STATE V. TEEL, 1985-NMCA-115, 103 N.M.
684, 712 P.2d 792 (Ct. App. 1985)
STATE OF NEW MEXICO,
Plaintiff-Appellant,
vs.
PAUL TEEL, Defendant-Appellee
COURT OF APPEALS OF NEW MEXICO
1985-NMCA-115, 103 N.M. 684, 712 P.2d 792
APPEAL FROM THE DISTRICT COURT OF CURRY
COUNTY, Fred T. Hensley, Judge.
PAUL G. BARDACKE, Attorney General,
ELIZABETH MAJOR, Assistant Attorney General, Santa Fe, New Mexico, Attorneys
for Plaintiff-Appellant.
MORRIS STAGNER, Clovis, New Mexico, DAN
B. BUZZARD, Clovis, New Mexico, WINSTON ROBERTS-HOHL, Santa Fe, New Mexico, for
Defendant-Appellee.
{1} Defendant was indicted on
a charge of fraud in excess of $2,500.00, in violation of NMSA 1978, Section
30-16-6
(Repl. Pamp. 1984). Defendant filed a motion in limine seeking to exclude the
testimony of his former wife, Elizabeth Teel, based on the spousal confidential
communication privilege
{*685} of NMSA
1978, Evid.R. 505 (Repl. Pamp. 1983). Following a hearing on the motion, the
trial court determined that Ms. Teel's testimony was "inextricably
intertwined" with privileged communications and granted defendant's motion
in limine.
{2} Two issues are presented
on appeal:
(1) Whether the proposed testimony of Ms. Teel contained
confidential communications proscribed by Rule 505;
(2) Whether the trial court abused its discretion in ruling
that Ms. Teel's testimony should be excluded because it would be
"inextricably intertwined" with privileged communications.
{3} The case involves an
allegedly fraudulent claim made by defendant to Farmers Insurance Group. In
December of 1981, defendant reported the loss of a valuable diamond from a gold
ring setting. Ms. Teel signed the Proof of Loss, reputedly at the request of her
husband. In March of 1982, the insurance company paid defendant $4,750.00 for
the claimed loss. The draft was endorsed and cashed by defendant.
{4} Several months later Ms.
Teel noticed her husband wearing a new ring with a diamond of the same size, shape
and tint as the stone previously reported lost. Due to its distinctive nature,
Ms. Teel recognized the diamond as the same stone.
{5} Defendant and Elizabeth
Teel had marital difficulties and were subsequently divorced. In March of 1984,
Elizabeth Teel contacted Detective Morgan of the Clovis Police Department and
reported that her husband had made a fraudulent claim to Farmers Insurance
Group. She stated that her motivation in reporting the apparent fraud was to
avoid being implicated in criminal wrongdoing. Following an investigation,
defendant was charged with fraud. During grand jury proceedings, a Clovis
jeweler testified that defendant delivered a diamond to him for mounting on a
new setting. The new ring, which had been confiscated from defendant, was
identified by the jeweler as the ring he had made for defendant.
{6} Elizabeth Teel's grand
jury testimony was limited to three specific facts. The exclusion of her
testimony on these matters forms the basis of this appeal. First, Ms. Teel
testified that she was present when the claim for the lost diamond was made to
the agent for the insurance company and that she signed the Proof of Loss for
defendant. Second, she identified her husband's signature from the endorsement
line of the $4,750.00 draft. Third, she recognized the diamond in her husband's
second ring as the same diamond that had previously been reported lost. The
trial court ruled that Ms. Teel could not testify as to these matters under
Rule 505.
{7} NMSA 1978, Section
38-6-6
refers to privileged communications between spouses. The statute states in
pertinent part:
A. No husband shall be compelled to disclose any
communication made by his wife during the marriage, and no wife shall be
compelled to disclose any communication made to her by her husband during the
marriage.
D. If a person offers himself as a witness and voluntarily
testifies with reference to the communications specified in this section, that
is a consent to the examination of the person to whom the communications were
made as above provided.
