People v. Simpson

MR. JUSTICE GOLDENHERSH, also dissenting:

The rationale of the majority opinion holding the testimony of the assistant State’s Attorney admissible is that defendant’s wife’s “police station statement was admissible to explain the bare words of defendant’s public admission, ‘Yes.’ Her statement gave meaning to the defendant’s otherwise incomprehensible statement above, and merely revealed what the defendant thereby admitted to having said.” (68 Ill. 2d at 282.) The statute proscribes testimony of any communication or admission made by either party to the marriage to the other, and the device used here should not serve to render a wife’s statement admissible under the guise of explaining an “otherwise incomprehensible statement.” The authorities cited in the opinion do not support the majority’s position, and Gannon v. People, 127 Ill. 507 , cited in support of the specific holding, is so clearly distinguishable that no further comment is required.

The majority, relying on McCormick (McCormick, Evidence sec. 83, at 170 (2d ed. 1972)), holds that defendant’s so-called admission was a voluntary revelation of a material part of the communication and was therefore a waiver. “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” (Johnson v. Zerbst, 304 U.S. 458, 464 , 82 L. Ed. 1461, 1466 , 58 S. Ct. 1019, 1023 .) I fail to see how on this record defendant’s response to a statement elicited by a deputy sheriff in the presence of an assistant State’s Attorney who should have been aware of defendant’s statutory privilege can be construed to be a voluntary waiver of that privilege.

Assuming, arguendo, that the testimony were in some manner rendered admissible, it should nevertheless have been excluded. There are many situations in which the admissibility of evidence depends upon whether its probative value outweighs its prejudicial effect to the defendant. (People v. Lefler, 38 Ill. 2d 216 ; People v. DeHoyos, 64 Ill. 2d. 128.) In People v. Jordan, 292 Ill. 514 , testimony concerning a statement by the defendant’s wife was admitted on the ground that the statement was made in his presence and that the defendant’s silence at the time was an express or implied ratification of the statement. In reversing the judgment the court said: “The fatal objection to this evidence is that it brought before the jury a statement of a witness who was not competent to testify to the fact and in defiance of an express statutory provision. The defendant’s wife was neither competent to testify in his behalf nor against him, and when offered as a witness by the defendant she was properly excluded upon the objection of the People. (Miner v. People, 58 Ill. 59 ; Gillespie v. People, 176 id. 238.) Inevitably the jury would take the testimony that she made the statement as evidence of the fact.” 292 Ill. 514, 517 .

The admission of the assistant State’s Attorney’s testimony was, in my opinion, so prejudicial to the defendant as to require reversal and remandment for a new trial.