FOR IMMEDIATE RELEASE
NEWS RELEASE
October 6, 2011
For More Information, contact:
Luther Strange
Joy Patterson (334) 242-7491
Alabama Attorney General
Suzanne Webb (334) 242-7351
Page 1 of 1
AG ANNOUNCES THAT COURT UPHOLDS CONVICTION
FOR MURDER IN JACKSON COUNTY
(MONTGOMERY)–Attorney General Luther Strange announced that the
Alabama Court of Criminal Appeals on Friday upheld the murder conviction of
Michael Craft. Craft, 54, of Scottsboro, was convicted in the Jackson County Circuit
Court in February of 2010 for the murder of Bobbie Edwards.
The following evidence was presented at trial: In May of 1993, Craft killed the
victim, Bobbie Edwards by shooting her in the neck at an abandoned house in the
Hollywood area of Jackson County. Craft’s then-wife testified that in 1993, Craft told
her he had killed Edwards and that Craft forced her to carry Edwards’ body to a well
close to this house where Craft dumped Edwards’ body in the well. Police recovered
Edward’s body from the well a few months later. In 2008, Craft told a casual
acquaintance that he had killed a girl in the Hollywood area and had dumped her body
in a well. Other witnesses came forward who later testified at the trial, including a co-
worker of Craft’s who Craft had told in 1994 that Edwards was dead, in a well, and
would never be found; and Craft’s now-ex wife who was now allowed to testify that
she was forced by Craft to help transport Edwards’ body to the well.
The case was prosecuted at trial by Jackson County District Attorney Charles R.
Rhodes’ office. Craft was sentenced to 60 years’ imprisonment and subsequently
sought to have his conviction reversed on appeal.
The Attorney General’s Criminal Appeals Division handled the case during the
appeals process, arguing for the Alabama Court of Criminal Appeals to affirm the
conviction. The Court did so in a decision issued on Friday, September 30th.
Attorney General Strange commended Assistant Attorney General James Prude of the
Attorney General’s Criminal Appeals Division for his successful work in this case.
*For additional information regarding this case, a copy is attached of the memorandum opinion
of the Alabama Court of Criminal Appeals.
–30–
501 Washington Avenue Montgomery, AL 36104 (334) 242-7300
www.ago.alabama.gov REL: 09/30/2011
Notice: This opinion i s subjec t to formal revision before publication i n th e advanc e
sheets of Southern Reporter. Readers are requeste d to notif y the Reporte r of Decisions ,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographica l or othe r errors, i n orde r that corrections may be made
before the opinio n i s printe d i n Souther n Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2010-2011
CR-09-0980
Michael Craft
v.
State of Alabama
Appeal from Jackson Circuit Court
(CC-08-400)
BURKE, Judge.
Michael Craft appeals his convictio n for murder, a
violatio n of ß 13A-6-2, Ala. Cod e 1 975 , and hi s resulting
sentence of 6 0 year s i n prison . We affirm Craft’s conviction
and sentence. CR-09-0980
Facts and Procedural History
Because Craft does not challenge the sufficiency of the
evidence on appeal, the followin g brie f rendition of the facts
wil l suffice:
Bobbie Edwards was reported missing by her mother on May
8, 1993. (R. 858-60.) Clarence Bolte, a polic e investigator,
testifie d that on March 22, 1994, he received information from
Cheryl Johnson that Edwards’s body was in a wel l located at an
ol d abandoned house i n Hollywood , Alabama. (R. 1004-06, 1027.)
The police discovered a substantially decomposed body in the
well . Dr. Joseph Embry, the forensic pathologist and the
stat e medical examiner fo r th e Alabama Department of Forensic
Sciences, performed the autopsy on the body, and he concluded
that the cause of death was a gunshot wound to the neck. Dr.
