Wilson v. State

Panel: Berger, Friedman, Beachley, JJ. Beachley, J. ⁶⁸⁴ 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, ⁶⁸⁵ 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, ⁶⁵⁷ 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 Brian 1 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 ⁶⁸⁶ 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 ⁶⁵⁸ 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. ⁶⁸⁷ 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." 7 ⁶⁸⁸ 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. 8 ⁶⁵⁹ 359 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 ⁶⁸⁹ 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 himself, nor shall any person be compellable to answer any question tending to criminate himself, nor, in any criminal proceeding, shall any husband be competent or compellable to give evidence for or against his wife, nor shall any wife be competent or compellable to give evidence for or against her husband, except as now allowed by law , nor in any case, civil or criminal, shall any husband be competent or compellable to disclose any communication made to him by his wife during the marriage, nor shall any wife be compellable to disclose any communication made to her by her husband during the marriage. (Emphasis added).

Notably, the original privilege precluded a spouse from testifying either for or against the other spouse-the spouse was neither competent nor compellable. One of the earliest interpretations of the spousal privilege is found in Turpin v. State , 55 Md. 462 (1881). There, John Turpin, who was accused of murder, unsuccessfully sought to call his wife to testify in his defense. Id. at 475 .

Following his conviction, the Court of Appeals was tasked with interpreting the effect of the Act of 1876, ch. 357, which repealed Article 37 § 3 of the 1864 Act and instead provided: 3. "In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes and offences, and in all proceedings in the nature of criminal proceedings, in any Court of this State, &c., &c., the person so charged shall, at his own request, but not otherwise, be deemed a competent witness." Id. at 476 . Mr. Turpin argued that by repealing Article 37 § 3 of the Act of 1864, his wife became a competent witness under § 1 of the Act of 1864. Id. at 476-77 .

That section addressed ⁶⁹⁰ who could be called as a witness and provided that "the parties litigant and all persons in whose behalf any suit, action or other proceeding may be brought or defended, themselves and their wives and husbands shall be competent and compellable to give evidence in the same manner as other witnesses, except as hereinafter excepted." Id. at 476 . The Court of Appeals rejected Mr. Turpin's interpretation of the effect of the ⁶⁶⁰ 1876 amendment, holding that § 1 of Article 37 only applied in civil actions, and that it "would not operate to alter the rule of the common law which made a husband or wife an incompetent witness in a criminal prosecution against the other." Id. at 477-78 . Instead, the Court concluded that the effect of the 1876 amendment to Article 37 § 3 was to allow a criminal defendant to testify in his own defense, not to remove "the incompetency of the wife, which existed at the common law, to testify in the case of a criminal prosecution against her husband." Id. at 478 . In 1888, the General Assembly again amended the law.

This time, the legislature "added back to § 3 of Article 37 the provision that, '[i]n all criminal proceedings the husband or wife of the accused party shall be competent to testify[.]' " Brown , 359 Md. at 196 , 753 A.2d 84 . As a result of the 1888 amendment, the law, as ultimately codified in Maryland Code Article 35, §§ 1 and 4 (1957) was that (1) spouses were generally competent and compellable witnesses; (2) in criminal proceedings, the spouse of the defendant was "competent to testify," but (3) "in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage." The law remained in that state until 1965, when the Legislature added to what was then § 4 of Article 35 the provision that a person could not be compelled to testify as an adverse party or witness in any criminal proceeding involving the person's spouse. Id. at 197 , 753 A.2d 84 . Between 1888 and 1965, the Maryland Code acknowledged a spouse's competency to testify in criminal proceedings, but did ⁶⁹¹ not specifically provide whether a spouse could invoke the privilege to prevent being compelled to testify.

