People v. Vann

Levin, J.

(dissenting). The majority distinguishes People v Love, 425 Mich 691; 391 NW2d 738 (1986), on the ground that in this case Vann’s conduct respecting his wife occurred at the same time as his scuffle with her lover.1 As a result, the majority concludes that Vann’s assault on the third party "did 'grow out of’ the personal wrong or injury done by the defendant to his wife.”2

This Court has held, however, that "grows out of a personal wrong or injury” codified common-law exceptions to the rule excluding spousal testimony. In People v Quanstrom, 93 Mich 254, 255; 53 NW 165 (1892), this Court said that the phrase was *54"used in a restricted sense.” This Court said that, if the phrase was intended to have a broad meaning, the exceptions for cases such as spousal maintenance lawsuits would have been unnecessary. The Court then surveyed the common-law exceptions to the rule against spousal testimony as well as more recent cases, and concluded:

In the cases excluding the testimony of the wife, it is held that the legislature had imported into the statute the common-law rule, and that, before any departure from that rule . . . can be adjudged, the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit. The clear weight of authority supports the[se] principles .... [Id. at 260.][3]

Although Quanstrom held that a bigamy prosecution did not "grow[ ] out of a personal wrong or injury” done to the wife, the Legislature did not change the "growing out of ” language. Id. at 254.4 Instead, it added an exception for bigamy prosecutions.5 Later exceptions added to the statute have also left the "growing out of ” language intact.6

The common-law exception, which the statute codified, covered criminal prosecutions of a spouse for physically injuring the other spouse.7 The exception is too narrow to fit the facts of this case.

*55Although their language differs, the spousal privilege statutes of most states include exceptions for crimes committed by one spouse against the other.8 Courts in these jurisdictions have reached a variety of results when faced with cases factually similar to this one. Some, like Quanstrom, have required that the defendant actually be charged with a crime against the witness spouse.9

Others have broadly construed such statutes.10 In Fortes v People, 113 Cal App 3d 704, 708; 170 Cal Rptr 292 (1980), a California appellate court held that, for the exception to apply, it was not necessary to charge a defendant with committing a crime against his wife. But "the People must make at least a prima facie showing” that defendant has committed a crime against his wife.

Leave to appeal should either be granted, or denied. The majority’s decision to peremptorily reverse the Court of Appeals belittles its efforts, in the disposition of this case, as reflected in its carefully written, albeit unpublished, opinion, and deprives Vann and his counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals._

*56Today’s peremptory decision reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe.

When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs. A justice who may have missed a significant point of law or fact on perusal of the materials considered before voting for peremptory reversal might be enlightened and persuaded in the course of oral argument.

Also lost, when this Court acts without plenary consideration, is the opportunity for conference discussion after oral argument.

Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required.11 In the instant case, factual and legal *57assessment is required. Peremptory disposition is not appropriate.

MRE 501 provides:

Privilege is governed by the common law, except as modified by statute or court rule.

In Butler and today in Vann the Court adds an additional exception: "or per curiam opinion peremptorily reversing the Court of Appeals.”_

Vann is also unlike Love because Vann was not charged with a crime against his wife.

Ante at 52.

3 See also Love, supra at 710-712 (Boyle, J., dissenting) noting that Quanstrom construed the exception as a codification of the common law, but arguing that the common-law construction should be abandoned.

This court criticized Quanstrom in another per curiam opinion, People v Butler, 430 Mich 434, 439-442; 424 NW2d 264 (1988), for holding that bigamy was not a "personal wrong or injury.” But it did not question Quanstrom’s view that the phrase is based on the common law.

1897 PA 212.

See, e.g., 1915 PA 314, ch xvii, § 67 (actions for divorce); 1939 PA 82 (crimes "committed against the children of either or ■ both” spouses).

Quanstrom, supra at 255; People v Sebring, 66 Mich 705, 706-707; 33 NW 808 (1887).

See, e.g., 42 Pa Cons Stat Ann 5913; NJ Rule of Evidence 23(2)(b); Tex Code Crim P Ann 38.11.