Embry removed a bulle t from the body, labeled it , seale d it ,
and sent i t t o Brent Wheeler, a firearms and toolmark examiner
i n Huntsville. (R. 1406.) Wheeler received the bullet and
examined it . (R. 1131, 1136-37.) Wheeler also had received a
.380 Winchester brand fired cartridge case from Ed White, who
was also an employee of the Alabama Department of Forensic
2 CR-09-0980
Sciences. (R. 1142-43.) That spent casing had been recovered
from a closet at the abandoned house. (R. 1050-51.)
Judit h Jones, who was married to Craft from October 1989
to November 1996, testified to facts that implicated Craft i n
Edwards’s murder. (R. 928.) Jones testified that Craft told
her that he killed Edwards. Jones further testified that
Craf t made her go to the abandoned house with him and help him
drag Edwards’s body to the well. (R. 931-41.) Jones knew
Edwards because Craft had been married to Edwards’s mother.
(R. 929.) Jones testified that before she ever spoke to law
enforcement about Edwards’s death, she had spoken about the
matter with Cheryl Johnson, who was Jones’s coworker and the
person who initially contacted the police. (R. 946.)
Anthony Southeard, who worked with Craft at a small-
engine business i n 1994, testified that he saw Craft with a
.380 caliber pistol in 1994. (R. 1325.) Southeard also
testifie d that he heard Craft say that Edwards “was dead and
gone in a well and wouldn’t be found.” (R. 1326.)
In 2000, investigators received a gun that evidence
indicate d was previously owned by Craft. After testing the
3 CR-09-0980
gun, i t was determined that the bulle t found i n th e body found
i n the wel l had been fired from the gun. (R. 1520.)
Kenneth Jordan, who knew Craft as a casual acquaintance,
testifie d that in th e summer of 2008, Craft approached him i n
a grocery store and tol d him about a gir l he had killed . (R.
1551-52.) Craft told Jordan that he had killed the girl
because she was on drugs and wanted him to kil l her. (R.
1552.) Craft told Jordan that the killin g happened at an ol d
house i n Hollywood . (R. 1552.) Craft told Jordan that he left
the girl’s body i n th e house and intended to go back and burn
the house, but he decided to cut up her body and place i t i n
a wel l instead. (R. 1553.) Craft also told Jordan that he had
already served time in priso n for th e killin g that he was
describing . (R. 1552.) Jordan testified that he di d no t know
anything about Edwards’s disappearance when he and Craft had
thi s conversation. (R. 1552.)
Craf t was indicted fo r Edwards’ s murder on September 17,
- (C. 36, 134.) Craft’s tria l began on February 8, 2010,
and the jur y found Craft guilty of murder on February 19, - On March 26, 2010, Craf t was sentenced to 60 years i n
prison .
4 CR-09-0980
On April 15, 2010, Craft filed his notic e of appeal to
thi s Court. (C. 294.) On Apri l 16, 2010, Craf t filed a motion
fo r a new trial. (C. 298.) On May 5, 2010, the tria l court
denied Craft’s motion for a new trial , stating:
“[Defense counsel], ther e are multipl e issues in
thi s case, and i t may very well be reversed on any
one of them or any combination of them. I t may not
be. We’ll see. It’ s a very complicated case
occasioned at least partially by the long delay
between the death, discovery of the body, and the
trial . I think it’s fai r to say, fo r what it’ s
worth, this i s probabl y in the nature of editorial
comment, but it’ s fai r to say that i t probabl y has
more vexing legal issues i n i t tha n al l o f the other
cases I have tried to a jury. Fertile ground for a
defendant’s appellate attorne y unlike so many cases
that we see that are appealed.
“Nonetheless, that is the province of the
appellat e court to review those after i t leave s this
court. Your motions and your grounds are noted. You
have done a very diligent job fo r you r client as you
and your co-counsel did throughout the trial . But
your motions are denied.”
(R. 1938-39.)
Discussio n
I.