This statute extends a spousal testimonial privilege to any
communication. Rule 505, however, provides that one spouse may prevent another
from disclosing a confidential communication, made during the marriage.
Thus, the statute is far more comprehensive and seeks to grant a greater
privilege than does the rule. The New Mexico Supreme Court has held that any
conflict between the rules of evidence and statutes attempting to create
evidentiary privileges must be resolved in favor of the rules. Maestas v.
Allen, 97 N.M. 230, 638 P.2d 1075 (1982). Thus, Section 38-6-6(A), which
mirrors the older common law rule that neither spouse could be compelled to
disclose a communication made during the marriage, does not govern the court's
decision {*686} in this case. See
Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976) cert.
denied 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).
{8} In determining whether
the trial court erred in excluding Ms. Teel's testimony, the evidence sought to
be excluded under the marital privilege must qualify as a confidential
communication under Rule 505. This rule was amended in 1980 to eliminate the
absolute testimonial privilege which previously existed.
See State v.
Wheeler,
95 N.M. 378,
622 P.2d 283 (Ct. App. 1980). The rule defines a
confidential communication as one "made privately, and not intended for
further disclosure." Rule 505(a)(1). To qualify under the evidentiary
privilege there must be a communication and it must be intended to be private.
8 J. Wigmore,
Wigmore on Evidence, § 2336 at 648 (1961). Thus, our task
is to determine whether the excluded testimony was a communication and if so,
whether the communication was intended to be private. There is no uniformly accepted
judicial interpretation for "communication." Some courts have limited
the term to expressions intended by one spouse to convey a meaning or message
to the other. E. Cleary,
McCormick on Evidence, § 79 (2d ed. 1972);
see
United States v. Lustig, 555 F.2d 737, 748 (9th Cir. 1977). Yet other
courts have broadly construed confidential communications to include acts,
facts, conditions and transactions.
McCormick at 164;
see Arnold v.
State, 353 So.2d 524 (Ala. Cr. App. 1977). In discussing the various constructions
given the term "communications", and in criticizing the broad
interpretation afforded the term by some courts, Professor McCormick stated:
[I]t would seem that the privilege should be limited to expressions
intended by one spouse to convey a meaning or message to the other.
All extensions beyond communications seem unjustified. The
acts thus protected are frequently acts done in furtherance of a crime or
fraud, and thus under the principle developed for the cognate privilege for attorney-client
communications, should not be protected from disclosure even by direct
communication.
{9} The 1980 amendment to
Rule 505 narrowed the scope of privilege from all communications to
confidential communications. It would be inconsistent to suppose that New
Mexico narrowed the application of the rule on one hand, but intended to
broaden its scope on the other. Thus, we determine that the communications
contemplated under the rule should be limited to utterances or expressive acts
intended by one spouse to convey a meaning or message to the other. While we
adopt a principle that a communication may include an expressive act, not every
act observed by defendant's spouse is a communication.
Coleman v. State,
668 P.2d 1126 (Okl.Cr. 1983). In
Coleman defendant's wife testified that
on the day of the homicide with which her husband was charged, defendant came
home, retrieved a shotgun and shells from their bedroom, left in a white camper
pickup and returned at a certain time. On appeal, the court found that the
wife's testimony did not violate the confidential communications privilege
because the privilege did not extend to matters learned through observation of
the spouse's non-communicative acts which were not intended to be confidential.
See also State v. Fowler, 101 Idaho 546, 617 P.2d 850 (1980) (knowledge
of the possessions of one's spouse and their location is generally not a
spousal communication protected by this privilege).
{10} The second prong of the
Rule 505 test is whether the communication was intended to be confidential. Any
presumption of privacy granted a marital communication is negated by proof of
the presence of a third party at the time the communication was made, or proof
that the information communicated was meant to be conveyed to a third person.
Pereira
v. United States, 347 U.S. 1, 74 S. Ct. 358, 98 L. Ed. 435 (1954).
Observations by one spouse of the non-communicative acts of the other,
especially acts which are open to the view of others, are not confidential
communications.
{*687} State v.
