State v. Williams , 133 Ariz. 220 ( 1982 )

CAMERON, Justice,

dissenting.

I regret that I must dissent. I do so for two reasons. First, I do not agree that the error in admission of the hearsay evidence is harmless, and, second, I do not believe the marital privilege applies to the facts of this case.

HARMLESS ERROR

I agree with the majority that the trial court committed error in admitting, over defendant’s objection, certain out-of-court statements and hearsay material. I cannot agree, however, with the majority’s conclusion that the admission of the diagram was harmless error. The majority states:

“ * * * The test for determining harmless error is ‘whether there was reasonable probability ... that a verdict might have been different had the error not been committed.’ (citations omitted) To put it differently, would the jury have found the defendant guilty in the absence of this inadmissible hearsay? In this case, we believe that the jury would have found the defendant guilty even if the inadmissible evidence had not been admitted. * * * ”

It is agreed that the error must be harmless “beyond a reasonable doubt.” State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). I do not believe, however, that in this case we can, on appeal, state that the admitted errors were harmless beyond a reasonable doubt. McVay, Chapman, Harrington, supra. I therefore believe the harmless error doctrine has been misapplied.

MARITAL PRIVILEGE

At trial, defendant asserted the marital privilege, and the court, over the State’s objections, allowed the privilege and refused to compel the defendant’s wife to testify.

Our statute reads:

“A person shall not be examined as a witness in the following cases:

“1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, be, without consent of the other, examined as to any communication made by one to the other during the marriage. * * * ” A.R.S. § 13-4062(1). (emphasis added)

The Arizona statute is a codification of two common law marital privileges better known as the anti-marital fact privilege and the confidential communication privilege. The two privileges are to be distinguished in that the former goes to the question of competency, and, if properly invoked, prevents the witness-spouse from testifying on any matter at trial. The confidential communications privilege relates only to communications that are made during the marriage and intended to be confidential. State v. Whitaker, 112 Ariz. 537, 544 P.2d 219 (1975). See also Comment, The Husband-Wife Evidentiary Privilege: Is Marriage Really Necessary?, 1977 Ariz. St.L.J. 411. Since the statements concerning murder were made prior to the marriage, the defendant cannot claim that his communication with Rita Sipler is within the scope of the confidential communications privilege. Williams’ claim of privilege, then, is necessarily one of the anti-marital fact privilege.

Since their inception at early common law, the marriage privilege in general and the anti-marital fact privilege in particular have been much criticized by the courts and scholars. The United States Supreme Court has stated:

“The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications, rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making ‘every man’s house his castle,’ and permits a person to convert his house into ‘a den of thieves.’ 5 Rationale of Judicial Evidence 340 (1827). It ‘secures, to every man, one safe and unquestionable and [ever] ready accomplice for every imaginable crime.’ (Id. at 338).

“The ancient foundations for so sweeping a privilege have long since disappeared.” Trammel v. United States, 445 U.S. 40, 51-52, 100 S.Ct. 906, 913, 63 L.Ed. 186, 195-96 (1980). See also J. Wigmore, Evidence, § 2228 at p. 221 (McNaughton Rev. 1961); McCormick, Evidence, § 66 at 145-46 (2d ed 1972).

Only twenty-four states still retain vestiges of the privilege. See Trammel v. United States, Id. at 48, n. 9, 100 S.Ct. at 911-12, n. 9, 63 L.Ed.2d at 193-94, n. 9. This court has also expressed its disapproval of the privilege in State v. Whitaker, supra, where we characterized the privilege as the “merest anachronism in legal theory and an indefensible obstruction to truth * * *.” Id. at 540, 544 P.2d at 222 (quoting 8 J. Wigmore, Evidence, § 2228, at p. 221 (McNaughton Rev. 1961). Nevertheless, we continue to recognize the legislative mandate. See also, State v. Watkins, 126 Ariz. 293, 614 P.2d 835 (1980). As an example of the problem that can be created by strict adherence to the anti-marital fact privilege, see Vance v. Rice, 524 F.Supp. 1297 (1981), where the District Court for the Southern District of Iowa upheld a jailer’s refusal to allow a defendant and a material witness, pregnant by the defendant, to be married because of the fear that the defendant would then invoke Iowa’s marital immunity statute at a later trial.

I do not believe that the legislature intended the anti-marital fact privilege to be invoked concerning a crime committed by the defendant prior to the marriage. In this position I am not without tacit support from authority in a closely related case. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed.2d 593 (1953).

In Lutwak, supra, the United States Supreme Court disallowed marital privilege where the defendants, who had entered into a “sham” marriage for the purpose of evading federal immigration laws, sought to evoke the privilege and prevent their spouses from testifying against them. The court held that:

“[wjhen the good faith of the marital relation is pertinent and it is made to appear to the trial court, as it was here, that the relationship was entered into with no intention of the parties to live together as husband and wife but only for the purpose of using the marriage ceremony in a scheme to defraud, the ostensible spouses are competent to testify against each other.

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“ * * * We therefore hold that in the circumstances of this case, the common-law rule prohibiting antispousal testimony has no application.” 344 U.S. at 614-15, 73 S.Ct. at 488, 97 L.Ed.2d 602.

In reaching its conclusion, the Lutwak court took judicial notice that the reason usually given for the disqualification of spouses as witnesses against each other is to protect the sanctity of the marital relationship. See J. Wigmore, supra, § 2228; State v. Walker, 112 Ariz. at 540, 544 P.2d at 222. The Lutwak court focused on the purpose of the marriage rather than on its validity. I do not base my opinion, however, on the fact that this could be a sham marriage. I do not know whether one or both parties entered into this marriage for legitimate reasons or not. I do not believe that the court should be required to define the motives behind the marriage.

“Such a determination would necessitate a case by case qualitative and quantitative analysis on such factors as intimacy, voluntary commitment, stability and psychological involvement.” State v. Watkins, 126 Ariz. at 298, 614 P.2d at 840 (1980).

I do not believe that the legislature intended the statute to extend to illegal matters which occurred prior to the marriage. As to those matters, I believe the spouse is competent to testify. I would hold that the statute does not apply as to the crimes committed before marriage and for which the defendant is being tried, and that a spouse may be called for the limited purpose of testimony concerning that crime.