Jenkins v Commonwealth, 219 Va 764, 767; 250 SE2d 763 (1979); Commonwealth v Scott, 516 Pa 346, 348-350; 532 A2d 426 (1987); Young v Texas, 603 SW2d 851, 852 (Tex Crim App, 1980); Missouri v Manning, 657 SW2d 301, 302 (Mo App, 1983); New Jersey v Eason, 138 NJ Super 249, 255; 350 A2d 506 (1975); 2 Wharton, Criminal Evidence (14th ed), § 367, pp 473-474.

Loesche v Alaska, 620 P2d 646, 650 (Alas, 1980) (allowing testimony of a spouse who was in the room when the defendant killed a third party); Arizona v Whitaker, 122 Ariz 537, 542; 544 P2d 219 (1977) (similar to Loesche); Maiben v Mississippi, 405 So 2d 87, 89 (Miss, 1981) (allowing a wife to testify after she scuffled with her defendant husband who had just killed a third party); Washington v Thompson, 88 Wash 2d 518, 524; 564 P2d 315 (1977) (allowing a wife to testify in a defendant’s trial for murder that allegedly occurred more than eight hours after the defendant hit his wife in the face and beat her with a rubber hose).

People v Wright, 439 Mich 914, 914-915 (1992) (Levin, J., dissenting); Roek v Chippewa Valley Bd of Ed, 430 Mich 314, 322 (1988) (Levin, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich 867, 868-875 (1990) (Levin, J., dissenting); People v Little, 434 Mich 752, 769-770 (1990) (Levin, J., dissenting); People v Wrenn, 434 Mich 885, 885-886 (1990) (Levin, J., dissenting); Harkins v Northwest Activity Center, Inc, 434 Mich 896, 899 (1990) (Levin, J., dissenting); Dep’t of Social Services v American Commercial Liability Ins Co, 435 Mich 508, 515 (1990) (Levin, J., separate opinion); Yahr v Garcia, 436 Mich 872, 872-873 (1990) (Levin, J., dissenting); Universal Underwriters Ins Co v Vallejo, 436 Mich 873, 873-874 (1990) (Levin, J., dissenting); People v Stephens, 437 Mich 903, 903-910 (1991) (Levin, J., dissenting); People v Berkey, 437 Mich 40, 54 (1991) (Levin, J., dissenting); Turner v Washtenaw Co Rd Comm, 437 Mich 35, 38-39 (1991) (Levin, J., separate opinion); Lepior v Venice Twp, 437 Mich 955, 956-966 (1991) (Levin, J., dissenting); Rochester Hills v Southeastern Oakland Co Resource Recovery Authority, 440 Mich 852, 852-856 (1992) (Levin, J., dissenting); In re Reinstatement of Eston (Grievance Administrator v Eston), 440 Mich 1205, 1205-1207 (1992) (Levin, J., dissenting); In re Reinstatement of Callanan, 440 Mich 1207, 1207-1209 (1992) (Levin, J., dissenting); McFadden v Monroe Civil Service *57Comm, 440 Mich 890, 890-891 (1992) (Levin, J., dissenting); Holly Twp v Dep’t of Natural Resources (Holly Twp v Holly Disposal, Inc), 440 Mich 891, 891-893 (1992) (Levin, J., dissenting); Marzonie v ACIA, 441 Mich 522, 535-539 (1992) (Levin, J., dissenting); People v Waleed, 441 Mich 902, 902-903 (1992) (Levin, J., dissenting); People v Hardison, 441 Mich 913, 914-916 (1993) (Levin, J., dissenting); People v Justice, 441 Mich 916, 917-919 (1993) (Levin, J., dissenting); People v LaClear, 442 Mich 867, 867-871 (1993) (Levin, J., dissenting); Auto-Owners Ins Co v City of Clare, 446 Mich 1, 16-18 (1994) (Levin, J., dissenting); Weisgerber v Ann Arbor Center for the Family, 447 Mich 963, 964-969 (1994) (Levin, J., dissenting); Howard v White, 447 Mich 395, 405-410; 523 NW2d 220 (1994) (Levin, J., dissenting).

See Schweiker v Hansen, 450 US 785, 791 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error”); Leis v Flynt, 439 US 438, 457-458 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of . . . error.’ Eaton v Tulsa, 415 US 697, 707 [94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]”).