State v. Yolanda Terry and Teron Savoy
94 A.3d 882
N.J.2014Background
- In 2010 Ocean County investigators wiretapped two cell phones used by Teron Savoy while investigating a suspected drug-trafficking network; intercepts included 2–3 phone calls and 5 text messages between Savoy and his wife, Yolanda Terry.
- Intercepted communications included requests to pick up money and to retrieve items from a vehicle from which police seized heroin and cash; a subsequent search of the vehicle uncovered additional heroin.
- Savoy and Terry were indicted on conspiracy and related drug charges; defendants moved to exclude the spouse-to-spouse calls and texts under the marital communications privilege (N.J.R.E. 509).
- Trial court admitted the interceptions, reasoning that a third-party eavesdropper (law enforcement) could disclose what it heard; the Appellate Division reversed, holding the Wiretap Act preserves privileges and that a crime-fraud exception should be considered but must be adopted via the Evidence Act procedures.
- The New Jersey Supreme Court affirmed the Appellate Division: (1) Section 11 of the Wiretap Act prevents a court-authorized wiretap from stripping otherwise-privileged marital communications of their privilege; (2) the Court proposes (but does not self-adopt) a crime-fraud exception to Rule 509 and transmits it to the Legislature under the Evidence Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether marital communications intercepted by a court-authorized wiretap lose privilege and may be introduced by the State | Wiretap does not change that the privilege is personal to spouses; a third party (investigator) may testify about overheard communications | Privileged confidential spousal communications remain protected; the Wiretap Act’s §11 preserves privileges even if intercepted | Held: §11 preserves privilege; a court-authorized wiretap does not render otherwise-privileged marital communications admissible |
| Whether New Jersey should recognize a crime-fraud exception to the marital communications privilege | Agreed that exception is desirable for future cases (State urged adoption) | Defendants argued no exception should apply here and, if adopted, Evidence Act procedures must be followed; factual participation not shown | Held: Court agrees a crime-fraud exception should exist but, because it is a fundamental change, the Court proposes the exception and sends it to the Legislature under the Evidence Act rather than adopting it unilaterally |
| Scope and formulation of a crime-fraud exception | Exception should cover communications in furtherance of ongoing or future crimes where spouses were joint participants at the time | Defendants contest applicability to these facts and raise ex post facto concerns if applied retroactively | Held: Court proposes exception limited to communications relating to ongoing or future crime/fraud in which both spouses jointly participated; application to these defendants left to the trial court if Legislature approves rule change |
Key Cases Cited
- State v. Szemple, 135 N.J. 406 (1994) (discusses purpose and scope of the marital communications privilege)
- State v. Terry, 430 N.J. Super. 587 (App. Div. 2013) (Appellate Division opinion reversing trial court and recommending a crime-fraud exception)
- State v. D.R., 109 N.J. 348 (1988) (explains when Court should follow Evidence Act procedures for major changes to evidence rules)
- State v. Byrd, 198 N.J. 319 (2009) (framework for when evidentiary rule changes should be pursued via the Evidence Act)
- State v. Mauti, 208 N.J. 519 (2012) (addresses limits on judicial creation of new spousal-privilege exceptions)