Opinion
Case No. 1:19-cr-00068
2021-01-12
UNITED STATES of America, Plaintiff, v. Donavan Jay WHITE OWL, Defendant.
Dawn M. Deitz, U.S. Attorney's Office, Bismarck, ND, for Plaintiff. Christopher P. Bellmore, Federal Public Defender Office, Bismarck, ND, for Defendant.
Dawn M. Deitz, U.S. Attorney's Office, Bismarck, ND, for Plaintiff.
Christopher P. Bellmore, Federal Public Defender Office, Bismarck, ND, for Defendant.
ORDER GRANTING MOTION IN LIMINE
Daniel Mack Traynor, District Judge
[¶1] THIS MATTER comes before the Court on a Motion in Limine filed by the Defendant on March 20, 2020. Doc. No. 47. The Defendant seeks to exclude statements he made to his spouse about pouring gasoline throughout the subject home of the arson. Id. He argues these statements should be excluded due to the confidential marital communications privilege. Doc. No. 48. The United States filed a Response on April 2, 2020. Doc. No. 56. The Defendant filed a Reply on April 6, 2020. Doc. No. 57. A hearing on the Motion was held on December 22, 2020. Doc. No. 107. For the reasons stated below, the Motion in Limine is GRANTED.
BACKGROUND
[¶2] The Defendant, Donavan Jay White Owl, is charged with (1) Felony Murder within Indian Country, in violation of 18 U.S.C. § 1111, 1153, and 2; as well as (2) Arson within Indian Country, in violation of 18 U.S.C. § 81, 1153, and 2. Doc. No. 16. The factual background below is taken from the Indictment (Doc. No. 16), Tera Cooke's ("Cooke") FBI interviews (Doc. Nos. 56-2, 56-4) and the summaries of those interviews (Doc. Nos. 56-1, 56-3).
[¶3] The Defendant and Tera Cooke are currently married and were married during the timeframe alleged in the Indictment. See Doc. No. 48-1 (marriage certificate). The Defendant's charges arise from an incident that occurred around April 4, 2019. Doc. No. 16. It is alleged that the Defendant committed arson in that he
an Indian, did willfully and maliciously set fire to and burn a building, namely, 10101 Highway 73, Mandaree, North Dakota, the dwelling of Cody Serdahl (YOB 1978), and in so doing placed in jeopardy the life of any person, namely, Cody Serdahl (YOB 1978) and Winnifred Smith (YOB 1993)[.]
Doc. No. 16 at p.2. It is further alleged that in committing the arson, the Defendant, with malice aforethought, unlawfully killed Winnifred Smith. Doc. No. 16 at p.1.
[¶4] The incident occurred sometime in the late evening of April 3 or early morning hours of April 4, 2019. The Defendant, Cooke, Cody Serdahl ("Serdahl"), and Serdahl's girlfriend Winnifred Smith ("Smith") were all living at the house at that time it was burned. Cooke and the Defendant stayed in an upstairs bedroom, Serdahl and Smith lived in the basement. Serdahl's mother, Veronica Serdahl owned the house.
[¶5] During that timeframe, the Defendant, Cooke, Serdahl, and Smith were having a bonfire in the yard. While collecting wood, the Defendant and Cooke got into an argument and Serdahl told the Defendant to stop yelling at Cooke. The Defendant decided that Cooke must have been having an affair with Serdahl—someone the Defendant considered a brother—and began arguing with Cooke. Cooke left and went into a Chevy Tahoe to hide. While hiding, the Defendant got into the vehicle and began driving. The Defendant did not know Cooke was in the vehicle until he stopped for gas in Circle, Montana. At some point when the two were alone, the Defendant told Cooke he thought she was inside the residence that had burned and decided to pour gasoline around the house, through the bedrooms, kitchen, stairs, and deck. While he did not explicitly say he started the fire, the Defendant implied he did. Cooke further explained that the Defendant told her he poured the gasoline because he believed she was hiding in their room and would not come out when he called her. He also told her he poured the gasoline because he thought she was sleeping with Serdahl.
DISCUSSION
[¶6] The Defendant seeks to suppress any confidential communications between he and his wife, Cooke, regarding the alleged incident. He specifically contends the statements regarding pouring gasoline throughout the home should be excluded. Neither Party challenges the relevancy of the statement.
