Brown v. State6/9/2000
Court nor the Court of Special Appeals found a waiver on that basis. Nor shall we. Petitioner did eventually raise the statutory privilege, which was entertained and ruled upon by the court. Nor, as we have indicated, did petitioner himself disclose any part of the conversation with his wife prior to her testimony. There was no waiver.
JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THAT COURT FOR NEW TRIAL; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.
Concurring Opinion by Bell, C.J.:
The majority holds that Maryland Code (1973, 1998 Repl. Vol.) § 9-105 of the Courts and Judicial Proceedings Article codifies a confidential marital communications privilege, under which a spouse, or former spouse may not disclose, or be compelled to disclose, over objection and absent a waiver, any confidential marital communications. ___ Md. ___, ___, ___ A.2d ___, ___ (2000) [slip op. at 25]. It holds, nevertheless, that the "privilege" was not waived in this case and, thus, reverses the petitioner's conviction. I agree with that result. Accordingly, I concur in the result. We have arrived at the same result by different routes, however; indeed, in reaching my conclusion, I embrace a rationale that the majority expressly rejects: § 9-105 is a competency statute, rather than one setting forth a privilege. Whether I or the majority is correct involves statutory interpretation.
Section 9-105 is broadly, but clearly, written. It is well settled that the interpretative process, the purpose of which is to ascertain and effectuate the intent of the legislature, Parrison v. State, 335 Md. 554, 559, 644 A.2d 537, 539 (1994), begins, and, when the words of the statute are clear and unambiguous, according to their ordinary and commonly understood meaning, see Chesapeake and Potomac Telephone Co. of Maryland v. Director of Finance for Mayor and City Council of Baltimore, 343 Md. 567, 578, 683 A.2d 512, 517 (1996); Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995); Montgomery County v. Buckman, 333 Md. 516, 523, 636 A.2d 448, 451 (1994), ordinarily ends, with the words of the statute. Farris v. State, 351 Md. 24, 29, 716 A.2d 237, 240 (1998). It is true, of course, that the legislative history of the enactment may be taken into account, but only to confirm, not to contradict, the result derived from according the words of the statute their commonly understood meaning. See Coleman v. State, 281 Md. 538, 546, 380 A.2d 49, 54 (1977).
Headed "Testimony by Spouses - Confidential communications occurring during marriage," § 9-105 provides that, "One spouse is not competent to disclose any confidential communications between the spouses occurring during their marriage." Black's Law Dictionary 1596 (7th ed. 1999) defines a "competent witness" as "a witness who is legally qualified to testify," and, by extension, based on the definition of "incompetency" - "the lack of legal ability in some respect, especially to testify," id. at 768, an incompetent witness is one legally disqualified to testify. Section 9-105 thus clearly and unambiguously declares one spouse unable to testify against the other as to confidential marital communications. The words used leave no doubt as to the Legislature's intention; they provide no basis for construing the statute to mean that a spouse has a privilege not to testify as to confidential marital discussions, a privilege that may be waived.
The logic of this interpretation is underscored and confirmed when § 9-105 is contrasted with § 9-106. That latter sect
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