Tuesday, December 7, 2010
Mississippi Confidential: Supreme Court Of Mississippi Discusses Two Marital Privileges In Manslaughter Appeal
Mississippi Rule of Evidence 504(b) provides that
In any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse.
Meanwhile, Mississippi Rule of Evidence 601(a) provides that
In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both, except as provided in Rule 601(a)(1) or Rule 601(a)(2)....
The Supreme Court of Mississippi's recent opinion in Newell v. State, 2010 WL 4882026 (Miss. 2010), provides an interesting, albeit somewhat flawed, discussion of these two marital privileges.
In Newell, James C. Newell appealed his conviction for manslaughter stemming from his altercation with and fatal shooting of Adrian Boyette in the parking lot of the Slab House bar in Lowndes County. The facts adduced at trial revealed that
Newell married his wife Diane on April 30, 2008, despite a previously tumultuous relationship. During their two-week marriage, Newell suspected Diane of cheating on him with Tony Hayes, with whom she previously had lived. In fact, Newell already had consulted an attorney about getting a divorce from Diane because of her suspected infidelity. On May 14, 2008, at around 5:00 p.m., Newell called Diane's cell phone and left two voicemail messages. In the first message, he threatened to shoot Diane and Tony, but in the second message he recanted. Nonetheless, later that evening, Newell drove from Vernon, Alabama, over the state line to the Slab House bar on Caledonia-Vernon Road in Lowndes County, Mississippi. He stated that he went there to confirm Diane's and Tony's relationship before he went through with the divorce.
Newell went to the Slab House but came across Boyette instead of Diane and Tony. According to the prosecution, Newell took out his anger on Boyette by shooting and killing him, but Newell claimed that he was acting in self-defense.
After he was convicted, Newell appealed, claiming, inter alia, that the trial court improperly allowed for the admission his two voicemail messages, which he claimed were inadmissible under either Mississippi Rule of Evidence 504(b) or Mississippi Rule of Evidence 601(a). The Supreme Court of Mississippi disagreed, finding that
the same facts negate both spousal privilege and spousal incompetency. Newell's message threatened to shoot Diane and Tony. Because this threat would have been communicated to Tony or the police, it is not "confidential" under Rule 504....But even if we accept Newell's argument that a private threat is not intended for disclosure, both spouses waived Rules 504 and 601 by their respective actions....Investigators obtained Diane's cell phone on Newell's request. At the time he asked the officers to check her phone, he knew that damaging messages were there. Diane surrendered her phone and provided the password to her voicemail. Thus, neither Rule 504 nor Rule 601 applies.
I agree with this latter conclusion but disagree with the former conclusion as applied to Mississippi Rule of Evidence 601(a). While Mississippi Rule of Evidence 504(b) only covers confidential marital communications, Rule 601(a) provides that a spouse is not competent to testify her party-spouse, unless there is waiver. There is no requirement that the subject of that testimony be confidential communications.
Now, both of these rules are also deemed inapplicable in cases in which the action against the defendant spouse is premised upon crimes committed against the other spouse or their children. Interestingly enough, this exception would not have applied in Newell because Newell was charged with a crime against Boyette and not a crime against Diane, even though the first voicemail involved a threat against Diane.