First , Craft alleges that the admission of Brent
Wheeler’s testimony through a videotaped deposition violated
Craft’ s right of confrontation under the Sixt h Amendment to
5 CR-09-0980
the United States Constitution.1 Specifically, Craft alleges
that the State did not prove that Wheeler was unavailable to
testif y at trial, as required by Crawford v. Washington, 541
U.S. 36 (2004).
In Crawford, the United States Supreme Court held that an
out-of-cour t testimonial statement by a witness is barred
under the Confrontation Clause, unless the witness is
unavailabl e and the defendant had a prior opportunity to
cross-examine the witness. 541 U.S. at 59. This Court reviews
a tria l court’s determination on the issue of availability of
the witness for an abuse of discretion. Pilley v. State, 930
So. 2d 550, 560-61 (Ala. Crim. App. 2005).
Initially , it does not appear that Craft’s claim is
preserved for appellate review because he never specifically
objected to the admission of Wheeler’s testimony on the ground
that the State had not shown that Wheeler was unavailable to
testif y at trial as required by Crawford and, thus, that
Wheeler’s videotaped deposition testimony violated Craft’s
righ t of confrontation under the Sixth Amendment. In Watson
1At trial, the State stated that Wheeler’s testimony was
essentia l to establishing the chain of custody for certain
evidence. (R. 407-09, 414-15, 467-68.)
6 CR-09-0980
v. State, 875 So. 2d 330 (Ala. Crim. App. 2003), this Court
held :
“‘The trial court must be apprised of th e basi s
fo r the objectio n with sufficient particularity to
allow an informed decision to be made on the
particula r legal issue involved.’ Bland v. State,
395 So. 2d 164, 168 (Ala. Crim. App. 1981). See also
Finch v. State, 715 So. 2d 906, 911 (Ala. Crim. App.
1997). Moreover, ‘[a]n objection based on a specific
ground “waives al l othe r grounds not specified , and
the trial court will not be put i n erro r for ground s
not assigned at trial.” ‘ Tuohy v. State, 776 So. 2d
896, 901 (Ala. Crim. App. 1999) (quoting Glass v.
State, 671 So. 2d 114, 120 (Ala. Crim. App. 1995)).
‘Review by thi s court i s limite d to matter s properly
raise d before the tria l court.’ Owens v. State, 825
So. 2d 861, 863 (Ala. Crim. App. 2001).”
875 So. 2d at 332.
In the presen t case, after the tria l had begun, the State
informed the tria l court that i t had receive d a communication
from Wheeler stating that his wif e had fallen and that the
fal l caused her to break her arm and to develop some dental
problems. As a resul t of th e fall , Wheeler’s wife was on pain
medication and could not dress herself or drive. The
communication further stated that Wheeler was the onl y person
availabl e to driv e hi s wif e and perfor m other needed tasks and
that he did not believe that he could leave her alone.
Wheeler stated that he di d no t believ e that he could attend
7 CR-09-0980
the trial, but he suggested that he could give his testimony
by deposition. The State informed the trial court that
Wheeler lived in Opelika, and the trial court noted that
Opelika was 200-250 miles from Scottsboro, the location of the
trial . Based on this information, the State moved to continue
the trial until Wheeler could testify at trial. Craft
objected to the continuance, and the trial court denied the
motion but indicated that it wanted to see how Wheeler’s
situatio n developed over the next few days. (R. 412.)
A few days later, the State renewed its motion to
continue the case until Wheeler was available to testify at
trial , and, again, Craft objected to the continuance. (R. 465¨
66.) Craft also objected to Wheeler’s testimony being taken
by deposition. (R. 470-76.) Specifically, Craft objected to
the propriety of taking the deposition on the ground that the
takin g of Wheeler’s deposition would violate various
requirements of Rule 16.6, Ala. R. Crim. P., which provides
procedura l rules governing the taking of a deposition and it s
use at trial. Craft’s objection did not mention Crawford or
hi s rights under the Confrontation Clause of the Sixth
Amendment. The trial court again denied the motion to
8 CR-09-0980
continue, but the tria l court granted the motion to take
Wheeler’s testimony by deposition. (R. 476-77.) The
depositio n was scheduled fo r th e nex t day, an d th e tria l court
ordered that Craft be transported to th e depositio n so tha t he
could confront Wheeler. (C. 234.) However, Craft waived hi s
righ t to be present at the deposition . (C. 257.) During the
deposition , Wheeler was cross-examined by defense counsel.
