THE STATE OF OHIO, APPELLANT, v. ADAMSON, APPELLEE.
No. 94-282
SUPREME COURT OF OHIO
July 5, 1995
72 Ohio St.3d 431 | 1995-Ohio-199
Submitted April 5, 1995
Criminal law—Evidence—Evid.R. 601(B)—Competency—Spouse remains incompetent to testify until he or she makes a deliberate choice to testify, with knowledge of the testifying spouse‘s right to refuse—Trial judge must take active role in determining competency.
Under
APPEAL from thе Court of Appeals for Brown County, No. CA92-05-011.
{¶ 1} On November 28, 1991, at around 11:30 p.m., Diane Christine Adamson (“Chris“) drove her husband, defendant-appellee Darryl L. Adamson, to H.C. Freeman‘s residence in Georgetоwn, Ohio. Chris had urged Darryl to talk to Freeman to allay Darryl‘s fears that Chris and Freeman were romantically involved. The two men came upon each other in the driveway of Freeman‘s rеsidence; they struggled and Freeman suffered two fatal stab wounds to the chest.
{¶ 2} At trial, the state called Chris Adamson to testify against her husband. She initially refused to testify, asserting her Fifth Amendment right against self-inсrimination. Upon the prosecutor‘s request that the judge order her to testify, Chris Adamson was granted immunity pursuant to
{¶ 3} Mrs. Adamson complied with the judge‘s order to testify against her husband. While the prosecution did present other witnesses in its case against Adamson, none but Mrs. Adamson could testify as to the entire chain of events that unfolded in Freeman‘s driveway. Two prosecution witnesses, nеighbors of Freeman, saw the two men mid-struggle, but did not see what preceded. Freeman‘s girlfriend, Denise Paeltz, was on the telephone with Freeman when Adamson arrived. She heard Freeman sаy, “What the hell are you doing,” followed by “a name like Jerry or Jerryl.” She testified hearing the other person say, “I was thinking about killing you.”
{¶ 4} Adamson admitted killing Freeman, but denied that he did so with prior calсulation and design. In his statement to police, which was entered into evidence at trial, he stated that when he arrived at Freeman‘s residence he was unsure of what to do. When he saw Freeman‘s truck, Adamson stated, he decided to teach Freeman a lesson by slashing its tires. Adamson stated that when he got to the front tire Freeman startled him by opening the door and emеrging from the truck. As Freeman was leaving the truck, according to Adamson, he fell into Adamson, perhaps causing the first stab wound. A struggle followed, both men fell to the ground, and Freeman was stabbed аgain. Adamson stated that he had not intended to stab Freeman.
{¶ 5} Chris Adamson‘s testimony differed from her husband‘s in several important respects. She testified that she could see Freeman in his truck as shе pulled into the driveway. She stated that it appeared that Adamson opened Freeman‘s door, that there was an exchange of words between the two, and that Adamson “[s]aid ‘I сome to talk to you, maybe I‘ll just fuck with you.‘” Mrs.
{¶ 6} Adamson was cоnvicted of aggravated murder. Adamson‘s trial counsel also represented him on his appeal to the Twelfth District Court of Appeals. At trial and on appeal, Adamson‘s counsel failed to raise the issue of the competency of Mrs. Adamson‘s testimony, and the appellate court affirmed the conviction and sentence. However, the dissent in that case raised, sua sponte, the issue of spousal competency under {¶ 7} This matter is before this court upon the allowance of a discretionary appeal. R. Alan Corbin, Brown County Prosecuting Attorney, for appellant. R. Scott Croswell, III and Elizabeth E. Agar, for appellee. Betty D. Montgomery, Attorney General, Richard A. Cordray, urging reversal for amicus curiae, Ohio Attorney General. PFEIFER, J. {¶ 8} “Every person is competent to be a witness except: “* * * “(B) A spouse testifying against the other spouse charged with a crime except when either of the following applies: “(2) The testifying spouse elects to testify.” {¶ 9} The focus of ” * * * Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the prеsence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witnеss * * *.” {¶ 10} Thus, {¶ 11} Spousаl privilege and spousal competency are distinct legal concepts which interrelate and provide two different levels of protection for communications between spouses. Under {¶ 12} In this case, the trial court was correсt as to what Mrs. Adamson could potentially testify to. Since Darryl performed his acts in the presence of Freeman, he could not assert that those acts were privileged. However, the trial {¶ 13} The rule requires that the testifying spouse elect to testify against her spouse. An election is “[t]he choice of an alternative[;] [t]he internal, free, and spontaneous separation of one thing from another, without сompulsion, consisting in intention and will.” Black‘s Law Dictionary (5Ed. 1990) 517. Thus, under {¶ 14} Competency determinations are the province of the trial judge. State v. Clark (1994), 71 Ohio St.3d 466, 469, 644 N.E.2d 331, 334. Pursuant to {¶ 15} In this case, the court did not determine that the spouse had elected to testify. The court nevеr informed Mrs. Adamson that it was her choice whether to testify and that the court could not force her to do so. Instead, after granting her immunity, the judge ordered her, “in the interest of justice,” to tеstify. This was clearly error. {¶ 16} We agree with the appellate court that although Adamson‘s counsel failed to object to the error at trial, the error rises to the level of reversible plain {¶ 17} The outcome of Adamson‘s trial would certainly have bеen different had his wife not testified against him. Adamson was convicted of aggravated murder, that is, murder committed with prior calculation and design. Adamson‘s story, that he had accidentally stabbed Freeman during a scuffle which occurred when Freeman startled him, was contradicted in key respects by his wife‘s testimony. Chris Adamson destroyed her husband‘s story of surprise: she testified that she could sеe Freeman inside his truck, that she thought her husband opened Freeman‘s door, and that her husband even exchanged words with Freeman before pulling him out of the truck. That this damaging testimony camе from Adamson‘s wife probably caused the jury to consider it to be especially credible. Chris‘s testimony certainly was the key factor in Adamson‘s conviction for aggravated murder. {¶ 18} Eliciting Chris Adamson‘s testimony without informing her of her right to not testify against her husband was plain error. We therefore affirm the judgment of the court of appeals. Judgment affirmed. MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.