No. 87-505
I N T E SUPREME COURT O THE STATE OF M N A A
H F O T N
1988
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
KENNETH DALE NETTLETON,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lewis & C l a r k ,
The H o n o r a b l e Thomas H o n z e l , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
J . Mayo A s h l e y , H e l e n a , Montana
N i c h o l a s J a c q u e s , H e l e n a , Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
P a u l D. Johnson, A s s t . A t t y . G e n e r a l , Helena
Mike McGrath, County A t t o r n e y , H e l e n a , Montana
C a r o l y n Clemens, Deputy County A t t o r n e y , H e l e n a
S u b m i t t e d on B r i e f s : J u n e 2 2 , 1988
Decided: ~ u g u s t2 2 , 1988
Clerk
Mr. Justice R.C. McDonough delivered the Opinion of the
Court.
Kenneth Dale Nettleton appeals from the judgment of the
District Court of the First Judicial District, Lewis and
Clark County, entered upon a jury verdict finding him guilty
of deliberate homicide, a felony. We affirm.
Nettleton presents one issue for our review:
"Should two of the witnesses, both former spouses, have
been allowed to testify regarding communications made to them
during the marriage?"
On November 7, 1986, Nettleton was charged with the 1977
deliberate homicide of Gayla Sue Brisson. On March 18, 1987,
Nettleton filed a motion to exclude the testimony of Candace
Semenze and Magdelina DuMontier relating to statements made
by Nettleton to the two women while married to them.
According to Nettleton, Semenze was his common-law wife from
June of 1975 until February of 1982, and he was married to
DuMontier from July of 1983 until June of 1986. He asserted
that his communications with the two women during marriage
were privileged under 5 26-1-802, MCA.
After a hearing on the motion, the District Court
determined that sufficient evidence had been introduced to
show a marriage between Nettleton and DuMontier, and between
Nettleton and Semenze. However, the court denied the motion
to exclude the testimony of the two women based on exceptions
to spousal privilege. Both women then testified at trial,
and are characterized by both parties as important witnesses.
Semenze testified at length about Nettleton's words and
actions in her presence on the day of Brisson's death and
thereafter. Among other things, she testified to seeing a
scarf in Nettleton's car on the day after Brisson's death
that was very similar to the one she had seen Brisson wearing
shortly before she was killed. She also testified about a
chain of events following Brisson's death, when Nettleton
told her he had killed Brisson, showed her the body, and
forced her to assist him in a "cover-up" of the crime.
Brisson's body was located under a small house trailer on the
outskirts of Helena. The cover-up consisted of Nettleton and
Semenze inspecting this trailer with an acquaintance of
Nettleton's, Chris Nunn, under the pretense of being
interested in purchasing it. During the inspection,
Nettleton "discovered" Brisson's body.
Semenze's testimony about these events is interspersed
with repeated threats and abusive remarks by Nettleton:
He was really scaring me; and he said if you tell
that he would -- if -- he said if you tell anybody
about this that he would kill me
...
and we went back to -- back to that little trailer;
and I was scared; and he pulled up to it; and he
was scaring me; and he said, "You get out of the
1 f--- ing' car and pretend like you are interested
in the trailer..."
Semenze further testified that although she and
Nettleton were separated at the time of the killing, he
forced her--again under threat of death--to move back in with
him. While living with Nettleton, she was continually
subjected to threats concerning what would happen to her or
her baby should she ever disclose Nettleton's connection to
Brisson's death. According to Semenze's testimony, these
threats were sometimes accompanied by physical violence:
He was always picking on me and threatening me,
shoving me around and telling me that he would take
[the baby] ; and he said, "If you run, you can run
to Texas; and I will find you;" and I just couldn't
sleep. I was scared that he would do something. I
was scared he was going to do something to [the
baby]. I just didn't want to live with him but he
made me live with him.
Semenze also testified about an occasion shortly after
Brisson's death when she and Nettleton were riding in a
pickup driven by Nettleton's brother. Nettleton had his
brother stop on a bridge so he could throw a knife into the
creek "to wash the finger prints off."
DuMontier likewise testified as to threats directed at
her by Nettleton, as well as a "warning" from Nettleton's
brother. DuMontier, like Brisson, had red hair. She
testified that after having an argument with Nettleton at a
tavern, she was warned by Nettleton's brother not to anger
him because "Ken had already killed a red-headed girl."
DuMontier also testified that when she later asked Nettleton
about his brother's warning, he admitted to her that he had
killed Brisson. She further testified that after she and
Nettleton were divorced, he came to her house on at least one
occasion and, according to DuMontier, "he got mad and started
slapping me and just said that--called me Ga[ylla and said
that I should should be dead already because he had killed me
years ago."
