclude the proposed testimony of his wife on the ground that it was barred by the marital privilege. The district court concluded that the crime exception to the marital privilege did not apply to the charged offense of disorderly conduct, and therefore his wife was barred from testifying against Zais without his consent. The State appealed the pretrial order, and the court of appeals reversed and remanded. We granted review on the issue of whether the crime exception to the marital privilege applies to the charged offense of disorderly conduct. Because the conduct underlying Zais's charged offense of disorderly conduct was directed at his wife, we conclude that the crime exception to the marital privilege applies. We therefore affirm the court of appeals.

The material facts are undisputed. The charges against Zais arose out of an incident at the Zaises' home on November 15, 2009. On the previous evening, police responded to a call from Zais's wife after Zais had pushed their daughter. Based on their investigation, the police told Zais's wife that Zais's conduct did not support a criminal charge. Following this incident, Zais left the house for the night, and his wife removed the garage door opener from Zais's truck so he could not reenter the house. According to his wife, Zais called the next afternoon and threatened to break into the house or “do whatever he had to to get in.”

Around 6:30 p.m. on November 15, Zais's wife reported to the police that Zais was in their driveway in his pickup truck and was trying to break down the garage door. She stated that Zais had been drinking. Upon arrival, one officer saw a truck in the driveway and Zais standing by the garage door. Zais stated that his wife would not let him in the house, so he “knocked out some panels in the garage door” with a hook. Zais admitted that he had been drinking that afternoon. The officer administered field sobriety tests, which Zais failed. A preliminary breath test indicated that Zais had an alcohol concentration of .31, and a blood test later revealed Zais had an alcohol concentration of .23.

The State charged Zais with second-and third-degree DWI, Minn.Stat. §§ 169A.20, subds. 1(1) and 1(5) (2010), 169A.25 (2010), 169A.26 (2010); obstruction of legal process or arrest, Minn.Stat. § 609.50, subd. 1(2) (2010); careless driving, Minn.Stat. § 169.13, subd. 2 (2010); and disorderly conduct, Minn.Stat. § 609.72, subd. 1(3) (2010). Before trial, the State notified Zais that his wife was a proposed witness in the proceeding, and Zais moved to exclude her testimony based on the marital privilege in Minn.Stat. § 595.02, subd. 1(a). Following argument of the parties, the district court ruled that disorderly conduct “does not create a personal injury sufficient to destroy the spousal privilege,” and therefore Zais's wife was prohibited from testifying against Zais without his consent. The State appealed.

In a published opinion, the court of appeals reversed and remanded, concluding that the State had established that the exclusion of the testimony of Zais's wife had a critical impact on its ability to prosecute Zais, and that the crime exception to the marital privilege in section 595.02, subdivision 1(a), applies to a prosecution for disorderly conduct if the underlying conduct “was directed at and adversely affected or endangered” the other spouse. State v. Zais, 790 N.W.2d 853, 857–64 (Minn.App.2010). Subsequently, we granted review on the issue of whether the crime exception to the marital privilege applies to the charged offense of disorderly conduct.

I.

The State may appeal pretrial orders of the district court when the State can show that “the district court's alleged error, unless reversed, will have a critical impact on the outcome of the trial.” Minn. R.Crim. P. 28.04, subd. 2. The State has the burden of showing “clearly and unequivocally (1) that the district court's ruling was erroneous and (2) that the ruling will have a ‘critical impact’ on the State's ability to prosecute the case.” State v. Underdahl, 767 N.W.2d 677, 683 (Minn.2009) (citing State v. McLeod, 705 N.W.2d 776, 784 (Minn.2005)).

When a district court's order excludes evidence in a criminal prosecution, the State need not show that the exclusion destroys its case; rather, the State need only demonstrate that “excluding the evidence ‘significantly reduces the likelihood of a successful prosecution.’ ” McLeod, 705 N.W.2d at 784 (quoting State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn.1987)). Moreover, the exclusion of evidence need not affect all charges against the defendant. It is enough if the exclusion affects the State's ability to prosecute a specific charge. See Underdahl, 767 N.W.2d at 684 (noting that “an order that dismisses DWI charges, even when other charges remain, will have a critical impact on the prosecution's case”); State v. Hicks, 301 Minn. 350, 352–53, 222 N.W.2d 345, 347 (1974) (concluding that an order preventing the chance of a successful prosecution on one charge was sufficient to allow an appeal even though the other charges were not affected). Finally, we consider the State's evidence as a whole when determining if the exclusion of evidence will reduce the likelihood of a successful prosecution, and generally, “unique” evidence is “more likely to meet the critical impact test.” In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn.1999).

We conclude that excluding the testimony of Zais's wife would significantly reduce the State's ability to prosecute Zais for disorderly conduct. The elements of disorderly conduct include that a person engaged in certain conduct “knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others.” Minn.Stat. § 609.72, subd. 1 (2010). Zais's wife was the only eyewitness to Zais's conduct, and her testimony bears directly on whether the State can establish the elements of disorderly conduct. Without the testimony of Zais's wife, it will be much more difficult for the State to prove the element of disorderly conduct that Zais either knew or had reason to know that his conduct of breaking the panels of the garage door to enter the home would alarm, anger, or disturb another. See id. Consequently, we conclude that the critical impact test is met.

II.

Zais argues that the crime exception to the marital privilege does not apply to the charged offense of disorderly conduct, and as a result, his wife may not testify against him. According to Zais, the crime exception does not apply because disorderly conduct is not a “crime committed by one [spouse] against the other.”

We review evidentiary rulings by a district court regarding the availability of a privilege established by statutory or common law for an abuse of discretion. State v. Gianakos, 644 N.W.2d 409, 415 (Minn.2002). But the initial determination of whether a particular testimonial privilege or exception exists as a matter of law is a question that we review de novo. Id. Statutory construction is also a question of law that we review de novo. Zurich Am. Ins. Co. v. Bjelland, 710 N.W.2d 64, 68 (Minn.2006) (citing Am. Nat'l Gen. Ins. Co. v. Solum, 641 N.W.2d 891, 895 (Minn.2002)).

A.

To answer the question presented, we first examine the scope of the marital privilege, and then determine the applicability of the crime exception to the facts of this case. The marital privilege has its roots in common law, and it has been part of the statutes of Minnesota since at least 1851. See Rev. Stat. Terr. Minn. ch. 95, § 53 (1851); Gianakos, 644 N.W.2d at 415.

The marital privilege statute provides:

A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage.¹

Minn.Stat. § 595.02, subd. 1(a) (footnote added). The statute also contains several exceptions to the marital privilege, including the crime exception. This exception provides that the marital privilege “does not apply to ... a criminal action or proceeding for a crime committed by one against the other.” Id.

In Huot v. Wise, we held that the language of the marital privilege statute, and not the scope of the common law marital...