Michigan Court Of Appeals Holds Spousal Privilege Unappealable By Defendant

On April 30, 2015, the Michigan Court of Appeals held in a criminal case that a defendant convicted of a crime has no standing to assert on appeal that the trial court committed error when it failed to inform defendant's spouse - a witness against him in his criminal case - that she held a privilege against being compelled to testify against defendant as his spouse. 

In People v Allen, Docket No. 318560, the Michigan Court of Appeals addressed the issues of 

whether a trial court must expressly inform a testifying spouse about his or her testimonial privilege before the spouse testifies or whether a non-testifying spouse has standing to challenge the court’s failure to do so.

The Court first recited the facts of the case.

Following a conviction of fourth-degree criminal sexual conduct, defendant was required to register under SORA. On April 30, 2012, defendant registered with the address 6123 Clarksville Road. Pursuant to the requirements of SORA, defendant verified that address on January 9, 2013.

On March 17, 2013, Officer James Yeager received an anonymous tip that suggested defendant was not in compliance with SORA. Yeager testified that the tip stated that someone should investigate where defendant was living and the tip provided an address of 211 West Riverside. Yeager and his partner began investigating the anonymous tip. Yeager testified that the Clarksville Road address was a trailer home that appeared to be uninhabitable. The residence was unlit and appeared to be vacant or unoccupied. Yeager testified that there was snow on the ground, but he observed no tire tracks in the driveway or footprints leading up to the front porch or around the back of the trailer. Additionally, part of the skirting was missing from the trailer, exposing pipes underneath. Yeager explained that it did not appear as if the trailer was heated because, with the freezing weather, the pipes could freeze up. Yeager testified that he and his partner established that nobody was at defendant’s registered address on March 17, 2013 . . . .

After his third visit to 6123 Clarksville Road, Yeager visited the address left in the anonymous tip, 211 West Riverside. He visited this address around 10:00 p.m. on March 26, 2013. Yeager testified that Lisa Allen, defendant’s wife, answered the door when he knocked. Yeager asked Lisa for defendant. After initially denying that defendant was present, Lisa went inside the residence and defendant appeared at the front door shortly thereafter. Yeager asked defendant where he had been staying. Defendant responded with the Clarksville Road address and indicated that he had stayed there the previous night. Yeager told defendant that he had been monitoring that residence for a period of time and knew defendant was not staying there. Defendant then explained that he worked on Parmeter Road for Michael Clark who ran a carnival-type operation. He stated that he stayed at the address 901 West Parmeter Road for a couple weeks. Defendant told Yeager that he stopped by Lisa’s residence after he finished working on Parmeter Road that day, but he planned to get a ride to his address on Clarksville Road to spend the night there. Defendant admitted to Yeager that it had been a couple weeks since he had been to the Clarksville Road address, but he insisted it was inhabitable and heated. After this discussion, Yeager arrested defendant for failing to comply with SORA’s registration requirements . . . .

Before the prosecutor rested her case-in-chief, defendant indicated that he wanted to call Kathryn Perry as a defense witness. Initially, the trial court precluded Perry’s testimony for two reasons: first, Perry sat in the courtroom during opening statements contrary to the trial court’s sequestration order; and, second, defendant failed to notify the prosecutor of the witness before trial. In discussing Perry’s testimony, the prosecutor asked the trial court for a compromise. The prosecutor suggested that if the trial court allowed Perry to testify, then she would call Lisa as a witness. Defense counsel initially objected, citing spousal privilege. Defense counsel stated,

I don’t know that she’s been advised that she holds the spousal privilege and is in a position to waive it. She may have made an incriminating statement to Trooper Yeager at the time he came to her house . . . I would request that she be advised on her spousal privilege and also her Fifth Amendment protection.

The trial court responded, “I’m going to need some authority from you before I do that.”

Following the prosecution’s case-in-chief, defense counsel stated as follows:

I’d like to resolve the witness issue. My office tells me that the wife has to claim but she can’t if she’s a victim. I don’t believe she’s a victim in this case so the wife would have to claim the privilege. Whether she waives it or not would be up to her. We would ask that you order the compromise. Ms. Kathryn Perry can testify during our presentation and Ms. – Mrs. Allen can testify on rebuttal.

