*1 App 670 PEOPLE v VIEAU 18, 1983, Rapids.— August at Grand No. 56409. Submitted Docket 20, appeal applied August 1984. to for. Leave Decided murder, first-degree Cheboygan W. was convicted of Robert Vieau trial, Swallow, Court, Joseph J. At defendant’s P. Circuit regarding killing. The victim wife was allowed living at the time. was a man with whom defendant’s was victim, wife, injured shooting shot his After intent to murder was with assault with for he separately. appealed, alleging wife and tried Defendant was testimony was alia of his wife’s error inter that admission spousal privilege. precluded by regarding was the statute Held: testimony holding the wife’s 1. The court erred in trial precedent. case was reason of federal admissible governed by
privilege Michigan statute. Under is however, properly exception, testimony was admitted be- party part against of the same cause crime the third assaulted, criminal as in which the wife was transaction grew injury done” one and thus "out of a spouse applicable whether the other. against testifying spouse party crimes the third together. tried are are merit. 2. Defendant’s other of error without claims Affirmed. Dodge, J., that the dissented. He would hold statutory exception narrowly and should be construed precludes wife’s because the that it admission of the party killing of third did not state’s cause action for the "grow way the assault on or in some result from of’ for a new trial. He would reverse and remand wife. References for Points in Headnotes 2d, 81 Am Jur Witnesses 111.
[1] [2, § 2d, 81 Am Jur Witnesses 126. § 3] Competency spouse testify against other in party fact that offense offense spouse third as affected in same transaction. ALR3d involved v Vieau
Opinion of the Court Spousal Immunity. — — 1. Criminal Law Evidence admissibility person’s testimony against of a his or her statute; generally, is controlled such *2 inadmissible, subject specified excep- but the rule is to certain 27A.2162). (MCL600.2162; tions MSA Spousal Immunity — — — 2. Criminal Law Evidence Crime Party. Against Third person may testify against spouse A his or her in a case "where grows personal wrong injury the cause of action out of a other”; exception spousal done one to the this to the rule of immunity applicable of a crime committed person part where it is of the same criminal testifying spouse, transaction as a crime committed regardless of whether the crimes the third and (MCL spouse together 600.2162; are tried 27A.2162). MSA Spousal Immunity — — — 3. Criminal Law Evidence Crime Against Party. Third testify against A wife should not be allowed to her husband regarding killing party, though the husband’s of a third even the husband also assaulted his wife and was for that murder; crime as well as the the state’s cause of action for the party "grow injury murder of the third did not of” done meaning to the wife within the immunity statute which allows a where the "cause of action (MCL 27A.2162). 600.2162; one to the other” MSA Kelley, Attorney General, Frank J. Louis J. Joseph Caruso, General, Kwiatkowski, Solicitor P. Prosecuting Attorney, Nickerson, and Michael A. Attorney people. General, Assistant for the Appellate (by State Defender Richard B. Gins- berg), for defendant. Opinion of the Court Danhof, C.J., Mackenzie
Before: Dodge,* JJ. trial, was defendant jury After a
Per Curiam. murder, first-degree premeditated convicted He was sentenced 750.316; MSA 28.548. MCL right. as of appeals imprisonment life Gary murder of charged with Defendant Vieau, wife, testified Defendant’s Williams. the time of at living with Williams that she killing, night before offense. alleged in Macki- Dixie Tavern at the working began she several the tavern visited Defendant City. naw talk to her. On in order to evening times into the came again killing, night of wife left or six times. When five tavern tires on the one of the work, she discovered flat. All of Williams was by Gary to her car loaned *3 the car were also in the trunk of tires spare time and made a at that Defendant walked flat. opin- wife’s tire. It was his the flat remark about made the manner in which ion from the then the tire. She that he had flattened remark agreed he to come and Gary Williams telephoned if would her she her Defendant asked pick up. him She told him to the Commodore Club. go with up. her Defen- way pick was on his Gary car. I said, I in the get gun "I’ll have a you. dant to, if I have but highway wait for on the Gary will get I will He then left. you”. arrived, tire out took a he Gary