On March 27, 1987, the jury returned its verdict finding
Nettleton guilty of deliberate homicide. On August 25, 1987,
the District Court sentenced Nettleton to 60 years in the
Montana State Prison and denied his motion for a new trial.
This appeal followed.
Before proceeding to the main issue framed by Nettleton,
we will dispose of a preliminary question raised by the
State. The State's argument to the District Court and its
brief on appeal emphasize that Nettleton and Semenze were
never married. According to the State, the alleged
common-law marriage between the two did not have the four
elements necessary under Montana common law: capability,
agreement, cohabitation and reputation (citing Matter of
Estate of Murnion (Mont. 1984), 686 P.2d 893, 41 St.Rep.
1627, and other cases). Whether the relationship between
Nettleton and Semenze fit the legal definition of common-law
marriage was a question of fact for the District Court to
decide. That decision must be upheld if there is
substantial, credible evidence in the record to support it.
Griffel v. Cove Ditch Co. (Mont. 1984), 675 P.2d 90, 41
St.Rep. 1.
The record shows that while Semenze denied the existence
of the marriage in her testimony, she and Nettleton lived
together, had a child, opened and used a joint checking
account, and filed joint income tax returns for two
consecutive years. The record also shows the filing of a
joint petition for divorce signed by Semenze and Nettleton.
This evidence provides a sufficient basis for the District
Court's decision that Nettleton and Semenze considered
themselves married, and we will conduct our review under the
assumption that the marriage existed.
The issue on review is thus the exceptions to spousal
privilege adopted by the District Court and contested on
appeal by Nettleton. Section 26-1-802, MCA, is Montana's
spousal privilege statute:
Spousal Privilege. A husband cannot be examined
for or against his wife without her consent or a
wife for or against her husband without his
consent; nor can either, during the marriage or
afterward, be, without the consent of the other,
examined as to any communications made by one to
the other during the marriage; but this exception
does not apply to a civil action or proceeding by
one against the other or to a criminal action or
proceeding for a crime committed by one against the
other.
Nettleton argues that the District Court misapplied S
26-1-802, MCA, and the exceptions found by the court to allow
testimony by Semenze and DuMontier are contrary to existing
case law. However, if the District Court's ruling was
correct, we will affirm it irrespective of the reasoning used
to support it. Norwest Bank of Billings v. Murnion (Mont.
1984), 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136.
At the outset, we note the statute's wording, which
protects communications made by one to the other during the
marriage." Given this wording, some of the testimony
disputed by Nettleton does not come within the privilege
afforded by 5 26-1-802, MCA. Testimony by DuMontier
concerning Nettleton's actions and statements after the two
were divorced is not at issue here, because those statements
were not made during marriage. Nor is testimony by Semenze
or DuMontier involving statements or actions by persons other
than Nettleton at issue, because those were not
communications by one spouse to the other.
The doctrine of spousal privilege has its roots in
English common law. The original doctrine was based on the
archaic principle that a husband and wife were a single legal
entity, and therefore could not testify against one another.
See 8 J. Wigmore, Wigmore on Evidence S 2228, at 214-15 (J.
McNaughten ed., 1961). The doctrine arrived in this country
via the common law, being first recognized by the United
States Supreme Court in Stein v. Bowman (1839), 38 U.S. 209.
Most states have subsequently codified spousal privilege.
The original form of 5 26-1-802, MCA, was enacted by the
Montana legislature in 1867.
As the doctrine of spousal privilege has undergone
changes over time, so has Montana's statute. Section
26-1-802, MCA, has been amended or re-enacted 15 times.
Changes made to spousal privilege by various courts and
legislatures have drawn criticism from modern commentators,
who say the somewhat piece-meal approach of carving out
exceptions to the original rule has made the nation-wide body
of law on spousal privilege confusing and sometimes
contradictory. See McCormick on Evidence, §§ 78 et seq. (E.
Cleary ed.,, 1984). The current form of § 26-1-802, MCA,
contains two of the more common exceptions found in other
states: spouses can testify in a civil action by one against
the other, or a criminal proceeding for a crime committed by
one against the other.
In light of the criticism aimed at the sometimes
confusing state of spousal privilege law, we will address the
exceptions relied on by the District Court with an eye toward
keeping what is still a fairly small body of law in Montana
as uncluttered as possible. We are aided in this approach by
the fact that much of Montana case law interpreting 5
26-1-802, MCA, and its predecessors has a common thread: in
order to be protected by the privilege, proffered testimony
must possess certain threshold characteristics of marital
communications.
