STATE of Minnesota, Respondent, v. Michael Sean GIANAKOS, Appellant.
No. C6-00-1691.
Supreme Court of Minnesota.
May 23, 2002.
644 N.W.2d 409
To protect the courts, the legal profession, and the public, to guard the administration of justice, and to deter similar misconduct, Steve C. Samborski is disbarred from the practice of law in Minnesota, effective immediately.
Disbarred.
Mike Hatch, Minnesota Attorney General, Natalie E. Hudson, Assistant Attorney General, St. Paul, Lisa Borgen, Clay County Attorney, Moorhead, for Respondent’s.
OPINION
STRINGER, Justice.
On May 7, 1997, the body of Anne Marie Camp (Camp), the victim of an apparent homicide, was discovered on an abandoned farmstead in Clay County, Minnesota. A lengthy investigation eventually led authorities to suspect appellant and his wife, Jamie Dennis-Gianakos. The couple had married on February 14, 1997, at least in part for the purpose of invoking the mari
On October 28, 1999, appellant and Jamie were indicted on charges of first-degree murder, conspiracy to commit first-degree murder, and aiding first-degree murder1 in Camp’s death. Jamie pleaded guilty as part of a plea bargain agreement and, over appellant’s marital privilege objection,2 testified for the state at appellant’s trial. Following a jury trial, appellant was convicted on all counts and sentenced to life in prison. The issues presented on appeal are whether the trial court erred in allowing appellant’s wife Jamie to testify against him despite his request that her testimony be excluded based on the marital privilege set forth in
At the time of her death, Camp was a friend of appellant and his wife Jamie. Camp also babysat for the couple’s chil
On February 14, 1997, following a 17-month courtship, Jamie and appellant married. There is a discrepancy in the record regarding the motivation for and timing of their marriage: in appellant’s initial statement to authorities he indicated that the reason they got married when they did was so that they could not be forced to testify against one another; he later clarified his statement by claiming that what he meant was that avoiding adverse testimony was part of his reason for marrying Jamie, but that he also married her because he loved her. Jamie was more consistent in her testimony, acknowledging the marriage was a “sham” and claiming that the purpose of their marriage was to prevent her and appellant from having to testify against each other. The evidence also indicated that their marriage had been contemplated a year earlier when the couple began attending premarital classes at church, but the idea was dropped when Jamie became pregnant. Appellant said Jamie told him she “didn’t want to be fat in a dress” and that “it was just a piece of paper anyway.”
In any event, both admitted the marriage was at least partially motivated by their desire to take advantage of the privi-
Initially, appellant and Jamie were not suspects in Camp’s murder and did not become the focus of the investigation until September 1998, more than a year later, when appellant’s family contacted authorities indicating that they had information regarding the Camp murder. In their recorded statements to police and in subsequent trial testimony, appellant’s parents explained how appellant had called them on the telephone crying and upset, purportedly having just read an entry in one of Jamie’s journals detailing the murder of Camp. Appellant’s mother claimed that appellant told her he was living with a murderer and that he thought his wife shot Camp. Appellant’s father testified that appellant, seemingly reading directly from an account of Camp’s murder written by Jamie, conveyed statements about giving Camp some pills that did not kill her, not being able to shoot her because she was stumbling around “woozy,” noting that her throat was slashed, and indicating that Ja
Based on this information appellant’s home was searched and although some journals belonging to Jamie were seized, including one that made reference to Camp “haunting” her, none contained the specific statements appellant had shared with his parents.5 Nonetheless, authorities found appellant’s statements significant because at this time in the investigation, the only information that had been released to the public regarding Camp’s murder was that she was killed on оr about May 1, 1997, and that she had suffered a gunshot wound to the head. Investigators knew that any additional information about Camp’s death, such as the fact that her throat had been slashed, would only be known to those somehow involved in the murder. But appellant’s statements regarding the pills confused investigators and prompted them to order a more in-depth lab analysis than that originally performed in conjunction with the autopsy.6 The results of this subsequent analysis revealed a concentration of doxylamine succinate in Camp’s system—a drug common in sleep aids—equal to approximately 85 times the normal prescribed dosage. Experts testified that such high quantities would have significantly debilitated Camp, physically and
On June 11, 1999, Jamie began serving her sentence at the Shakopee correctional facility for a probation violation. Investigators obtained permission to monitor Jamie’s calls and those coming in and out of the Gianakos home, hoping they might reveal new potential witnesses or other information helpful in solving the case. Investigators also interviewed Jamie but she remained silent on the advice of appellant. Eventually however, with the news that appellant’s parents had made statements to authorities implicating her and that a grand jury was being convened to seek a first-degree murder indictment against her and appellant, Jamie testified that she could no longer take the pressure. On October 21, 1999, Jamie confided in a fellow inmate about Camp’s murder, and the inmate subsequently contacted investigators and reported the details of the Camp murder as conveyed to her by Jamie.
