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November 3, 1992


Appeals from the Superior Court of the District of Columbia (Hon. John H. Suda, Trial Judge)

Before Rogers, Chief Judge, Steadman, Associate Judge, and Belson, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Michael Johnson appeals his convictions of involuntary manslaughter and cruelty to a child, D.C. Code §§ 22-2405, -901 (1981), on five principal grounds. *fn1 He contends that the trial court (1) improperly allowed the government to introduce confidential communications between appellant and his common-law wife in violation of the spousal privilege in D.C. Code § 14-306(b) (1981); (2) erred by denying his motion to suppress his oral and written statements to the police; and (3) committed plain error in allowing the constructive amendment of the indictment.

Appellant also contends that the trial Judge erred by denying his motion pursuant to D.C. Code § 23-110 (1981) on the ground that he received ineffective assistance of trial counsel and by denying a full and fair hearing on the motion. We find no error in the admission of appellant's statements to his wife under D.C. Code § 14-306(b), nor in the admission of his statements to the police in the absence of advice of Miranda *fn2 rights. Because appellant's other contentions are unpersuasive, we affirm.


The charges in this case stemmed from the death of the eight-month old daughter of appellant and his common-law wife, Alecia Medley. On July 6, 1987, at approximately 7:30 p.m., Alecia Medley returned home from work and noticed that the baby had a bruise on her right temple. Ms. Medley testified that when she asked appellant about the bruise he told her that the baby had fallen off the bed. Ms. Medley left the apartment approximately thirty minutes later, and she did not return home until around 2:00 a.m. Appellant complained that the baby had been crying all night. Ms. Medley fed the baby and changed her diaper; she also noticed a scratch behind one of the baby's ears. When Ms. Medley asked appellant about the scratch, he again told her that the baby had fallen off the bed.

The baby began to cry again when Ms. Medley put her back into her crib. According to Ms. Medley, appellant told the baby to "shut her mouth," but the baby kept crying. Appellant then picked up a belt and took the baby into the bathroom. Ms. Medley testified that she heard "smacks" coming from the bathroom for approximately two to three minutes. Appellant then brought the baby out of the bathroom and returned her to her crib, warning Ms. Medley not to pick up the baby but to "let her holler." After appellant fell asleep, Ms. Medley gave the baby a bottle of water and then went to sleep.

At approximately 10:30 that morning, July 7, 1987, appellant and Ms. Medley realized that the baby was not breathing, and they took her to a nearby firehouse. A paramedic attempted to revive the baby at the firehouse; when these efforts failed, the child was transported by ambulance to Children's Hospital. *fn3 The paramedics transporting the baby noticed that she had "numerous bruises from head to toe on all parts of her body," and that her arms and legs were stiff. *fn4 Efforts to resuscitate the baby at the hospital also failed, and she was pronounced dead at 11:18 a.m.

The government offered into evidence expert medical evidence that the baby's death was due to a blunt force hitting her head, and could not have been caused by beatings with a belt. *fn5 The government also offered into evidence several statements by appellant, specifically, three oral statements to Ms. Medley, and oral and written statements to the police. In his statements to Ms. Medley, appellant indicated that he thought he would be arrested for causing the baby's injuries. In his statements to the police he admitted that he had taken the baby into the bathroom a second time at 5:00 a.m., and claimed that the baby had fallen twice as she tried to stand up in the bathroom, and that each time she had hit her head on the bathtub. *fn6


Appellant contends that the trial Judge erred by allowing the government to introduce into evidence confidential communications between appellant and his common-law wife, Alecia Medley. *fn7 Although Ms. Medley testified regarding a number of statements allegedly made to her by appellant, appellant confines his objection in this appeal to three principal communications: (1) he told Ms. Medley before he beat the baby that she "better not pick [the baby] up" because appellant was raising the child in his own way, (2) he told Ms. Medley on the way to the hospital that "they might lock him up for this," and (3) he told Ms. Medley to go to defense counsel and give a statement so "that I wouldn't go to trial and that it would all be dropped and it would be over with."


Assertions of marital testimonial privilege are governed by D.C. Code § 14-306, which provides:

(a) In civil and criminal proceedings, a husband or his wife is competent but not compellable to testify for or against the other.

(b) In civil and criminal proceedings, a husband or his wife is not competent to testify as to any confidential communications made by one to the other during the marriage.

This statutory marital privilege is applicable to common law marriages, which are recognized by the District of Columbia. See Bowler v. United States, 480 A.2d 678, 685 (D.C. 1984). Because Ms. Medley testified voluntarily, subsection (a) does not apply. Thus, the issue is whether the trial Judge properly admitted Ms. Medley's testimony regarding confidential communications made to her by appellant.

Before Ms. Medley testified, appellant objected to any testimony she might give that would fall within § 14-306(b). After hearing extensive argument on the issue, the Judge ruled that the communications were admissible. In reaching this Conclusion, the trial Judge noted that there were explicit statutory exceptions making the § 14-306 privilege waiveable in child neglect proceedings, *fn8 in proceedings regarding intrafamily offenses, *fn9 and in adjudicatory hearings to terminate the parent-child relationship. *fn10 Although no analogous statutory exception existed for criminal proceedings involving child abuse, the trial Judge reasoned that:

Frankly the issue in a neglect proceeding particularly when those issues concern abuse, physical abuse of a child cannot be any different than when they are in a criminal case and the statute explicitly sets aside the marital privilege in those particular cases.

