Coleman v. State

Moore, J., delivered the opinion of the Court. Convicted of rape, perverted practice and larceny, at a jury trial in the Criminal Court of Baltimore (Arabian, J., presiding), appellant, Eugene Michael Coleman, was sentenced to twenty years imprisonment for rape and ten years and eighteen months, respectively, (to be served concurrently with the rape sentence) for the perverted practice and larceny convictions. On appeal, he takes issue with certain of the trial court’s rulings on the admissibility of testimony. Finding no error, we affirm. ²¹⁰ I Rose Weaver, the prosecutrix, met the appellant in a local Baltimore bar at approximately 10:30 on the evening of September 24, 1975.

Agreeing to accompany the appellant for a pizza, the two ended up in Coleman’s apartment. They remained there only a short time before walking down the hall to the apartment of a neighbor, Gloria McCue, because appellant wanted to introduce them. The three then returned to appellant’s apartment. According to Mrs. Weaver’s testimony, her casual visit turned quickly into a nightmare.

She became trapped inside appellant’s apartment by a lock to which only the appellant had the key and appellant began to rip her clothes off, pour beer over her and assault her with his hands, shoes and a coffee table. Despite her cries, protests and physical retaliation against him, the appellant continued to abuse her physically until she finally submitted to sexual intercourse and to performing fellatio. Also, the victim stated at trial, the appellant at one point emptied the contents of her purse, which she testified held approximately $12 in change and a diamond engagement ring, and stated, “Boy, I’m really going to clean up tonight. Look at all the money I got.” After her forced submission, the appellant permitted her to leave and apparently gave her cab fare.

Ms. McCue gave her a dress to wear. Mrs. Weaver admitted originally lying to the police when she first reported the incident. She told them that appellant had kidnapped her off the street. At trial, she explained this by declaring she was too embarrassed to admit that she voluntarily accompanied the appellant to his apartment.

Gloria McCue was present in appellant’s apartment and substantially confirmed the events of the evening, at trial. She testified that she tried to comfort the prosecutrix and offered herself to appellant, but the latter declined, stating that he could have her anytime and that, “He wanted something different.” The State’s medical expert and the investigating police officer both testified at trial that they observed bruises and ²¹¹ abrasions on the victim’s body consistent with a physical assault. Appellant’s sole, witness, Clifton Harris, whom the appellant had met while in jail several weeks prior to trial, testified that he knew Rose Weaver for several years and that she had a bad reputation in the community for chastity. II On direct examination, the State’s Attorney elicited, over objection, the following testimony from appellant’s wife concerning a conversation with him when he telephoned her at work from jail, one or two days after the alleged crimes: “Q Okay, and what was the conversation that you had with your husband at that time?

MR. DWIN: Objection. THE COURT: Overruled. THE WITNESS: Answer?

Q (BY MR. CYMEK): Yes, you can. A He had asked me — I was at work and he had asked me to go up to his apartment and to get the ring that he took from the girl because he was afraid Gloria was going to turn it over to the police because she gave them a statement.” Appellant contends that this telephone conversation constituted a confidential communication between husband and wife and was therefore improperly received at trial in contravention of Cts. & Jud. Proc. § 9-105 (Md. Code, 1974).

Section 9-105 provides: "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.” 1 ²¹² The statutory provision preventing one spouse from disclosing a confidential communication made by the other spouse, is to be distinguished from the right of a spouse not to be compelled to testify as an adverse witness in a criminal proceeding in which the other spouse is the accused (unless the charge involves the abuse of a child under 18). Cts. & Jud. Proc. § 9-106.

At trial, Mrs. Coleman expressly declared her willingness to testify against her husband. For the reasons stated below, we hold that § 9-105 did not bar Mrs. Coleman’s testimony with reference to appellant’s telephone call. The privilege of an accused to prevent his or her spouse from testifying as an adverse witness as to a confidential communication made during marriage is designed to promote and encourage the unrestrained flow of private communications between spouses, free from any fear of disclosure, in order to preserve and protect the integrity of the marital relationship. McCormick, Handbook of the Law of Evidence § 86 (2d ed., 1972); Wolfle v. United States, 291 U. S. 7, 14 (1934).