On October 28, 1999, a grand jury indicted appellant and Jamie for first-degree murder, conspiracy to commit first-degree murder, and aiding first-degree murder. Appellant pleaded not guilty and opposed the state’s motion to prohibit him from invoking the marital privilege. The trial court ultimately ruled that Jamie could testify against appellant relying principally on federal case law recognizing exceptions to the marital privilege on grounds that the marriage was not entered into in good faith and that the couple was engaged in joint criminal activity.7
At appellant’s trial, Jamie testified against him as part of a plea agreement. According to Jamie, Camp’s potentially damaging statements to police regarding
Jamie testified in detail as to what happened on the evening of May 1, 1997, when she, appellant and their two children drove Camp out to the farmstead under the pretense of showing Camp some property appellant and Jamie were thinking of buying. Jamie explained that she gave Camp the drugged wine cooler to drink during the drive and that appellant pretended to be lost so the drugs and alcohol would have time to take effect. Jamie claimed that they arrived around 8:30 p.m., just as it was getting dark, and that Jamie, Camp, and the children went into the abandoned farmhouse to look around until appellant eventually called for them to leave. Camp was walking very slowly by this time. As Jamie reached the car, she saw appellant come up behind Camp from the back of the house with a shotgun in his hand. Jamie then heard the gun go off and saw Camp fall. According to Jamie, appellant proceeded to put on some rubber gloves,
Jamie testified that she and appellant then went home, Jamie drove to Camp’s apartment to retrieve Camp’s purse, and upon her return home appellant drove off with the purse. According to Jamie, appellant called about forty-five minutes later from his parent’s house to say that he had removed evidence from the farmstead that could connect them with the crime and that he had thrown the contents of Camp’s purse along the road. Jamie also testified that he told her he had “broken down” the gun and gotten rid of it. Appellant returned home around 12:30 a.m., and the couple later agreed that, if asked, they would say they were shopping that night.
Appellant testified to a very different story about the events of May 1, 1997. Contrary to Jamie’s testimony regarding a joint “plan,” appellant claimed he was not involved in any way with Camp’s death. Although his testimony revealed some confusion about whether or not he was with Jamie on the evening of May 1, 1997, he admitted to being present when the wine coolers were purchased and to buying the .12 gauge shotgun which he claimed was for Jamie’s protection during his impending incarceration for the motel robbery. Jamie contradicted appellant’s testimony on this point, stating that she didn’t like guns and was not concerned about security during appellant’s upcoming imprisonment.
In any case, appellant testified that Jamie and the girls then went to the house of
The medical examiner and others assisting in the investigation also testified at appellant’s trial, describing the condition of Camp’s body and the evidence found at the scene. A massive head wound was apparent to arriving authorities, and abrasion marks on Camp’s torso as well as grass caught under her pushed up bra and jacket suggested that the body had been dragged by the feet face down to its current position just north of the farmhouse. Both the medical examiner and an investigator with the Bureau of Criminal Apprеhension testified that it was likely that at least two people were present at Camp’s murder because, considering Camp’s weight and the fact that she was probably already dead or at least unconscious at the time she was moved, it would have been extremely difficult for one person to drag her body to the place where it was found. Camp’s throat had been slashed and a shotgun wad was found entangled in her hair. Blood spatter analysis of the north wall of the farmhouse indicated that the trauma to the head was probably inflicted in approximately the same location and position in which the body was discovered, lying face up about four feet from the house. Shotgun pellets found in and near Camp’s body were consistent with those fired from a .12 gauge shotgun. A search of the surrounding area uncovered a pack of cigarettes, Camp’s wallet and its scattered contents, and a pair of latex gloves.
A farm neighbor who was outside on the evening of May 1, 1997, provided independent testimony of some events relating to the commission of the crime. He testified to seeing an unfamiliar car drive past at approximately 9-9:30 p.m., and turn into the farm where Camp’s body was later found. He subsequently heard a gun shot from that direction on his way into the house. Investigators measured tire tracks found at the scene in an attempt to identify a vehicle make and model, but nо conclusive match could be made.
The jury ultimately found appellant guilty of all charges and he was subsequently sentenced to life in prison.
I.
