Chase v. State

PAUL E. ALPERT, Judge (retired), Specially Assigned. A jury sitting in the Circuit Court for Carroll County 1 convicted appellant, Timothy Bryan Chase, of first degree rape, first degree sexual offense, kidnaping, robbery, and related offenses. The court then sentenced appellant to life ¹⁴⁴ imprisonment, and concurrent terms of 35 years, 25 years, 25 years, 25 years, and seven years. ISSUES Appellant raises five issues, which we reorder and rephrase: I. May the State use evidence otherwise protected by the marital communication privilege, codified in Md. Code § 9-105 (1995 Repl.Vol.) of the Courts and Judicial Proceedings Article, in a determination of whether it has probable cause for an arrest or a search?

II

Did the circuit court err when it ruled that the police had consent to enter appellant’s home when they arrested him?

III

Did the circuit court err when it allowed the victim to make an in-court identification of appellant?

IV

Did the circuit court err when it allowed DNA evidence obtained through the PCR technique to be use to identify appellant? V. Were there exigent circumstances which justified the entry of appellant’s home by the police during his arrest? FACTS On March 20, 1996, a man fitting appellant’s physical description abducted two sisters of Indian descent-one age fifteen, and the other age seven-and took them to a vacant wooded area in Howard County. Once there, he forced the younger girl to remove her shirt and lie on the ground, and the older one to take off all of her clothes.

He proceeded to rape the older girl, and then took from her two gold rings, several earrings, and some loose pocket change. The assailant subsequently released both girls, who immediately reported the incident to the authorities. A few days later, a woman called the Howard County Police Department to report a conversation she had had with her ¹⁴⁵ cousin, in which the cousin said that her husband had come home one night with jewelry he claimed to have stolen from two young girls. The police immediately contacted the cousin, Vanessa Chase, wife of appellant.

Mrs. Chase told the police that several nights earlier, appellant had come home with mud on his jacket and jewelry he said he had stolen from two girls of Indian descent. She also identified a composite drawing of the assailant as her husband, and gave the police one of the earrings appellant had brought home. Shortly thereafter, the earring was brought to one of the victims, who positively identified it. The police subsequently decided to make a warrantless arrest of appellant at his home because they feared that he would learn of their investigation and destroy evidence.

Accordingly, shortly after the victim’s positive identification of the earring, the police went to appellant’s home and arrested him. The police then obtained and executed a search warrant for appellant’s home. DISCUSSION I. Use of Evidence Protected by Marital Privilege The Howard County Police decided that they had probable cause to arrest appellant based on the following information: Mrs. Chase’s statement that appellant had come home several nights earlier with mud on his jacket and an assortment of jewelry; Mrs. Chase’s statement that appellant had told her that he stole the jewelry from two girls of Indian descent; Mrs. Chase’s identification of the composite drawing of the assailant as appellant; and the positive identification, by one of the victims, of an earring given to the police by Mrs. Chase. Prior to trial, appellant moved to suppress the earring obtained by the police from Mrs. Chase on the ground that it was part of a confidential marital communication protected by Md.Code, § 9-105 (1995 Repl.Vol.) of the Courts and Judicial Proceedings Article.

The circuit court rejected this argument on the ground that the transmission of the earring from ¹⁴⁶ appellant to Mrs. Chase did not constitute a confidential communication within the meaning of § 9-105. 2 In this appeal, appellant changes his argument somewhat. Appellant points out that the police relied not just on the earring, but also on the statement by appellant to Mrs. Chase that he had taken the jewelry from two young girls. Appellant argues that that statement was privileged under § 9-105, and that the police were therefore not entitled to rely on it in their probable cause assessment. According to appellant, in the absence of that statement, the police did not have probable cause to either arrest him or search his house.

Thus, appellant argues that all of the evidence obtained during his arrest and the subsequent search of his house should have been suppressed. We do not read § 9-105 to prohibit the use of privileged marital communications in a probable cause determination. Accordingly, we reject appellant’s argument. Section 9-105 reads as follows: § 9-105.

Testimony by spouses — Confidential communications occurring during marriage. One spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage. It is read in conjunction with § 9-106, which provides: § 9-106. Same — Spouse of person charged with a crime.