The District Court found one exception to spousal
privilege for Semenze's testimony as to what she had observed
at the time of the homicide. We have previously held that
exclusion of testimony through spousal privilege requires
that the testimony deal with "communications only, that is
utterances and not acts." State v. Houchin (1967), 149 Mont.
503, 507, 428 P.2d 971, 973. See also United States v.
Bolzer (9th Cir. 1977), 556 F.2d 948, 951 (reviewing a case
from the U.S. District Court for the District of Montana, and
holding the privilege applies only to "utterances or
expressions intended by one spouse to convey a message to the
other"). We have also held that spouses may testify about
their feelings that result from privileged communications.
Matter of J.H. (1982), 196 Mont. 482, 487, 640 P.2d 445, 448.
At a minimum, then, the communication for which privilege is
sought must be an utterance or other expression intended to
convey a message to the other spouse. Testimony by Semenza
or DuMontier as to observations of Nettleton's actions;
physical evidence such as Brisson's body, her scarf or
Nettleton's knife; and feelings such as the fear induced by
Nettleton's threats and other behavior do not meet this
minimum, and were therefore admissible.
This Court also recognizes that a spouse can waive
spousal privilege by making the allegedly privileged
communications in the presence of a third party. In re
Marriage of Sarsfield (1983), 206 Mont. 397, 671 ~ . 2 d595.
The terms of our early discussion of this waiver show another
required characteristic of privileged marital communications.
In Thompson v. Steinkamp (19471, 120 Mont. 475, 187 P.2d
1018, we said,
The court was right in overruling defendant's
objection to the testimony of Mrs. Thompson under
the circumstances. Mr. Thompson - - regard the
did not
communications - question - confidential in any
in as
sense because, as above noted, the court was
warranted in finding that he made the
communications to others besides his wife.
Thompson, 187 P.2d at 1021 (emphasis added). Communications
that pass the threshold of being utterances intended to
convey a message must also be regarded by the communicating
spouse as being at least somewhat confidential. Section
26-1-801, MCA, the statute that sets forth the policy behind
Montana's privilege statutes, reads as follows:
Policy to protect confidentiality in certain
relations. There are particular relations in which
it is the policy of the law to encourage confidence
and to preserve it inviolate; therefore, a person
cannot be examined as a witness in the cases
enumerated in this part.
The policy set forth in S 26-1-801, MCA, applies to the
spousal privilege in $ 26-1-802, MCA, and meshes with that
found in the laws of most states:
Most statutes expressly limit the privilege to
"confidential communications." However, even where
the words used are "any communication" or simply
"communications," the notion that the privilege is
born of the "common law" and the fact that the
pre-statutory descriptions of the privilege had
clearly based it upon the policy of protecting
confidences, have actuated most courts to read into
such statutes the requirement of confidentiality.
McCormick S80, at 193, and authorities cited therein.
Semenze's testimony as to statements made by Nettleton in the
presence of Chris Nunn while feigning interest in purchasing
the house trailer, and Nettleton's statement that he was
throwing his knife into the creek in order to wash off
fingerprints, was therefore proper. The presence of third
parties indicates that Nettleton did not intend those
statements to be confidential.
The District Court also found an exception to the
privilege for statements made by Nettleton while beating or
threatening DuMontier and Semenze. The court found this
exception in this Court's reasoning from Sarsfield. In
Sarsfield, we began with the proposition that the purpose
behind spousal privilege is to preserve the sanctity of the
marriage and home, citing our decisions in J.H. and State v.
Taylor (1973), 163 Mont. 106, 515 P.2d 695. We also said,
"This privilege, however, is subject to the maxim that, when
the reason for a rule ceases to exist, so then should the
rule. See Section 1-3-201, MCA." Sarsfield, 671 P.2d at
600. In Sarsfield and J.H., we held that acts of child abuse
destroyed the sanctity of the marriage and home, and along
with it the reason o r having a spousal privilege. We
therefore upheld district court decisions utilizing testimony
of one spouse as to child abuse committed by the other.
Child abuse, however, presents a nearly unique problem.