Despite this silence, the Court of Appeals nevertheless construed the Code as recognizing the existence of the spousal privilege. See Raymond v. State ex rel. Younkins , 195 Md. 126 , 128-29, 72 A.2d 711 (1950) (recognizing that where husband abused wife, wife was a competent witness, free to decide whether she would testify against her husband in trial for criminal abuse); see also Richardson v. State , 103 Md. 112 , 117, 63 A. 317 (1906) (stating that wife of criminal defendant was a competent witness who was free to testify against him "although she could not have been compelled to testify"). In 1971, the General Assembly amended Article 35 § 4 by providing that neither a husband nor wife could be compelled to testify as an adverse party in any criminal proceeding involving his or her spouse unless the proceeding involved abuse of a child under the age of sixteen.

The legislature again amended Article 35 § 4 in 1973 to provide that a husband or wife could be compelled to testify against his or her spouse in criminal proceedings involving abuse of a child under the age of eighteen. As part of the recodification of the Maryland Code, in 1973 the General Assembly enacted the Courts and Judicial Proceedings Article. For the first time, the legislature gave the spousal privilege its own section, codified at § 9-106. That section provided "The spouse of a person on trial for a crime may not be compelled to testify as an adverse witness unless the charge involves the abuse of a child under 18." In 1994, in an apparent effort to combat domestic violence, the General Assembly narrowed the privilege by allowing the State to compel a spouse to testify as an adverse witness when the spouse was the victim of assault and battery in certain circumstances.

Despite legislative amendments subsequent to 1994 that created exceptions for ⁶⁶¹ spouses who are assault victims, the general rule that a spouse may not be compelled to testify as an adverse witness has remained in Maryland since 1864. ⁶⁹² Having established that the spousal privilege has existed in Maryland for over 150 years, we next turn to consider whether the privilege applies in a sham marriage, i.e. , where the parties marry with the intent and purpose of invoking the privilege in a criminal proceeding. The Prevailing Rule: Recognizing the Spousal Privilege in Sham Marriages Although Maryland courts have not addressed whether a spouse may successfully invoke the privilege in a sham marriage, our dicta in Hagez v. State , 110 Md. App. 194 , 211 n.7, 676 A.2d 992 (1996), suggests that the privilege may be invoked. There, the State charged Adel Hagez with first-degree murder, and his wife attempted to invoke her spousal privilege not to testify against him. Id. at 197-98, 207-08 , 676 A.2d 992 .

The couple had divorced approximately two years prior to the murder trial, but Mr. Hagez presented evidence that he remarried his wife three days before the trial began. Id. at 207-08 , 676 A.2d 992 . Although evidence of the remarriage contained apparent inconsistencies, the trial court assumed a valid marriage and nevertheless ruled that Ms. Hagez could not invoke the privilege because "the purpose of the marriage was to hinder justice by preventing Ms. Hagez's testimony if asserted." Id. at 209 , 676 A.2d 992 . Because we reversed Mr. Hagez's conviction on other grounds, we did not reach the issue of "whether the statutory testimonial privilege is available to a witness who has married solely to assert the spousal privilege or to obstruct justice." Id. at 211 , 676 A.2d 992 .

We offered some guidance on the topic, however, in a footnote. We observed that the ability to invoke the privilege seemed to only depend upon the existence of a valid marriage, not upon the reasons for the marriage: We note that the spousal privilege, codified in [CJP] § 9-106, does not seem to include any exceptions concerning an improper motive or purpose in marrying. Rather, it appears to pertain to anyone who qualifies as a "spouse," without regard to the motive for the marriage. Thus, one who marries for money, or to enhance one's career, or for estate ⁶⁹³ purposes, seemingly would be entitled to invoke the privilege, so long as the marriage is valid; the statute does not specifically authorize a trial court to go behind the marriage to discern its validity or to pass judgment on the reasons for the marriage.

Id. at 211 n.7, 676 A.2d 992 . This language, though dicta, supports the conclusion that the ability to invoke the spousal privilege should not depend on the underlying reason for the marriage. Instead, it appears that the only relevant factor in deciding whether a party may assert the spousal privilege is whether the marriage is valid. The Hagez footnote further acknowledged that this principle appeared consistent with application of the confidential communications privilege.