The trial court accepted the parties’ compromise and permitted Perry and Lisa to testify. The issues of spousal immunity and the Fifth Amendment were not revisited . . . .

The Court's analysis of whether the trial court committed error by failing to inform the witness-spouse of her spousal privilege against being compelled to testify followed.

Defendant argues that the trial court was obligated to inform Lisa that she could invoke her spousal privilege and refuse to testify against defendant. MCL 600.2162(2) provides in relevant part that; “[i]n a criminal prosecution, a husband shall not be examined as a witness for or against his wife without his consent or a wife for or against her husband without her consent. . . ” unless a statutory exception applies (emphasis added). The holder of the privilege is the witness-spouse as opposed to the defendant-spouse, which means a witness-spouse “has the legal right not to be compelled to testify in certain criminal prosecutions against a defendant-spouse. . . .” People v Szabo, 303 Mich App 737, 746-747; 846 NW2d 412 (2014). In other words, “the witness-spouse must consent to testify.” Id. at 747.

We are unaware of any published case law in Michigan addressing whether a trial court must expressly inform a testifying spouse about his or her testimonial privilege before the spouse testifies or whether a non-testifying spouse has standing to challenge the court’s failure to do so. The Seventh Circuit Court of Appeals, however, has addressed a similar issue in the context of the federal spousal testimonial privilege, which is essentially the same as Michigan’s privilege in that the testifying spouse is the holder of the privilege. See e.g. Trammel v United States, 445 US 40, 53; 100 S Ct 906; 63 L Ed 2d 186 (1980). Specifically, in United States v Brock, 724 F3d 817, 823 (CA 7, 2013), the defendant’s wife testified at a pre-trial detention hearing. Subsequently, during the defendant’s criminal trial, the district court determined that the wife waived her testimonial privilege by testifying at the detention hearing. On appeal, the defendant argued that the district court erred in determining that his wife waived her privilege. The Seventh Circuit held that the defendant did not have standing to challenge the district court’s finding because he was not the holder of the privilege, explaining, “because the defendant- spouse could not invoke the privilege, he also could not appeal a rejection of the privilege.” Id. at 823.

The holding in Brock aligns with precedent from other jurisdictions. For example, in Smith v United States, 947 A 2d 1131, 1135 (DC, 2008), in applying the District of Columbia’s testimonial privilege, which mirrors the federal privilege, the Court of Appeals for the District of Columbia noted that “it is a ‘settled rule’ that a defendant ordinarily does not have standing to complain of an erroneous ruling on a witness’s claim of privilege.” See also United States v Crockett, Jr., 534 F2d 589, 604 (CA 5, 1976) (holding that the defendant husband did not have standing to appeal the trial court’s overruling his wife’s assertion of her spousal privilege). Moreover, Brock aligns with precedent involving waiver of other privileges such as the Fifth Amendment privilege against self-incrimination. See Paramount Pictures Corp v Miskinis, 418 Mich 708, 715; 344 NW2d 788 (1984) (noting that “[t]he Fifth Amendment privilege against self-incrimination is a personal privilege and cannot be asserted on behalf of another.”) People v Wood, 447 Mich 80, 90; 523 NW2d 477 (1994) (noting that a criminal defendant “lacked standing to either claim the privilege against self-incrimination for a witness or to complain about an error on the part of the trial judge in overruling the witness’ attempt to assert it”) (quotation marks and citations omitted).

In this case, the trial court did not expressly determine that Lisa waived her testimonial privilege before she willingly testified without objection. By allowing her to testify, the trial court implicitly concluded that Lisa did not assert her testimonial privilege. As discussed below, while it would have been ideal had the trial court informed Lisa of her privilege on the record and inquired as to whether she understood and waived her privilege, because defendant could not invoke Lisa’s testimonial privilege, he has no standing to appeal the court’s determination that Lisa did not assert the privilege. Brock, 724 F 3d at 823.