Wilson v. State, 436, Sept. Term, 2018
| Decision Date | 30 July 2019 |
| Docket Number | No. 436, Sept. Term, 2018,436, Sept. Term, 2018 |
| Citation | 213 A.3d 655,241 Md.App. 683 |
| Parties | Darrayl John WILSON v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
241 Md.App. 683
213 A.3d 655
Darrayl John WILSON
v.
STATE of Maryland
No. 436, Sept. Term, 2018
Court of Special Appeals of Maryland.
July 30, 2019
Argued by: Joseph B. Tetrault (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.
Argued by: Brenda Gruss (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.
Panel: Berger, Friedman, Beachley, JJ.
Beachley, J.
On June 30, 2017, the State charged appellant Darrayl Wilson, by way of indictment, with two counts of obstruction of justice and two counts of witness tampering. In the indictment, the State alleged that appellant "did by corrupt means" try to impede, influence, and obstruct Kearra Bannister from testifying against him by seeking to marry her. On January 18, 2018, a jury sitting in the Circuit Court for Charles County convicted appellant of one count of obstruction of justice and one count of witness tampering. The court sentenced appellant to twenty years' incarceration, all but three-and-a-half years suspended, for witness tampering, and a concurrent three-and-a-half-year sentence for obstruction of justice. Appellant timely appealed and presents the following two issues for our review:
1. Was the evidence sufficient to convict appellant of "corrupt means" witness tampering and "corrupt means" obstruction of justice?
2. Does the sentence for witness tampering merge into the sentence for obstruction of justice?
We conclude, as a matter of law, that appellant's actions do not constitute "corrupt means" as contemplated by the crimes of witness tampering and obstruction of justice. Accordingly,
we vacate appellant's convictions, and need not decide the merger issue.
FACTUAL AND PROCEDURAL BACKGROUND
In August of 2011, Crystal Anderson's mother reported her missing. Unfortunately,
in January 2012, Ms. Anderson's body was discovered in Nanjemoy, Maryland, near Purse State Park. The police investigation into Ms. Anderson's death continued for several years.
On August 20, 2014, Charles County patrol officers responded to a "domestic assist" call in Nanjemoy. When the officers arrived, they made contact with Ms. Bannister, who indicated that she had information concerning Crystal Anderson's death. Detective Brian1 Buchanan interviewed Ms. Bannister that day and recorded the interview. Ms. Bannister told Detective Buchanan that appellant and another man, Raymond Posey, III, shot and killed Ms. Anderson.2 Ms. Bannister explained that, at the time of Ms. Anderson's murder, she was dating appellant, and that appellant told her about the murder. Ms. Bannister also told Detective Buchanan that she observed appellant and Mr. Posey selling and giving away Ms. Anderson's possessions following her disappearance.
In 2015, the State indicted both appellant and Mr. Posey for crimes related to Ms. Anderson's death.3 Following his indictment for Ms. Anderson's murder, appellant remained incarcerated in the Charles County Detention Center. From December 2016 through February 2017, appellant engaged in numerous telephone conversations with various individuals
discussing his intention to marry Ms. Bannister before the State could compel her to testify against him and Mr. Posey in their respective murder trials. These efforts culminated in appellant "marrying"4 Ms. Bannister over the telephone on February 9, 2017, three days after the State's murder trial against Mr. Posey had begun, but before Ms. Bannister was called to testify as a State's witness in that trial.
On February 13, 2017, Ms. Bannister took the witness stand in the State's prosecution of Mr. Posey. During the State's direct examination, the prosecutor asked Ms. Bannister questions about appellant, and Ms. Bannister responded by stating that she wished to invoke her newly-acquired spousal privilege. Presumably, Ms. Bannister sought to invoke Md. Code (1973, 2013 Repl. Vol.), § 9-106(a) of the Courts and Judicial Proceedings Article ("CJP"), which generally provides that the spouse of a person on trial for a crime may not be compelled to testify as an adverse witness.5 The trial judge responded that Ms. Bannister held no such privilege and required her to answer the prosecutor's questions.