The public policy evidenced by the privilege outweighs the disadvantages to the administration of justice such a privilege entails. 8 J. Wigmore, Evidence § 2332 (McNaughton, rev. 1961). However, the privilege is not absolute. It applies only to those communications which are in fact confidential and which are induced by the marital relationship. 3 S. Gard, Jones on Evidence § 21:5 (6th ed. 1972); McCormick, supra, § 80; Wolfle v. United States, supra, 291 U. S. at 14 . Thus, the privilege does not apply where a communication is made in the presence of a third person, Metz v. State, 9 Md. App. 15 , 262 A. 2d 331 (1970); or where a communication intended for one spouse by the other is transmitted through a third person, Gutridge v. State, 236 Md. 514 , 204 A. 2d 557 (1964); or where a communication, because of its nature or the circumstances under which it was made, is obviously not intended to be confidential, see, e.g., Wolfle v. United States, supra, 291 U. S. at 14 ; People v. Burton, 286 N.E.2d 792 (Ill. 1972); People v. Dudley, 301 N.Y.S.2d 9 (1969).

In the instant appeal, the threshold question is whether or ²¹³ not the communication was confidential. The issue must, of course, be resolved in the context of the facts and circumstances disclosed by the record. These include: 1) The alleged victim, Rose Weaver, had taken the stand, prior to the wife, and had described the contents of her purse which appellant had thrown on the floor of the living room and had taken. The description of the property included a diamond engagement ring. 2) Appellant’s neighbor, Gloria McCue, to whom appellant referred in his call to the wife from jail, had also testified that the “stuff” in Rose’s pocketbook was “all over the floor” as a result of appellant’s having emptied its contents, and that at appellant’s bidding she took the ring and put it in a cabinet. 3) The alleged victim had given a statement to a police officer who testified later in the trial.

This statement was taken within a few hours of the alleged crime and included a detailed description of the engagement ring which appellant had taken from her. 4) The wife further testified that she went to McCue’s apartment and obtained the ring; and that subsequently a police officer came to her home and she gave it to him. It is patent therefore that the husband’s communication here did not involve the disclosure of a fact or facts not already known to others. The taking of the ring by the appellant was known to Gloria McCue, to the victim and, it appears, to the police before appellant ever communicated by telephone with his wife. Furthermore, because appellant and his wife were not living together, the husband knew that the wife’s only means of access to his apartment to retrieve the ring was through a third party, Gloria McCue, who had hidden the ring at appellant’s bidding.

Under these circumstances, we think it is beyond doubt that the wife was competent to disclose, as she did, the telephone conversation ²¹⁴ with the appellant. There was no confidentiality in appellant’s telephone call. Where the communicating spouse has knowledge that his or her communication will be disclosed to third persons, the communication is no longer privileged. See Wolfle v. United States, supra; Grulkey v. United States, 394 F. 2d 244 (8th Cir. 1968); Metz v. State, supra.

In addition, we are constrained to question whether, at all events, the privilege from disclosure should obtain in circumstances where, as here, (a) the marriage, as a practical matter, had ended and (b) the invocation of the privilege would protect communications relating to acts of a criminal nature to be performed in furtherance of a crime. 2 As for the “marriage,” the testimony of the wife disclosed that she and appellant had lived together without benefit of matrimony for about seven years, that a child, five years of age at the time of trial, had been born of their relationship, that they entered into a marriage ceremony a few months before appellant’s arrest for the sole reason that he was about to enter the Army and could obtain an allotment for the child as a dependent. They never lived together after the ceremony and, at the time of trial, the wife had commenced divorce proceedings. In these circumstances, the statutory policy would scarcely be subserved by the suppression of a confidential communication, even if such were involved. See 8 J. Wigmore, Evidence, supra, at § 2335; McEntire v. McEntire, 140 N. E. 328 (Ohio 1923); McNamara v. McNamara, 154 N. W. 858 (Neb. 1915).

Contra, People v. Fields, 328 N.Y.S.2d 542 (App. Div. 1972). With respect to the nature of the communication, it is at once apparent that appellant was seeking the concealment — through the agency of his wife — of the fruits of crime, i.e., the diamond ring. While the Court of Appeals of Maryland and this Court have not had occasion to rule on the applicability of the privilege under such circumstances ²¹⁵ (see Gutridge v. State, supra, where former Chief Judge Henderson expressly left open the issue of “an exception to the privilege” in this type of situation, 236 Md. at 517 , 204 A. 2d at 559 ), there is persuasive authority against its application. In support of an exception to the privilege insulating marital confidences from disclosure where the communication is. made in furtherance of a crime, Dean McCormick writes: ‘•The acts thus protected are frequently acts done in furtherance of a crime or fraud, and thus under the principle developed for the cognate privilege for attorney-client communications, should not be protected from disclosure even by direct communication. . ..

The attitude of the courts in these cases seems in effect a reaching back toward the old common law principle of preserving family harmony by disqualifying a spouse from testifying for or against the other. A different attitude it is believed would be wiser,