We first consider whether our jurisprudence supports a denial of the marital privilege in cases where one of the reasons the couple chose to marry was to invoke the privilege, and whether there is an exception to the marital privilege under Minnesota law relating to spouses who engage in joint criminal conduct. The availability of a privilege established under statutory or common law is an evidentiary ruling to be determined by the trial court and reviewed based on an abuse of discretion standard. See
As a preliminary matter, we note that despite the statutory nature of Minnesota’s marital privilege,8 its roots are in the common law,9 and this court retains inherent power to adopt standards by judicial opinion relating to the admissibility of evidence in the interest of justice. See State v. Erickson, 589 N.W.2d 481, 485 (Minn. 1999) (recognizing this court’s power not only to promulgate court rules, citing
The social policy underlying the marital privilege was well set forth many years ago in State v. Feste:
The family is the basic unit of society as the cell is of the body. To cause strife between the parties to a marriage contract is to undermine this institution and thus to weaken the entire social structure. Courts and legislatures have recognized the burden which antagonistic interests impose upon the intimate relations of husband and wife and the harm to the public which results from marital discord, and have, as a general rule, refused for this reason to permit one spouse to testify against the other without the latter’s consent.
205 Minn. at 74-75, 235 N.W. at 86. The marital privilege in Minnesota is embodied in
A. The Sham Marriage Exception
The trial court denied appellant’s request to invoke the marital privilege in
Appellant argues that the trial court’s reliance on federal jurisprudence is misplaced and that the trial court erred by recognizing exceptions to the marital privilege beyond those enacted by the legislature. Appellant further asserts that even if Minnesota’s statute did contain a “sham marriage” exception, it would not apply here because appellant’s marriage to Ja
The state, on the other hand, claims that based on the evidence, the trial court reasonably concluded that the marriage of appellant and Jamie was disingenuous and entered into only to insulate the couple from having to testify against each other, initially in relation to the robbery charges and later with respect to Camp’s murder. The state asserts that upholding the marital privilege in this case would be absurd and contrary to this court’s previous rulings narrowly construing the statute to avoid creating “artificial barriers” to the truth. See Hannuksela, 452 N.W.2d at 676; see also Larson v. Montpetit, 275 Minn. 394, 402, 147 N.W.2d 580, 586 (1966) (“[E]videntiary privileges constitute barriers to the ascertainment of the truth and are therefore to be disfavored and narrowly limited to their purposes * * *.”).
While this court has at least implicitly recognized the legitimacy of the marriage as a factor in determining whether to apply the marital privilege,13 we decline to conclude that the marriage at issue here was so clearly a sham that the privilege should be denied on that basis. We recog
A review of our case law suggests that a strong showing is required to conclude that the marriage protected by the privilege is indeed so empty as to render the purpose of the privilege valueless. In State v. Frey, we concluded that the marital privilege statute protected a defendant husband from adverse spousal testimony even where a husband was being prosecuted for a premarital crime against his wife,14 76 Minn. at 530, 79 N.W. at 519, and in State v. Feste we held that a man contesting charges brought by his wife prior to their marriage that he was the father of her illegitimate child could preclude his wife from testifying against him at trial based on the marital privilege.15 205 Minn. at 76, 285 N.W. at 87. In no case have we ruled that a marriage is not worthy of the protection of the marital privilege, a statutory rule engrained in our
B. The Joint Participant Exception
We next turn to the detеrmination of the trial court that the couple’s joint criminal activity constituted an additional basis to preclude application of the marital privilege. The “joint participant” exception, also borrowed from federal jurisprudence, bars the application of the marital privilege to a defendant who engaged in joint criminal activity with his or her spouse. See United States v. Van Drunen, 501 F.2d 1393, 1396 (7th Cir.1974). This exception is based on reasoning that the policy of preserving family harmony is not sufficiently important to justify assuring a criminal that he can enlist his or her spouse as an accomplice without fear of creating an adverse witness.
Appellant again argues that it was improper for the trial court to recognize an exception to the testimonial privilege that was not identified in the statute, and that the legislature is in a better position to address public policy issues than the court.
We have not directly ruled on denial of the spousal privilege based on the joint participation of thе spouses in criminal activity, although we have indirectly supported its rationale, see, e.g., Hannuksela, 452 N.W.2d at 676 (“A loyal spouse should not, in our view, become a
II.
In light of our ruling that the trial court erred in failing to preclude Jamie’s testimony оver appellant’s objection, we consider whether that error was prejudicial. In making such a determination we apply a harmless error analysis. See State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997). If the verdict rendered was “surely unattributable” to the error, it is harmless beyond a reasonable doubt and the conviction may stand. State v. Keeton, 589 N.W.2d 85, 91 (Minn.1998); Juarez, 572 N.W.2d at 292. We conclude that admission of Jamie’s testimony was not harmless beyond a reasonable doubt.
