United States v. Massey

Quinn, Chief Judge

(dissenting):

I have long advocated and, therefore, have no quarrel with the general exclusionary rule advanced in the principal opinion. See my dissent in United States v Leach, 7 USCMA 388 , 22 CMR 178 . But I disagree emphatically with the application of the rule to this case.

The Manual for Courts-Martial recognizes that the exclusionary rule does not apply if the witness-spouse is “the individual or one of the individuals injured by the offense.” An injury may be suffered directly or indirectly. The Manual is not clear as to, and I need not attempt to explore, the extent to which an injury to a third person by the defendant-spouse is an indirect injury to the witness-spouse so as to deprive the defendant of the right to invoke the testimonial privilege. Unmistakably, however, the Manual contemplates that an injury perpetrated by the defendant-spouse upon a child of the marriage is an injury to the witness-spouse. Thus, included in the enumeration of examples of offenses to which the exclusionary rule does not apply are “abandonment of wife or children” and the “failure to support them.” Manual for Courts-Martial, United States, 1951, paragraph 148e. The Supreme Court of the United States has similarly recognized the position of the child in the formulation of the spousal privilege. In delineating the reason for the rule, the Court did not confine itself to the relationship between husband and wife. On the contrary, it observed that the privilege is predicated upon a desire to “foster family peace” which benefits “husband, wife and children.” Hawkins v United States, 358 US 74, 77 , 3 L ed 2d 125, 79 S Ct 136 (1958). (Emphasis supplied.)

Family peace is as much disturbed when a spouse injures a child as when one spouse injures the other. To use the illustration of the Manual, abandonment of a child by a spouse results in consequential injury to the other by imposing sole responsibility for the care, upbringing, and support of the child, in place of the shared responsibility of both parents in the united household. In like manner, when one parent strips the skin from a child by a brutal and unjustified assault, the consequential injury to the interests of the innocent parent may be no less than the harm suffered in a direct assault upon the person of that spouse. A number of State courts have so held.

In O’Loughlin v People, 90 Colo 368, 10 P2d 543, 546, 547 (1932), the wife was tried for the murder of her child. Under a statute making the exclusionary rule inapplicable when the offense is “committed by one spouse against the other,” the Colorado Supreme Court held the husband could testify against the wife. In pertinent part, it said: “When a spouse is charged with a crime involving a violation of the marital status such as the heinous crime here disclosed, the reason for the rule and its protection are annihilated. . . . [I] t must necessarily and logically follow that the murder by one spouse of the other’s child is also a crime committed by one spouse against the other.” The Wyoming Supreme Court has held that a wife can testify against her husband in a prosecution for the rape of their minor daughter. Chamberlain v State, 348 P2d 280 (1960). In State v Kollenborn, 304 SW2d 855 (1957), the Missouri Supreme Court sustained a trial court ruling admitting the tosti- *284 mony of the wife against the defendant in a prosecution for mistreatment of their minor child. Part of the Court’s opinion merits quotation:

. . We hold that every reason of public policy and true necessity which permits the wife to so testify in the event of a personal injury to herself, applies equally here. . . . What is not good sense should not be the law.” [Id., at page 864.]

There is yet another reason to sustain the wife’s testimony in this case. In United States v Moore, 14 USCMA 636 , 641, 34 CMR 416 , we pointed out that the privilege of the defendant-spouse to exclude the testimony of the witness-spouse is based on the principle that “public policy favors the maintenance of the family relationship.” When that relationship has been so far disrupted that there is no reasonable possibility for continuation of a family union, application of the privilege cannot maintain the family. Adherence to the rule in such a case does not serve the public interest; it stultifies it. We acknowledged as much in the Moore ease by observing that “enforcement of the public policy for its preservation . . . [may] no longer [be] justified,” if the marriage has deteriorated beyond the point of regenesis. Id., at page 642.

Judge Learned Hand has argued that short of actual divorce it cannot be said that a “marriage . . . [is] so far wrecked that there is nothing to save.” United States v Walker, 176 F2d 564, 668 (CA 2d Cir) (1949). His view did not go unchallenged. It was rejected by Judge Clark in the Walker case; and it has been rejected in at least two Federal district courts. In United States v Graham, 87 F Supp 237, 241 (1949), the United States District Court for the Eastern District of Michigan held it could “penetrate the fiction that there was any marital status to preserve,” to allow the wife to testify against the husband in a prosecution for transporting stolen money in interstate commerce. See also United States v Ryno, 130 F Supp 685 (SD Cal) (1955), affirmed on other grounds, 232 F2d 581, 584 (CA 10th Cir) (1956). The Supreme Court of the United States has also exploded the fiction of a legal marriage when the evidence showed that the relationship of husband and wife did not exist in fact. Lutwak v United States, 344 US 604 , 97 L ed 593, 73 S Ct 481 (1953). In addition, the basis for Judge Hand’s conclusion, namely, that an inquiry into the marital relationship would “introduce a collateral inquiry likely to complicate the trial seriously,” is not well-founded. Many times in a criminal case the trial judge may be called upon to hold a separate hearing on a defense objection to the admissibility of evidence. Such hearing is standard, for example, on an objection to the admissibility of evidence on the ground of illegal search and seizure. See United States v Weaver, 9 USCMA 13, 18 , 25 CMR 275 . It is commonplace as to the preliminary showing of the voluntariness of a confession. See United States v Dicario, 8 USCMA 353 , 24 CMR 163 . A substantially similar preliminary hearing is also required to establish the competency of a person to be a witness. See United States v Hurt, 9 USCMA 735, 776 , 27 CMR 3 . No difficulty is experienced in these areas, and I see no cogent reason suggesting greater complication and greater difficulty because the preliminary issue is the nature of the relationship between the witness and the accused. Certainly, trial judges in the Federal courts who have considered the specific question have had no apparent difficulty. United States v Graham, supra; United States v Ryno, supra.

Rules of evidence should be interpreted “in the light of reason and experience.” Rule 26, Federal Rules of Criminal Procedure; Funk v United States, 290 US 371 , 78 L ed 369, 54 S Ct 212 (1933). Divorce ends the testimonial privilege because there is then no longer any family to preserve. Yet, we know that some divorced couples remarry. That bare possibility, however, does not justify application of the rule to exclude the testimony of a divorced witness-spouse. It is barely possible that a genuine family relationship may be recreated from the lifeless ashes of a dead marriage. The refusal of the witness-spouse to testify may *285 perhaps indicate that, if given a chance, the possibility might ripen into fact. See United States v Wooldridge, 10 USCMA 510 , 28 CMR 76 ; cf. United States v Moore, supra. But if the witness-spouse is willing, even eager, to testify, the possibility of reestablishing the family relationship is no greater than the possibility of the remarriage of a divorced couple. Reason and experience then compel the conclusion that the family union is as irreparably ruptured as if the parties had a legal divorce. I agree fully with District Judge Levin in the Graham case, supra, at page 241, that when the surrounding circumstances demonstrate the marriage is extant in law but a “fiction” in fact, the court should “penetrate” the fiction, and allow one spouse to testify against the other.

The evidence in this case leaves no doubt that the marital relationship between the accused and his wife was terminated in fact. Their differences spanned a number of years. Despite recourse to the chaplain, their relationship steadily deteriorated. After filing a complaint against the accused’s conduct, Mrs. Massey and the children left the marital home. At that time she was pregnant, but when the child was born she refused to tell the accused. The record demonstrates that, for all practical purposes, there was no possible likelihood of any viable family relationship between the accused and his wife. I would, therefore, sustain the law officer’s ruling admitting her testimony.