EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, July 16, 2022

Eighth Circuit Finds Third Person/Spousal-Victim Exception to Marital Privilege Applies in Felony Murder Case

The federal confidential marital communications privilege protects against the admission of confidential marital communications between spouses, much like the attorney-client privilege protects against the admission of confidential communications between a client and her attorney. But, as with the attorney-client privilege, the confidential marital communications privilege has exceptions, like the one applied in United States v. White Owl, 2022 WL 2431600 (8th Cir. 2022).

In White Owl, Donovan White Owl was charged in the district court with arson and felony murder after allegedly starting a cabin fire that killed an occupant of the dwelling. Specifically,

On the night of April 3-4, 2019, White Owl and [his wife Tera] Cooke were at a bonfire with friends Cody Serdahl and Winnifred Smith. All four were living in a cabin in Mandaree, North Dakota, that belonged to Serdahl's mother. The bonfire was in the yard outside the dwelling.

During the gathering, White Owl started to yell at Cooke during an argument. Serdahl intervened and told White Owl to stop yelling. After that exchange, White Owl concluded that Cooke was having an affair with Serdahl. Cooke left the bonfire and hid from White Owl in the back of their Chevrolet Tahoe vehicle. Shortly thereafter, the cabin burned down, and Smith was killed in the fire.

White Owl entered the Tahoe and drove away without realizing that Cooke was hiding in the back. White Owl eventually discovered Cooke when he stopped for gas in Circle, Montana, about 150 miles from the cabin.

Some time thereafter, when the two were alone together, White Owl made incriminating statements to Cooke. White Owl said that he thought she was inside the cabin after their argument at the bonfire, so he decided to pour gasoline through the bedrooms, kitchen, stairs, and deck of the cabin. He told Cooke that he poured the gasoline because he believed that she was hiding in the cabin. He said that he took this action because he thought Cooke was sleeping with Serdahl.

In finding that the confidential marital communications privilege did not apply to White Owl's statements, the Eighth Circuit noted that there is an exception to this privilege "where a spouse is charged with a crime against a third person committed in the course of committing a crime against the other spouse (the third-person/spousal-victim exception)." The court then found that this exception was triggered, concluding that

White Owl is charged with arson and felony murder against third persons, Serdahl and Smith. White Owl allegedly committed these charged offenses in the course of committing an offense against his wife, Cooke. The district court found that White Owl told Cooke that he poured gasoline in and around the cabin, and that White Owl admitted he was trying to kill Cooke.



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