In addition, the Judge noted that other exceptions had been recognized by the Supreme Court so that "one spouse is permitted to testify in regard to communications of assault against him or her by the other spouse." *fn11 The Judge concluded that § 14-306 did not bar testimony from Ms. Medley about confidential communications from appellant, stating:

I am impressed with the proposition that when it comes to assault on a spouse in a marriage the Court has . . . decided that that matter is not barred by the marital privilege and therefore may come in . . . as a communication in spite of the marital privilege.

I find very little if any difference between communications concerning an assault by one spouse on another and communications concerning an assault on a child of both the witness and the defendant in a criminal case particularly . . . when the age of the child is beneath oral communication. * * * I am persuaded . . . that the present state of the law in the District of Columbia is that the marital privilege does not apply to communications in regard to children of both the witness and the defendant particularly when those children are under the age of oral communication themselves.


Appellant contends that the trial Judge, in ruling that the marital privilege did not bar Ms. Medley's testimony about her confidential communications with appellant, "created a judicially-crafted exception to the spousal privilege in D.C. Code § 14-306 (b)" that is unsupported by precedent. Appellant relies on the fact that the legislature has explicitly eliminated the marital privilege in only three instances. See D.C. Code § 2-1355 (proceedings involving neglected children), (supra) note 8, § 16-1005 (b) (proceedings concerning intrafamily offenses), (supra) , note 9, and § 16-2359 (e) (termination of parental rights of certain neglected children), (supra) note 10. Therefore, appellant argues, the statutory scheme encompassing spousal testimonial privileges "clearly show the legislative intent to waive the spousal privilege in Family Division proceedings where the welfare of the child is the primary concern, but to retain the spousal privilege in other civil and criminal proceedings," especially in criminal trials, which emphasize protection of the rights of the accused. In essence, appellant views the legislature's retention of the marital privilege in civil and criminal proceedings outside of the Family Division as a conscious "judgment[] about the scope and extent of the marital privilege." *fn12 Consequently, he maintains that this court can uphold the trial Judge's ruling admitting appellant's statements to his wife only if it finds that "the legislature acted in an unconstitutionally arbitrary or irrational manner in delineating the applicability of the marital privilege."

In response, the government maintains that the court has consistently looked to the common law in interpreting the scope of the marital privilege in § 14-306, and points to our decision in Morgan v. United States, 363 A.2d 999, 1004 (D.C. 1976), cert. denied, 431 U.S. 919, 53 L. Ed. 2d 231, 97 S. Ct. 2187 (1977), in which the court relied on the necessity exception at common law to the confidential communications privilege for crimes committed by the husband against the wife. Further, the government maintains that when the Congress and the Council of the District of Columbia enacted the statutory provisions eliminating the marital privilege, they were "dealing with a discrete area of the law -- civil protection orders, child neglect proceedings, and the termination of parental rights -- and how the husband-wife privilege should intersect with that area." Thus, in the government's view, the legislature had no intention of precluding development of the common law governing the applicability of the marital privilege to criminal prosecutions when it enacted legislation waiving the marital privilege in Family Division proceedings.

Although the issue is not without difficulty, we conclude that the trial Judge's interpretation of the proper scope of the confidential communications privilege under D.C. Code § 14-306 (b) is consistent with the purpose of the marital privilege and the interpretations of it by this court, and not, as appellant argues, disruptive of the statutes of the District of Columbia. The marital privilege that existed in the common law was enacted into law by Congress when it codified the District of Columbia Code in 1901. See Halback v. Hill, 49 App. D.C. 127, 130, 261 F. 1007, 1010 (1919). Since then the court has continued to look to the common law to interpret the marital privilege under § 14-306. While the local legislatures (Congress and the Council of the District of Columbia) have spoken on the issue of the marital privilege from time to time, each time has involved a particularized, well-delineated subject area, and there is nothing in the legislative history of the three provisions which create exceptions to the marital privilege to suggest that such legislation was intended to address broader issues in the .


The marital privilege in the common law

sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife.

Trammel, supra note 11, 445 U.S. at 44. See Halback v. Hill, 49 App. D.C. 127, 130, 261 F. 1007, 1010 (1919). The law now recognizes both the accused's right to testify in his own behalf and the separate legal existence of the wife from the husband. See, e.g., U.S. CONST., Amend. V; Rock v. Arkansas, 483 U.S. 44, 49, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987); D.C. Code § 30-201 (1981) (married status does not impair woman's rights and responsibilities); Chesser v. Troiano, 61 A.2d 629, 631 (D.C. 1948) ("relationship of husband and wife does not per se establish a principal and agent relationship"). Despite much criticism of the privilege it has survived, although over time exceptions to the privilege have been written into the law by the courts and the legislature. See Trammel, supra ...

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