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Brown v. State6/9/2000
mately held Ms. Brown's disclosure of petitioner's confession admissible on the authority of Harris, supra, 37 Md. App. 180, 376 A.2d 1144. In that case, the Court of Special Appeals drew from some language used in Gutridge, supra, 236 Md. 514, 204 A.2d 557, a conclusion that the privilege embodied in § 9-105 was "inapplicable" when the confidential communication "constitutes a threat or crime against the other spouse." Harris, supra, 37 Md. App. at 184, 376 A.2d at 1146. Relying on its decision in Coleman v. State, 35 Md. App. 208, 370 A.2d 174 (1977), which we reversed in Coleman, supra, 281 Md. 538, 380 A.2d 49, the Harris court concluded that when the communication in question runs contrary to the promotion of marital harmony and tranquility, the basis for the statute no longer prevails and, for that reason, the statute is inapplicable. In overturning the Court of Special Appeals decision in Coleman, we expressly rejected that rationale. Coleman, supra, 281 Md. at 544-45, 380 A.2d at 53-54.
The Court of Special Appeals, in this case, did not rely on Harris, and for good reason. Even to the extent that Harris may be correct in its holding that a communication that, itself, constitutes a crime or a threat is not subject to the privilege, the confession made by petitioner to his wife did not, itself, constitute either a crime or a threat to her and was not necessarily contrary to the promotion of marital harmony. Harris serves as no authority for the admissibility of Ms. Brown's disclosure. The intermediate appellate court relied instead upon a Colorado case, Cummings v. People, 785 P.2d 920 (Colo. 1990) for the proposition that the assertion of a "my spouse did it" defense constitutes a waiver of the privilege. That, as noted, is the position now asserted by the State.
Because Cummings relied, in part, on a California case, People v. Worthington, 38 Cal. App.3d 359 (1974), we shall begin with Worthington. The defendant was convicted of murdering two people - a mother and her daughter - with whom he and his wife had stayed for a time and with whom they had developed an antipathy. On appeal, he complained that the trial court allowed his wife to testify about his confession to her that he had killed the victims. That testimony, he argued, was inadmissible under the California equivalent to § 9-105 (Evidence Code, § 980), affording a spousal privilege to refuse to disclose and prevent another from disclosing a communication made in confidence during the marriage. Before the court allowed the wife to testify, a detective testified that the defendant had informed him that the defendant's wife killed the two victims and had described in some detail how the killings took place -an account that the appellate court regarded as a mirror image of the wife's ultimate testimony, but with their roles reversed. The privilege afforded by § 980 was expressly made subject to another statute (Evidence Code. § 912) declaring the privilege waived "if any holder of the privilege, without coercion, has disclosed a significant part of the communication." Worthington, 38 Cal. App.3d at 365.
The appellate court affirmed the decision to allow the wife's testimony. It found "incredible" that the "defendant could fail to realize that in disclosing what he claimed the wife had told him, a confession of murder, he was inviting a response from the wife as to her version of the conversation," adding that "it would be the ultimate irony if one spouse can, under the guise of `squealing' on the other, silence the other's response to his charges." Id. at 365 (Emphasis added). Furthermore, the court declared, "there was an abundance of evidence before the trial court upon which it could, as it did, make a finding that def
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