Following Mr. Posey's trial, the State filed a Motion to Preclude Assertion of Spousal Privilege in appellant's own murder
case. In an order dated July 10, 2017, the circuit court granted the State's motion, ruling that appellant's marriage to Ms. Bannister was invalid. Appellant appealed that decision to our Court, and in an unreported opinion, Wilson v. State , No. 1122, Sept. Term, 2017 (filed June 18, 2018), a panel of this Court dismissed the appeal, holding that appellant not only lacked standing, but that he had improperly appealed from a non-final judgment.
In June 2017, the State issued a separate indictment against appellant, charging him with obstruction of justice and witness tampering in both Mr. Posey's murder trial and his own pending murder prosecution.6 Appellant's trial on these charges began on January 16, 2018. Two days later, the jury acquitted appellant of obstruction of justice and witness tampering in the State's case against Mr. Posey, but convicted appellant of obstruction of justice and witness tampering in his own murder case. This appeal concerns only the propriety of appellant's convictions for obstruction of justice and witness tampering.
DISCUSSION
In its brief, the State succinctly summarizes the issue for our review: "whether, viewed in the light most favorable to the State, there is any evidence from which a reasonable jury [could] conclude that Wilson's course of conduct culminating in the telephonic marriage reflected the corrupt intent necessary for conviction under the obstruction of justice and witness-tampering statutes." (Footnote omitted). The "course of conduct" the State refers to is appellant's intent and actions to marry Ms. Bannister for the sole purpose of enabling her to invoke her spousal privilege and not testify against him.
We shall follow the out-of-state courts that have declined to create a judicial exception to the spousal privilege and hold that a spouse may invoke the privilege even in the context of a sham marriage. Accordingly, we conclude that, even assuming appellant entered into a sham marriage for the purpose of allowing Ms. Bannister to invoke her spousal privilege, his actions and intentions do not satisfy the "corrupt means" element of "witness tampering" or "obstruction of justice."7
The Spousal Privilege
"The history of the privilege not to testify against one's wife or husband is involved ... in a tantalizing obscurity." 8 John Henry Wigmore, Wigmore on Evidence § 2227 at 211 (McNaughton Rev. 1961). Although it is unknown when the privilege came to be, it "may be said to have been understood to exist in some shape before the end of the 1500s and to have been firmly established by the second half of the 1600s." Id. at 213. The Court of Appeals acknowledged the unclear origin of the spousal privilege in Brown v. State , a case concerning the related "confidential communications privilege" now codified at CJP § 9-105.8
359 Md. 180, 189-90, 753 A.2d 84 (2000). There, the Court noted that, dating back to English common law, "[t]he earliest root seems to be the privilege that a husband had to preclude adverse testimony by his wife." Id. 190, 753 A.2d 84 (citing Wigmore, supra , § 2227 at 211). Like its date of origin, the actual policy reasons underlying the privilege similarly remain unknown. In his treatise on evidence, Professor Wigmore posited that
Possibly the true explanation is, after all, the simplest one, namely, that a natural and strong repugnance was felt (especially in those days of closer family unity and more rigid paternal authority) to condemning a man by admitting to the witness stand against him those who lived under his roof, shared the secrets of his domestic life, depended on him for sustenance and were almost numbered among his chattels.
Wigmore, supra , § 2227 at 212.
Whatever its source and rationale, the spousal privilege was first codified in Maryland in 1864 when the General Assembly
rewrote the first five sections of Evidence Code, Article 37. Brown , 359 Md. at 195, 753 A.2d 84. In adopting § 3 to Article 37 in 1864, the legislature enacted the following language:
No person who, in any criminal proceeding, is charged with the commission of any indictable offence, or any offence punishable on summary conviction, shall be competent or compellable to give evidence for or against...
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State v. Wilson
...married Bannister with the corrupt intent of trying to make it possible for her to invoke the spousal testimonial privilege at trial in Wilson I. The State also argues that, because of an "anti-merger" provision in CR § 9-305, a conviction for witness tampering does not merge for sentencing......
-
State v. Wilson
...married Bannisterwith the corrupt intent of trying to make it possible for her to invoke the spousal testimonial privilege at trial in Wilson I. The State also argues that, because of an "anti-merger" provision in CR § 9-305, a conviction for witness tampering does not merge for sentencing ......