[¶7] Rule 501 of the Federal Rules of Evidence governs the application of privileges generally in the federal courts and provides:
The common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
Fed. R. Evid. 501. "[F]ederal courts follow the federal common law regarding privileges in federal criminal proceedings." United States v. Espino, 317 F.3d 788, 795 (8th Cir. 2003). This is in order "to allow the federal courts to develop rules on a case-by-case basis and ‘to leave the door open to change.’ " Id. (quoting Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) ). As such, the federal courts have broad latitude in applying privileges in federal criminal cases. Id. ("Therefore, federal courts are not bound by a mechanistic approach for applying the privilege in criminal cases.").
[¶8] Federal common law has delineated two marital or spousal privileges: (1) adverse spousal testimony privilege and (2) marital confidential communications privilege. Espino, 317 F.3d at 795. Under the adverse spousal testimony privilege, also known as the "anti-marital facts privilege," if the defendant and testifying spouse are married at the time of trial, the testifying spouse cannot be "compelled to testify nor foreclosed from testifying" against their spouse. United States v. Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000) ; see also United States v. Smith, 533 F.2d 1077, 1078 (8th Cir. 1976) (per curiam). As such, the testifying spouse holds this privilege and "may waive the privilege without the consent of the defendant spouse." Bad Wound, 203 F.3d at 1075.
[¶9] "The marital confidential communications privilege prohibits testimony regarding private intra-spousal communications." United States v. Evans, 966 F.2d 398, 401 (8th Cir. 1992). "[M]arital communications are presumptively confidential." Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 95 L.Ed. 306 (1951). "The Privilege for confidential communications ... is ‘quite thoroughly recognized and approved in this country.’ " 7 Charles Alan Wright & Peter J. Henning, Federal Practice and Procedure § 406 (2009) (quoting United States v. Mitchell, 137 F.2d 1006, 1007 (2nd Cir. 1943) adhered to 138 F.2d 831 (2nd Cir. 1943) ). In order for this privilege to apply the proponent of it must show (1) a communication occurred, whether by word or by act; (2) that the communication was between spouses who are currently in a lawful marriage recognized by the state and they are not permanently separated; and (3) it must be made in confidence—that is, "it cannot be made in the presence of a third party, and the communicating spouse cannot intend for it to be passed on to others." Evans, 966 F.2d at 401. If the Defendant meets these prerequisites, he may invoke the privilege, unless an exception applies. Id.
[¶10] The general rule that prohibiting testimony of one of the spouses against another "would promote peace in the family, not only for the benefit of the members thereof but for the benefit of the public as well" nevertheless may give way when the testifying spouse is the victim of the defendant's actions. Wilkerson v. United States, 342 F.2d 807, 809-10 (8th Cir. 1965). The victim-spouse exception is a long-standing rule of law which permits spousal testimony against a defendant when the spouse is a victim of the crime the defendant is accused to have committed. See Grulkey v. United States, 394 F.2d 244, 246 (8th Cir. 1968) ; Wilkerson v. United States, 342 F.2d 807 (8th Cir. 1965). The Eighth Circuit specifically adopted this exception as it applies to the adverse spousal testimony privilege. See United States v. Allery, 526 F.2d 1362 (8th Cir. 1975). In other words, "The [adverse spousal testimony privilege] is subject to the well-established exception where one spouse commits an offense against the other." Id. at 1365. Offenses against the testifying spouse "include any personal wrong done to the other, whether physically, mentally or morally injurious." Id. Courts have also included not just physical crimes against the spouse's person, but also property crimes against the spouse. Herman v. United States, 220 F.2d 219, 226 (4th Cir. 1955) ("[A] wife can be a witness against her husband not only when personal injury to her of a physical or moral nature is claimed, but also where the crime affects her property."); see also United States v. Seminole, 865 F.3d 1150, 1152, n.2 (9th Cir. 2017) (quoting the same from Herman ). [¶11] The Parties agree that the Eighth Circuit has not adopted this spousal-victim exception for the marital confidential communications privilege. The dispositive issue then is whether the Court, in its reason and experience, should apply the victim-spouse exception to the confidential communications between the Defendant and Cooke. The Defendant argues that some communications between the Defendant and his wife, Cooke, should be excluded because they were confidential. The United States does not contend those communications failed to meet the requirements of the marital confidential communications privilege. Rather, the United States argues that the victim-spouse exception, commonly applied to the adverse testimonial privilege, ought to apply to allow that testimony into evidence. The Defendant replies arguing the marital confidential communications privilege has no victim-spouse exception.