A review of the record reveals that the majority of the testimony regarding the events of May 1, 1997, came from
We remand for a new trial consistent with our ruling, and because we do so, we do not address appellant’s final argument that the evidence presented at trial was insufficient to corroborate the testimony of Jamie, his alleged accomplice, and that the trial court erred in failing to instruct the jury sua sponte that a conviction cannot rest on the uncorroborated testimony of an accomplice.
Reversed and remanded.
LANCASTER, Justice (dissenting).
When a married person commits a crime with his or her spouse and is willing tо testify about committing the crime, may
The Minnesota Constitution separates the government into three distinct branches:
The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.
As part of the judicial power, this court has the primary responsibility for the regulation of evidentiary matters.
It is true that this court has acquiesced in legislative acts prescribing administrative procedures for admission, and
* * * [T]he court may wish to adopt some of the provisions by rule of the court. However, in so doing, we do not concede that their enactment was a permissible legislative prerogative.
Sharood v. Hatfield, 296 Minn. 416, 424-25, 210 N.W.2d 275, 279-80 (1973) (emphasis added) (holding statute unconstitutional as legislative assumption of judiciary’s power to regulate the practice of law). Notwithstanding legislative attempts to limit the court’s power to regulate evidentiary issues, the court’s inhеrent authority includes the power to establish rules of evidence. Willis, 332 N.W.2d at 184. I agree, therefore, with the majority that “this court retains inherent power to adopt standards by judicial opinion relating to the admissibility of evidence in the interest of justice.”
The majority correctly notes that two marital privileges exist in Minnesota: (1) the privilege against adverse spousal testimony; and (2) the marital communications privilege.
The majority’s exaltation of the statutory nature of Minnesota’s marital privileges is peculiar in light of its recognition that the statute codifies the common law. The codification of the privilege against ad
Enactment of the rules governing human affairs into positive legislation reduces the statement of the law to more concise form than common or unwritten law. The advantages of brevity and conciseness are achieved, however, by sacrificing the ability to make specific provision for the multitudinous situations which may arise. In common-law jurisdictions this shortcoming has been overcome by judicial construction which modifies and synchronizes statute law with common-law rules and maxims.
2B Norman J. Singer, Statutes and Statutory Construction § 50:02 (6th ed.2000) (footnote omitted).
Despite its acknowledgment of the court’s inherent authority to establish rules of evidence, the majority provides no justification for its refusal to exercise the court’s power to recognize a joint participant exception to the privilege against adverse spousal testimony. Instead, the majority states “[i]t is simply too great a departure from over 100 years of this
The policy underlying the privilege against adverse spousal testimony is to preserve marital harmony. Trammel v. United States, 445 U.S. 40, 44, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980); State v. Feste, 205 Minn. 73, 74-75, 285 N.W. 85, 86 (1939); 1 McCormick on Evidence § 66, at 280 (John W. Strong ed., 5th ed.1999). The preservation of marital harmony is not, however, an absolute goal to be pursued blindly. See State v. Hannuksela, 452 N.W.2d 668, 676 (Minn.1990) (refusing to consider the policy of protecting “the serenity of the marital relationship” in isolation); Leecy, 294 N.W.2d at 283 (noting that a marriage nearing dissolution will not support assertion of the privilege against adverse spousal testimony); see also
“[E]videntiary privileges constitute barriers to the ascertainment of truth and are therefore to be disfavored and narrowly limited to their purposes * * *.” Larson v. Montpetit, 275 Minn. 394, 402, 147 N.W.2d 580, 586 (1966). We have narrowly construed the marital сommunications privilege to assure a jury’s access to relevant facts:
[I]f this policy of affording protection to the serenity of the marital relationship were to be considered in isolation, a
strong argument could be advanced justifying a broad construction [of the marital communications privilege]. However, to give such broad construction to the term “communication,” would burden another important social policy—to wit, one concerned with assuring that a jury in a criminal trial have access to all relevant facts. * * * “[A] loyal spouse should not, in our view, become a partner in crime with the blessing of the law bestowed through a strained construction of the statute which is said to be supported by a policy of promoting marital bliss.”