The spouse of a person on trial for a crime may not be compelled to testify as an adverse witness unless the charge involves: (1) The abuse of a child under 18; or (2) Assault and battery in which the spouse is a victim if: (i) The person on trial was charged with assault and battery of the spouse within 1 year of the current charge; ¹⁴⁷ (ii) The spouse was sworn to testify at the previous trial; and (iii) The spouse refused to testify on the basis of the provisions of this section. An interpretation of these provisions, like an interpretation of any statute, requires that we effectuate the intent of the legislature. State v. Ghajari, 346 Md. 101, 115 , 695 A.2d 143 (1997). The starting point for such an analysis, as the State correctly points out, “is the language of the statute, read in its entirety and in the context of the statutory scheme.” In re Roger S., 338 Md. 385, 390 , 658 A.2d 696 (1995).

Applying these principles to the case at bar, it is clear that §§ 9-105 and 9-106 apply only to witnesses in judicial proceedings, and not to police investigations of criminal activity. This interpretation is supported by the fact that these two provisions are located in Title 9, which governs witnesses in judicial proceedings. Our interpretation of §§ 9-105 and 9-106 is also strongly supported by the ruling of the Court of Appeals in State v. Mazzone, 336 Md. 379 , 648 A.2d 978 (1994). There, one of the primary issues was whether § 9-105 prohibits the State from eavesdropping and intercepting confidential communications between spouses.

The Court ruled that § 9-105 only “concerns the competency of spouses to testify as to marital communications; it does not prohibit or even mention eavesdropping.” Id. at 389, 648 A.2d 978 . The Court also noted that any attempt to broaden the reach of § 9-105 beyond the context of a judicial proceeding must be effectuated by the legislature, and not the courts. Id. Our interpretation of § 9-105 is also supported by non-Maryland cases addressing the issue presented in this case.

Those jurisdictions with marital privileges that clearly apply only to judicial proceedings have held that police may rely on otherwise privileged communications in probable cause determinations. For example, in State v. Jaschik, 85 Ohio App.3d 589 , 620 N.E.2d 883 (11 Dist.), jurisdictional motion overruled, 67 Ohio St.3d 1450 , 619 N.E.2d 419 (1993), the applica ¹⁴⁸ ble statute provided that “[h]usband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence of a third person competent to be a witness * * *.” The court held that that statute was not violated by the use of otherwise privileged communications to develop the probable cause necessary for a search warrant. 620 N.E.2d at 890 . See also United States v. Harper, 450 F.2d 1032, 1045-46 (5th Cir.1971). Further, even in jurisdictions where the language of the statutory spousal privilege is broad enough to encompass nonjudicial proceedings, courts have uniformly rejected an application of that privilege to probable cause determinations.

For example, in State v. Farber, 314 N.W.2d 365 (Iowa 1982), the applicable statute applied the marital privilege, somewhat ambiguously, to a “case”; it read, in relevant part: “Neither the husband nor the wife shall in any case be a witness against the other.... ” The court noted that the statute had been applied in grand jury proceedings, but then distinguished grand jury proceedings from search warrant proceedings: The issue in a grand jury inquiry is much different than in a search warrant proceeding. It concerns the sufficiency of the evidence to indict rather than sufficiency of evidence to conduct a search. An indictment is a prelude to a trial, whereas a search is investigatory. In addition, the potential compulsion of a subpoena is present in the grand jury setting but is unlikely to be involved in issuance of a search warrant.

Id. at 367 . The court then refused to extend the statutory privilege to a probable cause determination, holding that “the proceeding on a search warrant application is not a ‘case’ within the meaning of [the applicable statute].” Id. Similarly, in People v. Kemp, 59 A.D.2d 414 , 399 N.Y.S.2d 879 (1977), the applicable statute provided as follows: (b) Confidential communication privileged. A husband or wife shall not be required, or, without consent of the other if ¹⁴⁹ living, allowed, to disclose a confidential communication made by one to the other during marriage.

The court held that this privilege did not prevent the police from relying on otherwise privileged communications in making a probable cause determination.