[¶12] The United States relies on Allery, which involved the application of the victim-spouse exception in an adverse spousal testimony privilege context. The Defendant replies that the Eighth Circuit had opportunity post- Allery in United States v. Smith, 533 F.2d 1077 (8th Cir. 1976) (per curiam), to apply that exception in the marital confidential communications privilege context but declined to do so.
[¶13] In Allery, the Eighth Circuit decided the spousal-victim exception applied in the context of the adverse testimony. The Eighth Circuit directed that all courts must perform a balancing of the policy behind the privilege with the societal benefits of not imposing the privilege's restrictions when determining the applicability of privileges under Rule 501. See Allery, 526 F.2d at 1366. The court in Allery specifically held, "this Court, as well as other federal courts, has the right and the responsibility to examine the policies behind the federal common law privileges and to alter or amend them when ‘reason and experience’ so demand." Allery, 526 F.2d at 1366. The confidential communication privilege, like all privileges, "must be strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.’ " Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)). This is because "[t]estimonial exclusionary rules and privileges contravene the fundamental principle that the ‘public has ... a right to every man's evidence.’ " Id. (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950) ).
[¶14] Subsequent to Allery, in Smith, the defendant appealed his conviction for possession of heroin with intent to distribute, specifically challenging the admission of his former wife's testimony, including putting a package in her lower back. 533 F.2d at 1078. On appeal, the defendant argued this testimony should have been barred under the confidential marital communication privilege. See id. at 1079. The Eighth Circuit held the act of putting the package in his spouse's lower back did not constitute a communication and therefore the confidential communications privilege did not apply. Id. The Court further found that the "anti-marital facts" or adverse spousal testimony also did not apply because an offense had been committed against the defendant's spouse—namely, he planted heroin on her person. Id. The Circuit did not discuss this exception as it relates to the confidential communication privilege. See id.
[¶15] While the Eighth Circuit perhaps had opportunity to discuss the application of the spouse-victim exception to the alleged confidential communications in Smith, it was not bound to because the alleged communications were found to not be communications at all. Id. The adverse spousal testimony deals with testimony generally, so because there was no communication, that was a possible avenue for excluding the defendant's former wife's testimony, and the Court found the victim-spouse exception would have applied had they still been married. Id.
[¶16] In United States v. White, a jury convicted the defendant of killing his two-year-old stepdaughter. 974 F.2d 1135, 1137 (9th Cir. 1992). Prior to that incident, however, the defendant had expressed frustration to his wife regarding his responsibilities as caretaker of the children. Id. This escalated into a threat from the defendant to his wife to kill both her and his stepdaughter. Id. One week after the threat, the stepdaughter was found unconscious by her mother and rushed to the hospital and later died. Id. At trial, the defendant objected to a question regarding the prior threat to kill both his wife and stepchild on the grounds that it constituted a confidential marital communication and therefore was barred by the privilege. Id. at 1137-1138.
[¶17] The Ninth Circuit cautioned that marital privileges in criminal cases must be narrowly construed due to the obstruction of the truth-seeking process of the criminal justice system. Id. at 1138. This is because society has a "strong interest in the administration of justice." Id. (quoting United States v. Marashi, 913 F.2d 724, 730 (9th Cir. 1990) ). The Ninth Circuit held that the policy behind the confidential marital communications privilege—that is, promoting family unity—gives way to the underlying policy of criminal cases of discovering the truth when the communications between the spouses' concern acts in which the spouse is the defendant's victim. 974 F.2d 1135, 1138 (9th Cir. 1992) ("[T]he marital communications privilege should not apply to statements relating to a crime where a spouse or a spouse's children are victims.") The Ninth Circuit concluded, "Protecting threats against a spouse or the spouse's children is inconsistent with the purposes of the marital communications privilege: promoting confidential communications between spouses in order to foster marital harmony." Id.