When the State offered Wheeler’s videotaped deposition
testimony for admission at trial, Craft made a general
objectio n “under confront and cross examine grounds and also
under Rule 16.6 ” (R. 1125.) At that time, neither
Crawford nor Wheeler’ s availability was mentioned. The trial
court overruled the objection without mentioning Wheeler’s
availability .
This Court concludes that when Wheeler’s videotaped
depositio n testimony was offered for admissio n at trial , the
tria l court was not specificall y called upon to decid e whether
Wheeler was availabl e fo r tria l in th e contex t of Crawfor d and
the Sixth Amendment’s Confrontation Clause. We wil l not pu t
the trial court in erro r on a ground that was not specificall y
9 CR-09-0980
presented to i t a t trial . Therefore, we hold that this claim
i s not preserved for ou r review.
Moreover, contrary to Craft’s allegation, to the extent
that i t ca n be implied that the tria l court found that Wheeler
was unavailable to testif y at tria l and to the extent that
that finding was preserved for appellat e review, we conclude
that the tria l court did no t abuse it s discretion . “In order
to show unavailability, the State must show that i t ha s made
a ‘good-faith effort’ to secure the witness’s testimony at
trial. ” Withee v. State, 728 So. 2d 684, 686 (Ala. Crim . App.
1 998) (citing Ohio v. Roberts, 448 U.S. 56, 74 (1 980) ,
abrogated on other grounds by Crawford). The United States
Supreme Court has set forth certain general propositions
concerning the applicatio n of the good-fait h test:
“The law does not requir e the doing of a futile
act. Thus, if no possibility of procuring the
witness exists (as, for example, the witness’
intervenin g death), ‘good faith’ demands nothing of
the prosecution. But i f there is a possibility,
albei t remote, that affirmative measures might
produce the declarant , the obligatio n of good faith
may demand their effectuation. ‘The lengths to which
the prosecution must go to produce a witness … i s
a question of reasonableness.’ California v. Green,
399 U.S., at 189, n.22 (concurring opinion, citing
Barber v. Page, [390 U.S. 719 (1968)]). The ultimate
question is whether the witness is unavailable
10 CR-09-0980
despit e good-faith efforts undertaken prior to trial
to locate and present that witness.”
Roberts, 448 U.S. at 74 (emphasis in the original).
Therefore, the good-faith test is clearly fact dependent.
In the present case, Craft alleges that the State’s
action s were not reasonable because Wheeler testified during
hi s deposition that “he would have presented himself at trial
i f he had been subpoenaed.” Craft’s brief, at 21.
Specifically , Wheeler testified, as follows:
“[Prosecutor] : And one last follow-up based on
[defense counsel’s] question: Your inability to be
i n Scottsboro for the testimony was not based on
your refusal to come in response to a subpoena, was
it *
“[Wheeler]: That’s correct.
“[Prosecutor] : There were other factors that kept
you from coming to Scottsboro*
“[Wheeler]: Yes, sir, that’ s correct. And I really
appreciate the trouble that your group has gone to
to do this for me under the circumstances that I’m
involve d with. But I — I understand the power of
the subpoena, and I understand I have knowledge of
the case. And I would be wherever I needed to be at
beck and call, but I also understand that you from
my years of testimony, that everybody tries to work
out the situations with scheduling and that type of
thing . And I appreciate the situation that y’all
have done here.”