We noted that "application of [that] privilege does not depend upon the stability of the marriage, either at the time of the communication or at the time the privilege is asserted." Id. (quoting Coleman v. State , 281 Md. 538 , 544, 380 A.2d 49 (1977) ). Recognizing a potential flaw with the scope of the confidential communications privilege, we noted, "It may be ... that where there is no actual marital relationship to preserve and protect, that public policy dictates not permitting the privilege to become an obstruction to the administration of justice. That argument, quite obviously, should be addressed to the legislature, not the courts." ⁶⁶² Id.

(quoting Coleman , 281 Md. at 545 , 380 A.2d 49 ). This language suggested that the spousal privilege, like the confidential communications privilege, can be invoked, even if the marriage is a sham. 9 Nearly a year after Hagez , the Court of Appeals decided State v. Walker , 345 Md. 293 , 325, 691 A.2d 1341 (1997), a case concerning the "exceptional circumstances" hearsay exception. In Walker , the Court mentioned, without explicitly holding, ⁶⁹⁴ that the prevailing rule throughout the country seemed to be that the spousal privilege applied, even in a sham marriage. There have, to be sure, been cases in which the defendant and the witness have entered into a marriage immediately prior to trial, the inference being that the marriage was a sham, arranged solely to preclude the witness from testifying or having to testify.

Most of those cases seem to have arisen under the common law rule that either made the spouse incompetent as a witness or allowed the defendant to preclude the testimony. See Michael G. Walsh, Existence of Spousal Privilege Where Marriage Was Entered Into For Purpose of Barring Testimony , 13 A.L.R.4th 1305 (1982). Some courts, in that circumstance, have refused to apply the privilege, although the prevailing rule seems to be, even in that circumstance, that the privilege applies . Id. at 1308 .

Id. at 330, 691 A.2d 1341 (emphasis added). Our research vindicates the Walker Court's assessment of the prevailing rule, as many states allow a spouse to invoke the spousal privilege even in the context of a sham marriage. In State v. Peters , 213 Ga.App. 352 , 444 S.E.2d 609 , 610 (1994), Georgia's intermediate appellate court concluded that the spousal privilege "may be invoked regardless of the underlying motives for a valid, existing marriage." There, the State charged Linda Peters with murdering her husband. Id.

Eleven days after the murder, Walter Sargent, who was having an affair with Ms. Peters, finalized his own divorce. Id. Before she married Mr. Sargent, Ms. Peters "told her daughters she probably would have to marry [Mr.] Sargent so he would not testify against her." Id. The State subpoenaed Mr. Sargent to testify before a grand jury, and Mr. Sargent moved to quash the subpoena.

Id. The trial court found the marriage to be valid, and granted the motion to quash. Id. at 611. The State then took an interlocutory appeal because of the importance of Mr. Sargent's testimony to the murder investigation and prosecution.

Id. On appeal, the court reviewed the scope of Georgia's spousal privilege. Id. Specifically, the Peters court recognized that the Georgia spousal privilege statute ⁶⁹⁵ essentially incorporated the common-law rule [that] spouses were neither competent nor compellable to testify.

An exception was created providing that a wife was competent but not compellable to testify against her husband for a criminal offense upon her person. This exception later was expanded to include a criminal offense committed by either spouse upon the other.... Finally, subsection (b) was added in 1987, providing that the privilege shall not apply where the husband or wife is charged with a crime against the person of a minor child. Id. at 611 (internal citations omitted).

The court specifically declined to create an additional exception for sham marriages, noting ⁶⁶³ that Georgia's legislature "has not provided an exception for the circumstances of this case." Id. at 612. In doing so, the Peters court stated that it was following the prevailing rule throughout the country: "Allegations that a marriage was contracted solely for the purpose of barring testimony have been considered by a number of state courts, and they have overwhelmingly declined to create such a judicial exception to the marital privilege." Id. Pennsylvania's intermediate appellate court has also adopted the