Hannuksela, 452 N.W.2d at 676 (quoting People v. Simpson, 39 Ill.App.3d 661, 350 N.E.2d 517, 524 (1976), rev’d on other grounds, 68 Ill.2d 276, 12 Ill.Dec. 234, 369 N.E.2d 1248 (1977)).1
The majority ignores our refusal in Hannuksela to condone the transformation of a marriage into a criminal enterprise. In effect, the majority “ ‘secures, to every [spouse], one safe and unquestionable and ever ready accomplice for every imaginable crime.’ ” Trammel, 445 U.S. at 52, 100 S.Ct. 906 (quоting 5 Jeremy Bentham, Rationale of Judicial Evidence 340 (1827)). The goal of preserving marital
This court’s precedent belies the majority’s characterization of federal case law as being “of little persuasive value.” This court has relied on federal case law to interpret the privilege against adverse spousal testimony. See Leecy, 294 N.W.2d at 283 (citing United States v. Fisher, 518 F.2d 836 (2d Cir.1975)); cf. Hannuksela, 452 N.W.2d at 676 & n. 11 (interpreting the marital communications privilege in accord with federal case law).
The majority imposes substantial costs on the criminal justice system. The majority’s refusal to recognize a joint participant exception to the privilege against ad-
Although the majority imposes substantial costs on the criminal justice system, it does not advance the interest underlying the privilege against adverse spousal testimony. Appellant admitted he married Jamie to take advantage of the privilege against adverse spousal testimony to prevent her from testifying about the robbery they committed before they murdered Camp. Jamie acknowledged the same, adding that her marriage to appellant was a “sham.” Thus, rather than preserving marital harmony, the majority preserves a relationship in which each partner really has secured “ ‘one safe and unquestionable and ever ready accomplice for every imaginable crime.’ ” Trammel, 445 U.S. at 52, 100 S.Ct. 906 (quoting 5 Jeremy Bentham, Rationale of Judiсial Evidence 340 (1827)). Appellant’s clarification that he married Jamie to take advantage of the privilege and because he loved her does not alter the conclusion that the majority fails to advance the interest underlying the privilege. “When one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.” Id. Here, Jamie agreed to testify against appellant. The barrier to the ascertainment of truth erected by the majority could not be more complete. The majority banishes from the witness stand a person who committed a crime and is willing to testify about it.
A spouse who is willing to testify against his or her spouse about crimes they com
[T]he [state] is unlikely to offer a [spouse] * * * lenient treatment if it knows that [the other spouse] can prevent [the spouse] from giving adverse testimony. If the [state] is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a [spouse] in jeopardy solely by virtue of [the other spouse’s] control over [the spouse’s] testimony.
The majority fails to explain its refusal to exercise the court’s inherent authority to establish rules of evidence to recognize a joint participant exception to the privilege against adverse spousal testimony. In my view, the substantial burdens the majority imposes on the criminal justice system by permitting appellant to deprive the jury of the testimony of one of Camp’s murderers are not justified by its thin reasoning and citation to family law cases. The legislature has not explicitly said that the testimonial privilege should extend to joint participants, and nоt even comity demands this perverse result. I would accept for the judiciary the responsibility of determining whether a joint participant exception to the privilege against adverse spousal testimony exists. Having accepted that responsibility, I would conclude that such an exception does exist, and affirm the conviction.
Notes
In Trammel, the United States Supreme Court vested in the witness-spouse alone the privilege to refuse to testify adversely to the defendant-spouse. 445 U.S. at 53, 100 S.Ct. 906. Relying, at least in part, on the decision in Trammel to vest the privilege in the witness-spouse alone, the Second, Third, and Ninth Circuits refused to adopt a joint participant exception to the privilege against adverse spousal testimony. See United States v. Ramos-Oseguera, 120 F.3d 1028, 1042 (9th Cir.1997), overruled on other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000), overruled by United States v. Buckland, 277 F.3d 1173, 1182 (9th Cir.2002); In re Grand Jury Subpoena United States, 755 F.2d 1022, 1026-27 (2d Cir.1985), vacated as moot sub nom. United States v. Koecher, 475 U.S. 133, 106 S.Ct. 1253, 89 L.Ed.2d 103 (1986); In re Grand Jury Empanelled October 18, 1979, 633 F.2d 276, 278 (3d Cir.1980). That the nontestifying spouse controls the privilege in Minnesota undermines the persuasive value of these decisions.A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage.
[A] civil action or proceeding by one [spouse] against the other, * * * a criminal action or proceeding for a crime committed by one [spouse] against the other or against a child of either [spouse] * * * a criminal action or proceeding in which one [spouse] is charged with homicide or an attempt to commit homicide and the date of the marriage of the defendant is subsequent to the date of the offense, * * * an action or proceeding for nonsupport, neglect, dependency, or termination of parental rights.