11 CR-09-0980
(R. 1169-70.) Earlier, defense counsel had asked Wheeler
whether he would have “come up to Huntsvill e under subpoena,”
and Wheeler answered: “Yes, sir. ” (R. 1165-66.)
Although Wheeler acknowledged the powe r of a subpoena and
showed a desire to make clear that he had not refused to
comply with a subpoena, Wheeler continued to maintain that
there were other factors that prevented him from attending the
tria l at the present time. Contrary to Craft’s apparent
belief , to show the unavailabilit y of a witness no Alabama or
Federal caselaw requires the State to always subpoena the
witness or t o prov e that the witness’ s attendance at tria l i s
impossible . The State i s onl y required to make a reasonable
good-fait h effort to present the witness at trial . In th e
present case, the Stat e intended to presen t Wheeler at trial ;
he informed the State that he could not attend trial at th e
scheduled time because he was the onl y person who could care
fo r his injure d wife and the distanc e to the locatio n of th e
tria l was great; the State then made a legitimate effort to
present Wheeler at tria l by moving fo r a continuance until he
would be able to testif y at trial ; Craft objected to that
continuance, and the tria l court agreed with Craft not t o
12 CR-09-0980
continue the trial . We conclude that, to th e exten t that the
tria l court was asked to determin e Wheeler’s availability fo r
trial , the tria l court di d no t abuse it s discretio n i n findin g
that the Stat e made a reasonable good-faith effort to presen t
Wheeler at trial.
Furthermore, “violations of the Confrontatio n Claus e are
subject to harmless-erro r analysis. ” Smith v. State, 898 So.
2d 907, 917 (Ala. Crim . App. 2004). Rule 45, Ala . R. App. P.,
provides :
“No judgment may be reversed or se t aside , nor
new trial granted i n any civi l or crimina l case on
the ground of misdirectio n of the jury , the giving
or refusal of special charges or the improper
admission or rejectio n of evidence , nor fo r erro r as
to any matter of pleading or procedure, unless i n
the opinion of the court to which the appeal i s
taken or applicatio n is made, after an examination
of the entir e cause, i t shoul d appear that the error
complained of has probably injuriously affected
substantia l rights of the parties. “
“[B]efore a federal constitutional error can be held
harmless, the cour t must be able to declar e a belie f that i t
was harmless beyond a reasonable doubt.” Chapman v.
California , 386 U.S. 18 (1967).
In the present case, Craft had the opportunity to
confront and t o full y cross-examine Wheeler at th e videotape d
13 CR-09-0980
deposition . The jury was able to observe Wheeler’s demeanor
on the video. Craft was unwilling to continue the case to
allow Wheeler to attend trial. Craft has not stated how the
outcome of the examination of Wheeler would have been
differen t i f Wheeler would have been present at trial. Craft
fail s to state what, i f any, evidence he was unable to explore
or respond to because Wheeler was not present at trial.
Therefore, we conclude that any error was harmless beyond a
reasonable doubt.
II .
Next, Craft alleges that the trial court erred in
admittin g into evidence the bullet from the victim’s body, a
cartridg e casing, and the gun because, he says, the State did
not establish a proper chain of custody. Specifically, Craft
alleges :
“As shown in Issue I, it was harmful error
violatin g Defendant Craft’s Constitutional right to
confront and cross-examine witnesses to allow Mr.
Wheeler’s deposition testimony to be submitted to
the jury as evidence. Without Mr. Wheeler, the
State has a missing link in it s chain of custody and
i t was erroneous to admit any evidence regarding the
bulle t and cartridge casing. Likewise, without the
bulle t and cartridge casing, it was error to admit
any evidence regarding the gun as there is no link
or relevance of the gun i f i t cannot be connected to
the bullet and/or cartridge casing.”
14 CR-09-0980
Craft’ s brief, at 26-27 (footnotes omitted).