When Williams change the began driving of the car he was said, in car and pulled up flat. Defendant move, Sheryl get I’ll boy, you. shoot "[d]on’t out of the Sheryl get or I’ll kill him. of the car Gary car”. Defendant then fired several shots * assignment. judge, sitting Appeals by Circuit on the Court of People 673 v Vieau op Opinion the Court later, several more 15 seconds About fell. Williams injured. wife was defendant’s were fired and shots at to defendant married Vieau was Sheryl the court claims Defendant of trial. time the de- admitting testimony her erred privilege spousal trial over at fendant held that judge The trial objection. in Tram- adopted the rule under permissible States, 906; 63 L 40; 100 S Ct United 445 US
mel v (1980). claims that appeal, defendant 186 On Ed 2d the decision holding that erred judge the trial Trammel, application supra, precludes privilege, concerning spousal statute Michigan agree. 17A.2162. We 600.2162; MSA MCL Michigan clearly privilege marital question Trammel, unaffected statute and is governed by Wadkins, 272, Mich App People v 101 supra. See Thompson, v (1980); 282-284; NW2d (1981); 324, 331; 314 see NW2d 111 Mich 164, 177; 280 NW People Zabijak, also (1938). Nevertheless, court erred although the trial rule federal common-law the modified applying Trammel, of the Michi- supra, instead adopted statute, find that Vieau’s gan we priv- Michigan admitted. The properly 600.2162; MSA in MCL ilege rule is embodied 27A.2162, in part: which states examined for or as a witness
"A husband shall not be
consent;
for or
nor a wife
against his wife without her
consent, except in suits
against her husband without his
*4
bigamy,
prosecution for
for divorce and in cases of
against
committed
cases of
for a crime
both,
the cause
and where
children of either or
wrong
injury done
grows
personal
”
added.)
(Emphasis
the other.
one to
App
136 Mich
670
674
Opinion op the Court
Love,
596, 602; 339
People
v
127 Mich
In
(1983),
held that
this Court
statu-
NW2d
in cases "where
spousal privilege
tory
of a
the cause of action
applies
one to
other”
against
a crime committed
prosecution of
of the same criminal
person
part
where
against
transaction as a crime committed
the testi-
case,
In
spouse.
present
defendant
shot
fying
part
at the same time and as
of the same
Williams
during
Sheryl
transaction
which he also shot at
Vieau,
separately
for which
defendant
with intent
to murder
charged
with assault
People
v Love
recognize
Vieau. We
differs
case in that
factually from the instant
there the
against
testifying spouse
crime
the crime
the third
together
and tried
with
Here,
person.
motion to consoli-
prosecutor’s
denied,
date the two cases was
and hence the
Williams,
party,
crime
the third
was tried
However, we deem the
separately.
statutory excep-
applicable
regardless
tion
of whether
the crimes
the third
are tried
State v
498,
Briley,
together.
NJ
507;
(1969),
Defendant has raised a number of other claims appeal, on none of merit substantial discus- sion. regard With to defendant’s claim that court erroneously instructed the as to consid- jury offenses, eration of lesser included failed instruction, to object consequently, we decline to preserved address this issue as not People v appellate 356, Handley, review. Marland, 360; (1982); NW2d 710 — — (1984). Mich App 297; NW2d We find no reversible error in the bailiff’s off- *5 People v Vieau by M.E. J. Dodge, the-record communication jury, pursu- made judge’s ant to the trial request prior and to com- deliberations, mencement of that the judge would giving any not further instructions and that begin could jury deliberations.
With regard claims of improper prosecutorial argument, we find no impropriety requiring reversal of defendant’s conviction.
