U.S. v. James

• Decision Date: 18 January 2001
• Docket Number: No. 99-390PWG.,99-390PWG.
• Citation: 128 F.Supp.2d 291
• Parties: UNITED STATES of America v. Shaun L. JAMES, Defendant
• Court: U.S. District Court — District of Maryland

Page 291

128 F.Supp.2d 291

UNITED STATES of America v. Shaun L. JAMES, Defendant

No. 99-390PWG.

United States District Court, D. Maryland, Southern Division.

January 18, 2001.

Paul Marone, Special Assistant United States Attorney, for U.S.

Sasha Natapoff, Assistant Federal Public Defender, for Defendant.

MEMORANDUM AND ORDER

GRIMM, United States Magistrate Judge.

The Defendant in this case has given written consent to trial of this case before me. 18 U.S.C. § 3401; Local Rule 301.3. Shaun L. James was charged with assault pursuant to 18 U.S.C. § 113, a Class B misdemeanor, after an altercation with his wife on Aberdeen Proving Ground, Maryland. During trial, the prosecution offered the testimony of police officer Okun as to incriminating statements made by Mr. James' wife to the officer. The Defendant objected at trial to these statements being considered by the Court in determining the innocence or guilt of Mr. James as they assertedly were (1) hearsay; (2) privileged; and (3) in violation of the Confrontation Clause of the Sixth Amendment. After a brief hearing, pursuant to FED. R. EVID. 104(a), the statements were held to be excited utterances, FED. R. EVID. 803(2), and therefore, admissible hearsay. The Court, however, deferred ruling on the privilege and Confrontation Clause objections until counsel had the opportunity to brief the issues. Thus, the decision as to the innocence or guilt of Mr. James was postponed until a ruling could be made on whether or not the statements are admissible.

The matter now before the Court is the Defendant's Motion to Exclude Privileged Spousal Statements (hereinafter "Defendant's Motion"). For the reasons set forth below, the Defendant's Motion is DENIED.

BACKGROUND

Shaun L. James was charged with assault, 18 U.S.C. § 113, a Class B misdemeanor, after an altercation with his wife on December 12, 1998, at Aberdeen Proving Ground, Maryland. A bench trial took place on August 19, 1999. The evidence at trial tended to show that on December 12, 1998, at approximately 9:45pm, the Defendant, his wife and their two children were driving in their car when Mr. and Mrs. James began to argue. (Tr. 41.) Mrs. James instructed Mr. James to pull the car over so she could get out. (Tr. 41.) Mr. James pulled the car over by Patio Pizza on Aberdeen Proving Ground, and Mrs. James got out with the two children. (Tr. 41.) She went over to the pay phone located outside Patio Pizza and dialed 911. (Tr. 42.) When the operator answered, Mrs. James hung up. (Tr. 42.) Shortly thereafter, police officer Okun responded to the 911 hangup call. (Tr. 5.) When the officer arrived he observed the Defendant, and his wife, in an argument. (Tr. 6.) He immediately separated them and asked Mr. James what had happened. (Tr. 7.) Mr. James told the officer that he and his wife had been in an argument and that he had pushed her.¹ (Tr. 7.) The officer testified that the Defendant was very upset and emotional at this time. (Tr. 7.) The officer then spoke with Mrs. James as to the events that occurred that evening. (Tr. 8, 26.)

At trial the Government offered the statements that Mrs. James voluntarily made to officer Okun at the time of the incident.² (Tr. 8, 26-27.) The Defense objected and stated that Mrs. James, who was not present at trial, would assert her spousal testimony privilege and in doing so any statements made by her to officer Okun were inadmissible. (Tr. 8-24.) Additionally, the Defense argued that the statements were hearsay and inadmissible on that ground as well. (Tr. 8.)

From the proffers made by both counsel, the Court found that there was sufficient information for it to rule under FED. R. EVID. 104(a), that if Mrs. James were present in court she would assert her spousal testimony privilege and would not testify against her husband. (Tr. 15-24.) The Court also ruled that the statements made by Mrs. James to officer Okun were excited utterances, FED. R. EVID. 803(2), thus an exception to the hearsay rule. (Tr. 34-36.) It was not decided during trial if these "excited utterances" by Mrs. James would be excluded under the spousal testimony privilege or the Confrontation Clause of the Sixth Amendment. (Tr. 49-51.)

