People v. Lucero

METZGER, Judge.

The defendant, Emilio Lucero, appeals his conviction of attempted robbery of the elderly, and conspiracy to commit robbery of the elderly. His primary contention is that the trial court erred by admitting testimony which should have been excluded on the basis of the defendant’s assertion of marital privilege. We reverse and remand for a new trial.

The defendant asserts that the trial court erred by admitting into evidence the testimony of his common-law wife, despite his assertion of marital privilege pursuant to § 13 — 90—107(l)(a), C.R.S. (1984 Cum.Supp.). We agree.

Section 13-90-107(l)(a) provides that: “[A] husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent....” This section requires the existence of a valid marriage before its privilege can be invoked. See People v. Maes, 43 Colo.App. 365, 609 P.2d 1105 (1979).

A common-law marriage occurs when the parties: 1) present a consent to be husband and wife, and 2) a mutual and open assumption of the marital relationship. H. Clark, Law of Domestic Relations § 2.4 (1968). If the existence of the contract or agreement is denied or cannot be shown, then that fact may be proven by, or presumed from, the evidence of cohabitation as husband and wife and general repute. Graham v. Graham, 130 Colo. 225, 274 P.2d 605 (1954).

Here, the witness testified that she and’ defendant had lived together for approximately five years between 1976 and 1981, and that one child, Emilio, Jr., had been born of that relationship. She stated that she considered herself married to defendant, and that, in her opinion, he agreed that a marriage existed. She also testified that they held themselves out to friends as being married to one another. The record also shows that shortly after his arrest, defendant had told police officers that he had “loaned his common-law wife’s car” to a co-defendant on the day of the robbery.

Without making any credibility determination, the trial court found that there was no proof of a marital relationship between the parties. Although the record is unclear as to the period of time when the court found that no marriage existed, we conclude that the uncontradieted evidence establishes, as a matter of law, the existence of a common-law marriage which had not been dissolved. See In re Marriage of Lester, 647 P.2d 688 (Colo.App.1982).

The witness’ testimony addressed both elements of a common-law marriage, showing both the parties’ mutual consent to be married and their open assumption of a marital relationship. Since there was no dispute as to the existence of the common-law marriage, the lack of testimony concerning repute is irrelevant. Thus, the court's refusal to permit invocation of the marital privilege was reversible error.

Relying on Trammel v. U.S., 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), the People argue that even if a valid common-law marriage had been established, the privilege should be construed narrowly and the trial court’s ruling should be upheld. We decline to do so.

In Trammel, supra, the court held that in federal criminal prosecutions, the witness-spouse alone may invoke the marital privilege, thus modifying the rule established in Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958) that the testimony of one spouse against the other is barred unless both consent. However, § 13-90-107(l)(a), C.R.S. (1984 Cum.Supp.), “perpetuates the common-law doctrine of witness disqualification in the case of non-consensual spousal testimony regardless of its content.” People v. Corbett, 656 P.2d 687 (Colo.1983) (Quinn, J., concurring). See also Trammel v. U.S., supra (fn. 8).

Thus, we conclude that § 13-90-107(l)(a), C.R.S. (1984 Cum.Supp.), provides an absolute privilege and that the trial court erred in allowing defendant’s wife to testify over his objection.

Defendant’s other contentions of error are without merit.

The judgment is reversed and the cause is remanded for a new trial.

TURSI, J., concurs. STERNBERG, J., dissents.