We find no abuse of discretion in the trial judge’s decision to admit concerning evidence a cut in the right valve stem of the rear of tire the car by Sheryl driven Vieau. We also find no deliberate suppression of evidence prosecution. we find that a
Lastly, reasonable could jury find of premeditation elements and deliberation proved a beyond reasonable doubt.
Affirmed.
J. (dissenting). On
Dodge,
appeal,
pros-
Love,
ecutor urges
this Court
follow
596;
(1983),
127 Mich App
Michigan’s rule, spousal privilege 600.2162; MCL 27A.2162, MSA in part: states "A husband shall not be examined as witness for or against his consent; wife without her nor a wife for or consent, her except husband without his suits for divorce prosecution cases bigamy, cases for a crime committed both, children of either or where cause of out of ” added.) one to the (Emphasis other. Love, supra, In defendant, estranged his and her fellow employee were in the fellow em- 136 Mich shot allegedly The defendant car.
ployee’s
kidnapped
then
employee,
fellow
killed the
ruling
an
In
wife.
existed,
on
Court relied
rule
this
privilege
Supreme
Jersey
the New
rationale
used
53 NJ
498;
(1969):
court,
by the trial
the defen-
upon
relied
Briley,
"In
companion of
murdered a male
shot and
dant husband
his
wife
with a
estranged wife and then assaulted
time,
Jersey
statutory
a
rule of
gun.
had
At that
New
spousal privilege
Michigan’s
statute.
similar
evidence
the murder of his
Briley with
Jersey
New
against his
companion and with an assault
wife’s male
compelled Briley’s
testify
The trial court
wife.
the
charge as well as
assault
regarding the murder
objection.
Briley
her
against
over
held,
"
event in which she and
single
'If
is a
criminal
there
targets
of the husband’s criminal
others are
or victims
integrated incident and
totality
in the
conduct
charges
against
the husband for some
formal
are made
(one
charges
of which
is
or all the offenses committed
should
against
spouse),
the
the wife
for an offense
compellable
against her hus-
competent witness
regardless
of all the
of whether
band at the trial
cases
And,
they
proceeding.
are tried
connection,
the
this
it
offense
should be immaterial
against
dimensions of
the wife does not reach the same
third-party
victim.’
criminality as
does
507;
Briley, 53 NJ
gauge drafting victim-spouse exception narrowly spousal privilege should be above. Because construed, privilege stated Therefore, broadly. in the statute should be construed v Vieau M.E. we hold that a crime committed part of the same criminal as committed transaction as a crime spouse 'grows out of a wrong within policy injury’ done to the and is therefore exception. This result is consistent with the harmony behind the statute. Marital will not be significantly victim-spouse required decreased if the charges arising to nal on two from the same crimi- merely supra, p Love, rather one.” transaction than position Briley The Court noted that the taken in overwhelming weight accord with jurisdictions. authority from other meaning rule, dispute dispute of which was in and is in Love here, grows "where the cause of action support one to the other”. To the claim that case, wife’s was admissible in this it is necessary to find that the state’s cause of action *7 Gary the defendant for the murder of grew injury Williams by Sheryl done defendant to I Vieau. cannot reach this conclusion based on an of examination the language history of the statute. "personal wrong injury
The element of a done present one to the other” here in the form of upon Sheryl using the assault Vieau. Even the possible phrase broadest construction of the "grows of’, however, I cannot conclude that Gary the state’s cause of action for the murder of grew Williams out of the assault on Vieau. phrase "growing The use of the out of’ indicates way, that the be, cause of action must in some the personal injury spouse of result the to killing Gary may the other. While the of Williams grown injure have out of defendant’s intent killing wife, the state’s cause of action for the did Mich Dodge, J. of cause people’s The injury. out of the grow not the assault for action the done to her out of the