DISCUSSION

A. Spousal Testimony Privilege

The primary argument asserted by the Defendant is that the statements made by Mrs. James to officer Okun are inadmissible because they are covered by the spousal testimony privilege. (Defendant's Motion at 2.) Stated simply, Mr. James argues that the spousal testimony privilege applies not just to in-court-testimony by the witness-spouse, but prevents a third party from repeating an out-of-court statement made by that spouse. (Defendant's Motion at 2 .) While there are two types of spousal privilege, the spousal communication privilege and the spousal testimony privilege, this case involves only the spousal testimony privilege.³

The spousal testimony privilege in federal court is governed by FED. R. EVID. 501, which states that the applicability of a privilege "... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience ..." The spousal testimony privilege is firmly rooted in common law. It was intended to promote family harmony by making the witness-spouse incompetent to testify against his or her spouse. See Trammel v. United States, 445 U.S. 40, 44, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). However, this rule has exceptions and has been and continues to be modified by the courts because of "reason and experience." See Trammel, 445 U.S. at 46, 100 S.Ct. 906; Hawkins v. United States, 358 U.S. 74, 79, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958).

The privilege began as one that absolutely disqualified a man from testifying in his own behalf since, as he had an interest in the outcome of the trial, he was seen as incompetent to testify. See Hawkins, 358 U.S. at 75, 79 S.Ct. 136. Since husband and wife then were regarded as one entity that precluded the wife from testifying for or against her husband because she had the same interest. Id. However, there was an exception to this rule which allowed a wife to testify against her husband "where the husband commits an offense against the person of his wife." Stein v. Bowman 38 U.S. 209, 222, 13 Pet. 209, 10 L.Ed. 129 (1839); see also Wyatt v. United States, 362 U.S. 525, 526, 80 S.Ct. 901, 4 L.Ed.2d 931 (1960).

In 1878, Congress removed the "incompetent" label from a defendant and allowed him or her to testify in defending against a criminal charge. However, no provision was included to allow the wife to testify on her husband's behalf. In 1933, the Supreme Court, in Funk v. U.S., 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933), eliminated total disqualification of the witness-spouse because it presented a "manifest incongruity" to permit a defendant to testify in his own behalf but refuse to allow his spouse to testify. Id. at 381, 54 S.Ct. 212. Funk did, however, keep intact the ability of either spouse to prevent the other from testifying against him or her. Id. at 373, 54 S.Ct. 212. This remained the state of the spousal testimony privilege until the United States Supreme Court revisited the issue in 1980. In Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), the high court held that the spousal testimony privilege belongs to the testifying spouse only and that he or she can testify against the defendant spouse if he or she chooses. Id. at 53, 100 S.Ct. 906. Trammel takes the spousal testimony privilege away from the defendant spouse, who no longer has control over his or her spouse's testimony. Id.

The stated purpose behind the spousal privileges is to keep family harmony and marital cohesion. Id. at 44, 100 S.Ct. 906. The courts do not want to turn husband against wife and break down their marital relationship. However, the courts are cognizant that if the marriage already is damaged and the witness-spouse wants to testify against the defendant-spouse, the trust and confidence in the marital relationship already is gone, and there is nothing of substance left to protect. Id. at 52-53, 445 U.S. 40. The damaged relationship will not be repaired by allowing the defendant-spouse to exclude testimony from the witness-spouse, who wants to testify. Allowing testimony to be excluded when the marital relationship already is damaged would serve no purpose other than circumventing the truth-finding process. Id. That is why the Court in Trammel took the spousal testimony privilege away from the defendant-spouse and rested it solely in the testifying spouse. See id. "This modification — vesting the privilege in the witness-spouse — furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs." Id. at 53, 100 S.Ct. 906.

The Court in Trammel further stated that no privilege "prevents the Government from enlisting one spouse to give information concerning the other or to aid in the other's apprehension. It is only the spouse's testimony in the courtroom that is prohibited." Id. at 53 n. 12, 100 S.Ct. 906. It is this wording that guided decisions by two federal Circuit Courts of Appeal enabling them to permit the use of one spouse's statement against the other spouse when offered through a third person or a document. See United States v. Archer, 733 F.2d 354 (5th Cir.1984); United States v. Chapman, 866 F.2d 1326 (11th Cir.1989). Although neither this Court nor the Fourth Circuit⁴ has spoken on this issue, five other circuits have, and their guidance is instructive.

The Second Circuit addressed this issues in United States v. Mackiewicz, 401 F.2d 219 (1968), cert. denied, 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 258 (1968). In Mackiewicz, the court held that a spouse's voluntary out-of-court statements can be testified to by a third party, where neither spouse consents to the statements being introduced. Id. at 225. The court...