PEOPLE
v.
WILLIAMS
Docket Nos. 110466, 110481.
Michigan Court of Appeals.
Decided December 19, 1989.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Lawrence W. Rattner, for defendant.
Before: GILLIS, P.J., and MICHAEL J. KELLY and R.B. BURNS,[*] JJ.
PER CURIAM.
In Docket No. 110466, the prosecutor appeals by interlocutory leave granted from the trial court's orders granting defendant's motions to suppress evidence of her husband's statement to a 911 operator on the basis of marital privilege, MCL 600.2162; MSA 27A.2162, and evidence of her conduct after she observed the police administering a gunpowder residue test to her husband. We reverse. In Docket No. 110481, defendant appeals by interlocutory leave granted from the court's orders denying her motions to dismiss *554 and to suppress evidence of the murder weapon on the basis that it was seized pursuant to a search warrant which included defendant's husband's statements. We affirm.
The prosecutor first claims that the trial court erred when it suppressed evidence of defendant's husband's statement to a 911 operator to the effect that "[a] woman just shot her tenant." The prosecutor claimed that the statement was an excited utterance and, therefore, the 911 operator could testify as to the statement made. MRE 803(2). The court ruled that the marital privilege applied. We disagree. The marital privilege is a testimonial privilege which is inapplicable here because defendant's husband was not required to testify. People v DeWitt, 173 Mich App 261, 265-266; 433 NW2d 325 (1988). Instead, the 911 operator would testify to the statement if indeed the court determined that a hearsay exception applied or the tape would be played if it were otherwise properly introduced. Id.
The prosecutor also claims that the court improperly suppressed evidence of the defendant's actions after she observed the police performing a gunpowder residue test upon her husband. Defendant subsequently went into the bathroom and allegedly soiled her hands with fecal matter. She washed her hands and, therefore, no gunpowder residue test could be performed. The prosecutor claimed that defendant's actions could be considered as having been done to avoid the test and, thereby, were indicative of guilt. Defense counsel argued that the evidence was inadmissible because defendant did not have an obligation to take the test and that her refusal to take the test should not be considered an admission of guilt given her right against self-incrimination. The prosecutor argued that the right against self-incrimination *555 did not apply, citing Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). Moreover, the prosecutor noted that defendant had not refused to take the test, but made it impossible for the police to take the test by soiling and washing her hands. When the court noted that the soiling may have been unintentional, the prosecutor argued that that was for the jury to decide. While the court was initially inclined to rule in the prosecutor's favor, it reconsidered and held that the evidence was substantially more prejudicial than probative and that defendant's right against self-incrimination would be implicated because she had a right to refuse to take the test.
We hold that the court abused its discretion when it ruled that this evidence was substantially more prejudicial than probative. MRE 403. Certainly, the evidence was relevant because it could be inferred that defendant had taken evasive action upon observing the test being administered to her husband. MRE 401. Defendant remained free to testify as to her version of what occurred or to argue that a different inference should be drawn.
Moreover, the attempted administration of a gunpowder residue test did not violate defendant's right against self-incrimination. See, e.g., State v Ulrich, 187 Mont 347; 609 P2d 1218 (1980), and State v Chesney, 166 Conn 630; 353 A2d 783 (1974), cert den 419 US 1004; 95 S Ct 324; 42 L Ed 2d 280 (1974).
We now turn to the issues raised in Docket No. 110481. Defendant claims that the court improperly denied her motion to dismiss because of two errors which she claims were committed by the examining magistrate who heard the matter following a remand. Defendant first claims that the successor examining magistrate abused his discretion in binding her over because he relied on the *556 original preliminary examination transcript which, at that time, was hearsay because there was no proof that the witnesses who originally testified were unavailable. MRE 804(b)(1). Here, the original examining magistrate dismissed the charges against defendant. The prosecution appealed and the trial court remanded the matter "for further examination and for a determination of whether the defendant should be bound over for trial on the basis of all evidence adduced." In the interim, the original examining magistrate left the bench. Another judge was assigned to hear the matter. We believe that this situation is analogous to the situation described in MCR 2.630 and, therefore, hold that, given the circumstances of this case, the successor magistrate could properly rely on the original preliminary examination transcript in making his ruling. Cf. 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), Rule 2.630, comment, pp 763-764.
Defendant also claimed that the successor examining magistrate abused his discretion when he bound defendant over because he exceeded the scope of the trial court's remand order by reevaluating the original examining magistrate's conclusions. Having reviewed the trial court's remand order, including the language quoted in the previous paragraph, we hold that the successor examining magistrate's actions were proper. Hence, the trial court properly denied defendant's motion to dismiss.
Finally, defendant claims that the trial court improperly denied her motion to suppress evidence of the search warrant which was based in part on information her husband conveyed to the police. Defendant claimed that such information violated the marital privilege because she would have to *557 waive the privilege in order to challenge the search warrant. We agree with the trial court that the marital privilege is a testimonial privilege, MCL 600.2162; MSA 27A.2162, and does not bar information from being given by one's spouse to the police. DeWitt, supra.
In Docket No. 110466, the trial court's orders are reversed. In Docket No. 110481, the trial court's orders are affirmed.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.