Garland, 617 S.W.2d 176 (Tenn.Cr. App.1981) (the fact that defendant owned
certain items of clothing is not by nature confidential; a shirt and pants
publicly worn and observed by many is obviously not confidential). In accord
with this two prong test, we review Ms. Teel's testimony.
IDENTIFICATION OF THE DIAMOND
{11} Defendant wore the
second ring publicly. The ring had been observed by others, and the diamond had
been observed by the jeweler who mounted it on a new setting after defendant
reported it lost. Ms. Teel's observation of the diamond in her husband's second
ring was not a communication nor could the act of wearing the ring have been
intended to be confidential.
See State v. Garland. Ms. Teel was not
asked to relate any statements or expressions which defendant may have made
concerning the diamond, nor was there any indication that the wearing of the
diamond as an item of jewelry was a secret. Ms. Teel's testimony concerning the
diamond is not subject to the Rule 505 privilege.
IDENTIFICATION OF DEFENDANT'S SIGNATURE
{12} Ms. Teel was shown the
negotiated draft and asked if she could identify the signature. She said it was
her husband's. The identification of defendant's signature does not constitute
a confidential communication. The signature was not an expression or an expressive
act intended to convey a message from defendant to his wife. Any message that
would be conveyed by the signature would be directed to the bank and to Farmers
Insurance Group. If the signature could be deemed a communication, the fact
that it was meant to be seen by third parties destroys any claim of
confidentiality. In
People v. Saidi-Tabatabai, 7 Cal. App.3d 981, 86
Cal. Rptr. 866 (1970), the court found that the testimony of a husband that
certain handwriting was his wife's did not violate the privilege against
disclosure of confidential communications. Even assuming that the contents of
the writing are confidential, the recognition of a spouse's handwriting does
not fall within the privilege. "Every court that ever analyzed the problem
has held that a spouse may identify the handwriting of the other spouse."
Id.
7 Cal. App.3d at 984, 86 Cal. Rptr. at 869. The trial court's determination
that Ms. Teel could not justify as to her identification of her husband's
signature was error.
{13} During the grand jury,
Ms. Teel testified that someone from the insurance company came to the Teel
house, and she signed the claim for the lost diamond. She signed the form of
her husband because he was not there. During the hearing on defendant's motion
in limine, the trial court stated that because defendant intended that his
"communication" be passed on to a third person, specifically the
insurance agent, any marital privilege had been waived. We agree with the
court's analysis.
See Resnover v. State, 267 Ind. 597, 372 N.E.2d 457
(1978) (if a communication from a husband to a wife is intended by the husband
to be transmitted by the wife to a third person, there is no privilege because
there is no confidentiality). While the court correctly ruled that the
privilege was not applicable to the filing of the claim, the court did find
that the privilege was applicable to the other portions of Ms. Teel's
testimony, and thus, excluded
all testimony out of a concern that the
admissible testimony might be tainted by inadmissible evidence. Although
certain communications of defendant voiced to his former wife during their
marriage may be subject to exclusion under Evid. Rule 505, the trial court's
order of exclusion was too sweeping in its scope. The order had the effect of
improperly excluding some admissible testimony of defendant's ex-wife.
{14} Trial judges have broad
discretion in determining the admissibility of evidence.
State v. Day,
91 N.M. 570,
577 P.2d 878 (Ct. App. 1978). A trial court's determination
{*688} of admissibility will not be disturbed
on appeal absent an abuse of discretion.
State v. Worley,
100 N.M. 720,
676 P.2d 247 (1984). The trial court demonstrated care, concern and caution in
dealing with this issue. After receipt of briefs and hearing oral arguments,
the court conducted independent research, and directed the attorneys to present
additional arguments. Defense counsel urges us to command the trial court for
proceeding with care and circumspection in this case. This we do. Nevertheless,
we conclude that the trial court erred in excluding the testimony of
defendant's ex-wife. We therefore reverse the court's order which excludes the
presentation of her testimony.
Donnelly, Chief Judge, and Alarid, Judge, concur.