grew murder the defendant, the cause of action but person did not. of think can be distin- Michigan statute I interpreted Jersey statute from the New guished 23(2), NJS Rule supra. Jersey, In New Briley, in of the accused 2A:84A-17(2), stated that action in such shall not in a criminal * * * an charged with the accused is "unless used spouse”. offense of interpretation preclude does not the statute Briley supra. The accused Briley, it spouse, even against his with an assault charged of the murder with though he was also reading statutory of the This broad person. third its con- with exception, relevant of the langauge it, on restrictions imply any comitant refusal intent, Legislature’s represented not have may Legislature’s no did violence certainly but cannot be made analysis The same language. it in the interpret way To Michigan statute. interpreted that state’s Jersey the New proba- ignore Briley only would not statute intent, legisla- but do violence legislative ble language. tive Supreme our own majority ignored has also interpretation
Court’s extensive dis- The most immunity statute. the statute legislative intent behind cussion upon principles and the common-law Quanstrom, appears based (1892). provision *8 254; 53 NW Quanstrom remains Court interpreted by the been unchanged. have Three virtually divorce, added, prosecutions in suits for applying 679 Vieau v Quanstrom), overruling for bigamy (effectively for prosecutions a crime committed phrase children of either both. or this Court interpret, must "where the cause of action personal of a or wrong injury out one to other”, Quanstrom. was interpreted began by noting "personal words wrong or "in injury” were used a restricted sense”. Quanstrom, supra, p If phrase been had sense, stated, used in its broadest the Court there would have been no for necessity providing for exceptions. other
The Court analyzed privilege as one embodying law, the common At law. common exceptions to the privilege were allowed "from the necessity of the case”. Such necessity had been described Lord particular Mansfield as "a neces- where, sity, instance, as for the wife would other- exposed, wise be personal without remedy, to in- jury”.1 The Court stated: "The of the rule at law common was as language 'personal statute,
broad as the our injury’ in language meant, mean, and that and was held to violence, constructive, either actual or person, to the long a line of decisions the wife was not allowed give to prosecutions bigamy, for any other injury involving personal corporeal crime not violence 'wrong’ to her. the 'injury’ words are often used the one injury person other. An is a wrong, and a injury constructive is also a A wrong. wrong is an injury, defined be and an injury wrong. a as A is an invasion of right; pertains person, A growing individual. cause of personal designed protect is one or secure right. right, some wrong, individual well as as the pertain person. must to It must Cooke, 1784). 422, 424; (KB, Bentley Doug Rep Eng *9 Dodge, J. character, no can sense in its personal purely wrongs, public said to embrace exception here be the they wound only in the sense that are which humiliate, inflict no annoy but feelings or the upon supra, pp 256-257. Quanstrom, person.” the judicial other from decisions The Court reviewed exceptions to jurisdictions the concluded that immunity Michigan’s statute should be resulting narrowly, of in the exclusion construed dispute. testimony stated: Court the wife, testimony excluding of the it is the "In the cases imported into the statute legislature had held that the that, any departure rule, and before the common-law affirmed, is, through ages of it as from that rule — foundation, law; having its as a rule solid common Brewer, of in the best interests by Mr. Justice said declaring language adjudged, society —can prevent doubt as so clear as legislative will should be weight authority limit. The clear to supports cases, its intent principles these last-cited laid down admissibility testimony. and is her, certainly is not a If not a crime Quanstrom, supra, p 260. personal to her.” to extend Quanstrom refused spousal immunity statutory exceptions rule to the declaring except "the in cases where prevent legislative doubt as [is] clear as to will so Although recognize I and limit”. its intent public policy interpretation may support a broad considerations rule, I
of the plain history ignore or its cannot the statute’s therefore, liberal cannot, I terms. subscribe adopted by major- interpretation statute ity. at Because she was still married to defendant trial, should the time of Vieau’s upon request. I have been excluded admitting her the error cannot conclude that v Vieau M.E. testimony was harmless. testimony clearly damaging. Her provided evi- dence strongly supporting the premedita- claim of tion which provided was not by that of other any witness.
I would reverse and remand for new trial.