[¶18] In reaching this conclusion, the Ninth Circuit relied on the Eighth Circuit's reasoning in United States v. Allery. Id. The Ninth Circuit found " Allery held that the anti-marital facts privilege does not apply where the spouse or his or her children are the victims of the crime because applying the privilege in such a case is inconsistent with the policies underling it. Although Allery involved the anti-marital facts privilege, its rationale is applicable here." Id. (citing Trammel v. United States, 445 U.S. 40, 46 n.7, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (exceptions to the anti-marital facts privilege are similar to exceptions to the marital communications privileges).). Specifically relating to the threatening statement, the defendant in White made to his wife about killing her, the court found that the victim-spouse exception applied because he directly threatened to kill his wife. Id. Other Circuits have likewise applied the spousal victim exception to confidential communications, including when a child is a victim. See e.g. United States v. Breton, 740 F.3d 1 (1st Cir. 2014) ; United States v. Brown, 634 F.2d 819 (5th Cir. 1981) ; United States v. Bahe, 128 F.3d 1440 (10th Cir. 1997).
[¶19] In addition, while not using the specific language of marital confidential communications privilege, in Grulkey v. United States, the Eighth Circuit applied the victim-spouse exception under circumstances similar to the confidential marital communications. 394 F.2d 244 (8th Cir. 1968). In that case, the defendant moved to exclude testimony of his wife, Loretta Grulkey, specifically "concerning any communications with the defendant at any time during the time which they were married." Id. at 245. The defendant was charged with mailing a letter in which he threatened to kill her with a shotgun. Id. The trial court found Loretta Grulkey to be competent to testify and required defense counsel to raise any objections during trial. Id. At trial, Loretta Grulkey's testimony regarding the communications was admitted. Id. at 246 ("the trial court properly admitted the testimony of Loretta Grulkey, spouse of the defendant"). The Eighth Circuit held Loretta Grulkey's testimony regarding communications with her husband, the defendant there, were not barred due in part to the fact that she was the victim of the defendant's criminal act. Id. at 245-46.
[¶20] The Parties have not cited to any similar case to this nor has the Court found one in its independent research on this issue. Therefore, whether confidential communications between spouses are privileged when the Defendant intends his spouse to be the victim of the alleged crime is an open question. Because Allery generally gives the Court "the right and responsibility to examine the policies behind the federal common law privileges," in this case the confidential marital communications privilege, and to alter it when "reason and experience demand," the Court now examines whether reason and experience demand application of the victim-spouse exception under the circumstances of this case. See Allery, 526 F.2d at 1366.
[¶21] The difference between the cited line of cases and the present case goes to the very nature of the statement and the nature of the privilege. Balancing the policy rationale behind the marital communications privilege—family and marital harmony and unity—with the goal of ascertaining the truth, the Court concludes the policy rationale outweighs the benefits of the truth-seeking function of a jury trial process. Marriage in the United States is sacrosanct and the communications between spouses ought to be held to a high degree of protection due to the intimate nature of the relationship. See Obergefell v. Hodges, 576 U.S. 644, 656-57, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) ("Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations."). In the present case, based on the record before the Court, the Defendant made the statement regarding pouring gasoline throughout the house not to threaten Cooke, but to make amends for, as she interpreted, starting a fire because he believed Cooke was in the home.
[¶22] In each of the cases discussed above, where the courts applied the spousal-victim exception, the communication at issue was the threat (i.e., crime) itself. This distinction is important. There is a difference between statements: "I am going to kill you" and "Honey, I tried to kill you." The former is a threat. The latter is a confession. A threat is made to invoke fear. A confession is made to facilitate reconciliation. Where there is a threat, certainly a defendant should not be able to claim this privilege because it would be to allow a defendant to exempt the crime itself from evidence. But when there is a confession by one spouse to another, the privilege ought to guard those communications as inherent to protecting and supporting the marital relationship. [¶23] In this case, the Defendant's statements are circumstantial evidence of the crime. The Defendant did not make an admission he ignited the fire. He does make an admission to pouring the gasoline on the home, but that admission is not itself a crime against Cooke. There are more avenues to pursuing prosecution in this case than the admission made by the Defendant.
