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Brown v. State6/9/2000
Bell, C.J., and Cathell, J., concur
After a jury trial in the Circuit Court for Baltimore City, petitioner was convicted of first degree murder, along with various handgun offenses, for which he was sentenced to life imprisonment without the possibility of parole. The victim was petitioner's girlfriend, Makea Stewart. One of the witnesses who testified against petitioner was his wife, Jennifer Sellers Brown, and, in the course of her testimony, she stated that, on the night of the murder, petitioner confessed to her that he had killed Ms. Stewart.
Petitioner complains that that testimony was inadmissible under Maryland Code, § 9-105 of the Courts and Judicial Proceedings Article, (CJP), which provides that " ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage." Correctly regarding his inculpatory statement to Ms. Brown as a confidential communication made during the marriage, petitioner contends that his wife was, indeed, "incompetent" to testify regarding it. Despite the language of the statute, the State views § 9-105 not as rendering a spouse "incompetent," but as providing petitioner with a privilege to preclude testimony regarding confidential marital communications, a privilege that can be waived. In this case, it argues, the privilege was waived by petitioner's contention, expressed at different times throughout the trial, that his wife was, in fact, the killer - that she killed Ms. Stewart out of jealousy. The State urges that, when a defendant asserts a "my spouse did it" defense, he or she waives any privilege under the statute to prevent the spouse from relating otherwise confidential marital communications in response to that accusation.
In affirming petitioner's convictions, the Court of Special Appeals, in an unreported opinion, accepted the State's argument. Over a dissent, it held flatly that § 9-105 provides a privilege, not an actual incompetence, and that the privilege "is waived by the criminal defendants who, either personally or through counsel, present a `my spouse did it' theory of defense." We granted certiorari to review that conclusion. We shall hold that (1) § 9-105 does not render a spouse "incompetent" to testify regarding confidential marital communications but rather establishes a privilege on the part of the person making the communication to preclude testimony by the person's spouse that discloses the communication, (2) the privilege may be waived by the person, but (3) it was not waived in this case. Accordingly, we shall reverse the judgment of the Court of Special Appeals.
BACKGROUND
Makea Stewart was found dead around 3:30 a.m. on September 10, 1995 in an alleyway behind 3326 Gwynns Falls Parkway, in Baltimore City. She had been shot eight times with a .380 caliber handgun that was owned by petitioner and was later recovered from his car. Petitioner's fingerprints were found on the magazine of the weapon. A witness, Jerry Manns, reported hearing gunshots from his kitchen window at approximately the time of Ms. Stewart's reported death. From his window, he saw an African-American male in his twenties leave the alley and drive off in a small two-door car with a malfunctioning muffler. He saw the same man return a short time later with a gun in his hand. Manns heard a single gunshot and then saw the man get back into his car and leave. It was later established that petitioner, an African-American male, drove a two-door Mazda with a faulty muffler. Near Ms. Stewart's body Detective Barlow discovered her pager, which showed that several calls had been made to the pager from a cellular phone later found in petitioner's possession.
Ms. St
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