Sunday, May 20, 2012
The Vermonster: Supreme Court Of Vermont Finds Exception To Confidential Marital Communications Privilege Applied In Assault Case
Like many states, Vermont has a privilege for confidential marital communications. Vermont's privilege is housed in Vermont Rule of Evidence 504(b), which provides that
Any person has a privilege to refuse to disclose and to prevent his spouse or any other person from disclosing any confidential statement, conversation, letter, or other confidential communication between such person and his spouse occurring while they were lawfully married, and to refuse to testify and prevent his spouse from testifying in any case as to any matter which in the opinion of the court would lead to a violation of marital confidence. This privilege exists whether or not the person and spouse are still lawfully married at the time at which the spouse's testimony is to be given.
And, like many states, Vermont has an exception to this privilege in cases in which a spouse is charged with a crime against the other spouse or the couple's children. As is made clear by the recent opinion of the Supreme Court of Vermont in State v. Kolibas, 2012 WL 1738979 (Vt. 2012), Vermont's exception is broader.In Kolibas, Robert Kolibas was
the father of twelve-year-old A.K., who invited her thirteen-year-old friend, T.F., to a sleep-over date. That evening, defendant made blended fruit drinks known as "smoothies" for the two girls, his wife, and himself. At trial, defendant testified that he placed one Ambien (a sleep aid) and half of a Valium (an anti-anxiety medication) into his wife's drink because she was "stressed out" and he "didn't want her bothering [him]." Defendant's wife testified that after defendant left the kitchen to bring two smoothies to the girls, she poured her part of her drink into defendant's cup.
The girls drank the smoothies as they lay on a futon in A.K.'s bedroom and watched a movie. T.F. testified that the smoothie did not taste normal and described what happened as follows. She soon felt dizzy and tired, and fell asleep in about thirty minutes. T.F. remembered waking up and seeing defendant in her room. She fell back asleep and woke to defendant touching her chest. She again fell back asleep and awoke as defendant pulled down her pants and touched her vagina. She fell back to sleep and awoke as defendant pulled her pants back up, kissed her on the cheek, and said, "I'm sorry" and "Don't tell anybody."She fell asleep for a final time, and when she awoke, called her mother to come pick her up.
Kolbias was eventually charged with lewd and lascivious conduct for his acts upon T.F., and two counts of aggravated assault for drugging T.F. and A.K.
While incarcerated awaiting trial, defendant sent his wife a letter in which he said he had put Valium and Ambien in her smoothie because he wanted her to relax and go to sleep. He went on to say he got confused while making the smoothies, and "somehow I mixed up the damn smoothies and [T.F.] wound up with yours! Somehow it got into all the smoothies...even mine, it was all in the same blender." In the letter he explained that after the girls had gone to sleep, he heard noises upstairs and went to investigate and to collect the empty smoothie cups. Carrying a flashlight, he entered the girls' room and discovered that T.F.'s pants were off and she was masturbating. He claims he put T.F.'s pants back over her feet, and then she pulled them up herself. Finally, he wrote that he knelt down to tell her that he would not tell anyone what had happened, and T.F. tried to kiss him. He then left the room.
Before trial, Kolbias moved to suppress the letter as a confidential communication between husband and wife protected by Vermont Rule of Evidence 504(b). The trial court disagreed (as did the Supreme Court of Vermont on appeal), "holding that while the letter would normally be protected by the marital privilege, the exceptions found in Vermont Rules of Evidence 504(d)(2), (3), and (4) removed the letter from this privilege." Specifically, Vermont Rule of Evidence 504(d) provides that
There is no privilege under this rule in a proceeding in which one spouse is charged with a crime, or alleged to have committed a tort, against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person in the course of committing a crime against any of them. There is also no privilege under this rule in any other civil proceeding in which the spouses are adverse parties; or, in the discretion of the court, in any other proceeding where the interests of a child of either are involved.
This language shows the broadness of Vermont's exception. Now, Kolbias was charged with a crime against his daughter, so Rule 504(d)(2) applied. But even if he were not charged with this crime, Rule 504(d)(4) applied because he was charged with a crime against a third person -- T.F. -- in the course of committing a crime against his wife and/or daughter. I'm not sure why the court cited Rule 504(d)(3) because it seems a stretch to claim that T.F. was "residing" with Kolbias, but you can see the utility of 504(d)(3) in cases in which the victim resides with the defendant but is not a relative (e.g., if T.F. were staying at the house for the summer).