The child is a "third party" to the marital relationship
insofar as the language of S 26-1-802, MCA, is concerned, and
yet is an integral part of that relationship. While those
cases did not fit neatly into the scheme of the statute,
strong policy considerations called for admission of
testimony that might constitute the only available probative
evidence. Child abuse has generated a large body of law in
various jurisdictions, and has come to be regarded in a
growing number of states a crime against the non-abusing
spouse, and therefore an exception to the privilege. See 2
Wharton's Criminal Evidence S 367, at 471-73, (C. Torcia ed.,
1986), and authorities cited therein. In this case, we are
concerned only with spouses. Rather than muddying the waters
by attempting to apply the rule from Sarsfield and J.H. to
the present situation, we will evaluate the District Court's
ruling in light of the threshold characteristics outlined
above.
As stated above, the body of Montana law on the subject
of spousal privilege is fairly small. However, states with
statutes similar to S 26-1-802, MCA, furnish guidance as to
how the privilege applies in cases of cruelty or abuse by one
spouse against the other. A trend has developed that is
enlightening:
[Ilt has been held by most courts that a spouse's
testimony as to acts of cruelty or abuse is
admissible on the ground that no confidential
communication is involved, or that the information
was not gained as a result of the marital relation.
81 Am Jur 2d, Witnesses, § 167. The spousal privilege
statute in the state of New York reads in relevant part:
A husband or wife shall not be required, or,
without the consent of the other if living,
allowed, to disclose a confidential communication
made by one to the other during marriage.
.
CPLR 5 4502 (b) In People v. Melski (N.Y. 1961), 176 N.E.2d
81, and more recently in People v. D'Amato (N.Y. Sup. Ct.
1980), 430 N.Y.S.2d 521, the courts of New York have held
that threats are not confidential marital communications
protected by the privilege:
The statutory privilege covers only those private
exchanges which "would not have been made but for
the absolute confidence in, and induced by, the
marital relationship."
...
defendant's confessed involvement in the fire at
the Blackwell apartment did not come as a
remorseful outpouring of guilt and anxiety to his
wife; rather his admission to the arson was an
inseparable part of his larger threat to burn down
the homes of his wife's closest relatives
...
Such words of abuse and cruelty uttered with the
intent to injure the other spouse fall outside of
the privilege's protection.
D'Arnato, 430 N.Y.S.2d at 522, 524.
The spousal privilege statute in the state of Washington
is even more similar to our own, and reads in relevant part:
A husband shall not be examined for or against his
wife, without the consent of the wife, nor a wife
for or against her husband without the consent of
the husband; nor can either during marriage or
afterward, be, without the consent of the other,
examined - - any communication made & - - -
as to one to the
other during marriage.
RCWA 5.60.060(1) (emphasis added). In State v. Moxley (Wash.
Ct. App. 1971), 491 P.2d 1326,the Washington Court of Appeals
held the defendant's threat to kill his wife was not a
communication induced by the marital relationship, and
therefore was not privileged.
A full and workable definition of the threshold for
communications between spouses deemed privileged would thus
require two elements. First, the communications must be
utterances or other expressions intended to convey a message
from one spouse to the other. Second, the message must be
intended by the communicating spouse to be confidential in
that it was conveyed in reliance on the confidence of the
marital relationship.
The testimony of both Semenze and DuMontier contains
admissions by Nettleton that he had killed Brisson, as well
as comments about the method he used. However, with only one
exception, these statements were not, as the court in D'Amato
put it, "remorseful outpouring[sl of guilt and anxiety" to
the two women. They were instead an effort to terrify and
intimidate the women into keeping silent about Brisson's
death, and in Semenze's case, to induce her to cooperate in a
cover-up and then live in Nettleton's home under his control.
Nettleton did not rely on the confidence of his marital
relationships with Semenze and DuMontier. He relied on fear
and intimidation. His threatening statements do not possess
the threshold characteristics of confidential marital
communications protected by spousal privilege.
A review of the trial transcript reveals that the vast
majority of the testimony by DuMontier and Semenze was
outside the scope of the protection of § 26-1-802, MCA. Most
of DuMontier's testimony concerned communications with
Nettleton when the two were not married. Indeed, DuMontier's
most damaging testimony concerned Nettleton's statements
calling her Gayla and telling her she should be dead because
he had killed her years before. This incident occurred after
Nettleton and DuMontier were divorced. Semenze's testimony
consisted largely of threats by Nettleton to induce her
cooperation and silence, which do not merit spousal
privilege. The one clear instance of testimony that should
have been protected by the privilege--Nettleton1s admission
to DuMontier in response to her question while they were
married--simply restates the same information contained in
the far greater number of non-privileged statements. The
failure of the District Court to exclude this testimony was
therefore harmless error. See State v. Shaw (1982), 199
Mont. 248, 648 P.2d 287.
We affirm the decision of the District Court.
H e .A Justice
We Concur: A