[¶24] Asking the Court to exempt the marital communications privilege when one spouse confesses an act while seeking forgiveness is tantamount to the United States asking the Court to exempt the sacred privilege attached to communications between priest and penitent. See, e.g., Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) ("The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return."); 1983 CODEX IURIS CANONICI , Can. 983, § 1 ("The sacramental seal [of Confession] is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.").
[¶25] Certainly, Cooke will not be prohibited from testifying about what she saw, what she thought, or other communications with the Defendant that occurred not in confidence. Rather, in this regard, Cooke will not be allowed to testify only to the statements the Defendant made in confidence to Cooke, including that he poured gasoline throughout the house. Importantly, the Defendant does not seek to exclude statements the Defendant made in the vehicle when he did not know she was present. The Court agrees that exclusion would sweep too broadly under the marital communications privilege. As it stands, however, the communications made between the Defendant and Cooke made in confidence will not be admissible in this case.
[¶26] The United States, in its brief, contends the statement should be admissible because Cooke was the victim of the arson. See Smith, 533 F.2d at 1078-79 (holding adverse spousal testimony privilege gives way when spouse is victim of the alleged crime). At the hearing, however, Special Agent Hill testified Cooke and the Defendant had no discernable personal effects in the home. Doc. No. 109, pp. 78-79 (noting no photographs, clothing, or other property of Cooke or the Defendant left in the home). On the record before the Court, because Cooke had no property in the home and the home was owned by Veronica Serdahl, Cooke was not a victim of the arson. Accordingly, the spousal-victim exception does not apply under these circumstances and the confidential marital communications applies.
[¶27] The United States also contends the statements should be admissible under the "partners in crime" exception because Cooke became an accessory after the fact. The Defendant argues the partners in crime exception does not apply because the Eighth Circuit has limited the exception to communications that involve "patently illegal activity." See, e.g., United States v. Evans, 966 F.2d 398 (8th Cir. 1992). The Defendant contends pouring gasoline throughout the house is not "patently illegal."
[¶28] The Court does not need to reach the issue of whether pouring gasoline throughout the house is patently illegal. The United States argues Cooke conspired with the Defendant after the fact by providing money and transportation. The marital communication at issue here occurred before Cooke purportedly joined the Defendant as an accessory after the fact. The Eighth Circuit has explained:
A widely accepted exception to the marital confidential communications privilege "permits witness-spouse testimony about confidential communications involving future or ongoing crimes in which the spouses were joint participants at the time of the communications. " 2 Weinstein's Evidence 505-36 (1991). The rationale for the "partners in crime" exception is compelling. We protect confidential marital communications in order to "encourage the sharing of confidences between spouses." Id. at 505-28. Where the communications involve the spouses' joint criminal activity, however, the interests of justice outweigh the goal of fostering marital harmony.
Evans, 966 F.2d at 401 (first emphasis in original; second emphasis added). Where the confidential communication occurred before the joint criminal enterprise, the Seventh Circuit's analysis in United States v. Westmoreland is instructive. 312 F.3d 302 (7th Cir. 2002) In that case, the Seventh Circuit held:
The initial disclosure of a crime to one's spouse, without more, is covered by the marital communications privilege. If the spouse later joins the conspiracy, communications from that point certainly should not be protected. This distinction is consistent with the purpose of the marital communications privilege. As one treatise has suggested, further expansion of the partners-in-crime exception to the marital privilege could "eventually reduce the marital communications privilege to a hollow shell." 25 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5601 (9189).
Westmoreland, 312 F.3d at 308.
[¶29] Even if Cooke became an accessory after the fact, the Defendant's confession to Cooke that he poured gasoline throughout the house occurred prior to Cooke allegedly aiding the Defendant. Such statements are essentially the "initial disclosure of a crime to one's spouse." Id. Only after the initial disclosure did Cooke engage in allegedly aiding the Defendant by providing him with money and a ride back to North Dakota. Accordingly, even assuming Cooke became a co-conspirator with the Defendant after the fact, the initial disclosure is nevertheless still covered by the confidential marital communications privilege and shall be excluded.
CONCLUSION
[¶30] Accordingly, when balancing the policy considerations of the confidential marital communications privilege with the need to find the truth in the criminal justice system, the Court, based on its reason and experience, concludes that the marital communications privilege attaches in this case. The Defendant's Motion is GRANTED .
[¶31] IT IS SO ORDERED.