Craft’ s entire chain-of-custody argument i s base d on hi s
allegatio n that the admission of Wheeler’s deposition
testimony was in error. We throughly addressed that
allegatio n in par t I and found that there was no reversibl e
erro r in the admission of Wheeler’s testimony. Therefore,
Wheeler was not a missing link in th e chai n of custody and,
thus, Craft’s argument i s withou t merit.
III .
Next, Craft alleges that the trial court committed
reversibl e error by allowing Judith Jones, Craft’s former
wife , to testif y as t o certai n communications made by Craf t t o
Jones during their marriage. Specifically, Craft alleges that
the trial court erred in holding that the husband-wife
privileg e did no t apply to those communications.
Rule 504, Ala . R. Evid., provides:
“(a) Definition of ‘confidential ‘ communication.
A communication is ‘confidential’ i f i t i s made
during marriage privately by any person to that
person’s spouse and i s no t intended for disclosur e
to any other person.
“(b) General rule of privilege . In any civi l or
crimina l proceeding, a person has a privilege to
refuse to testify , or to prevent any person from
15 CR-09-0980
testifying , as to any confidential communication
made by one spouse to the other during the marriage.
“(c) Who may claim the privilege . The privilege
may be claimed by either spouse, the lawyer for
eithe r spouse in that spouse’s behalf, the guardian
or conservator of either spouse, or the personal
representativ e of a deceased spouse. The authority
of those named to claim the privilege in the
spouse’s behalf is presumed in the absence of
evidence to the contrary.
“(d) Exceptions. There is no privilege under this rule:
“(1) PARTIES TO A CIVIL ACTION. In any civil
proceeding in which the spouses are adverse parties.
“(2) FURTHERANCE OF CRIME. In any criminal
proceeding in which the spouses are alleged to have
acted jointly in the commission of the crime
charged.
“(3) CRIMINAL ACTION. In a criminal action or
proceeding in which one spouse is charged with a
crime against the person or property of (A) the
other spouse, (B) a minor child of either, (C) a
person residing in the household of either, or (D)
a third person i f the crime is committed in the
course of committing a crime against any of the
persons previously named in thi s sentence.”
In the present case, Jones was allowed to testify that,
i n May 1993, while she was married to Craft, he told her that
he killed Bobbie Edwards and that he wanted her to go with him
to the abandoned house where Edwards’s body was located. (R.
931-33.) Jones testified that Craft told her that i f she did
not go to the abandoned house with him, “he could do me like
16 CR-09-0980
he did Bobbie, ” and he showed her a gun. (R. 931.) Jones
furthe r testified that, after arriving at th e abandoned house,
Craf t showed her Edwards’s body i n one of the closet s of th e
house and that she helped him drag the body out of the house
and dump i t int o a nearby well. (R. 935-36, 940-41.) Craft
tol d Jones not to say anything to anyone concerning what
happened to Edwards. (R. 944.)
In explaining the “furtheranc e of crime” exception to th e
husband-wife privilege , the Advisor y Committee’s Notes to Rule
504 state:
“Any inter-spousal communication falls outside
the privilege i f i t i s made in furtherance of a
crime in which both spouses are engaged. As under
the attorney-client privilege, communications in
furtherance of crimina l activity are no t immune from
disclosure . Compare Ala. R. Evid. 502(d)(1).
“This rule i s consisten t with preexisting case
law adopting an exception to the husband-wife
privileg e for communications between spouses
relatin g to crimes in which they are jointly
participatin g when the communications occur. State
v. Browder, 486 So. 2d 504 (Ala. Crim. App. 1986).
This exception applies only to communications that
are in furtherance of, or pertain to, the crime
charged. The communications are nonprivileged , even
i f the testifyin g spouse’s only involvement in th e
crime charged i s as an accessory after the fact . See
United States v. Mendoza, 574 F.2d 1373 (5th Cir.) ,
cert . denied, 439 U.S. 988 (1978).”
17 CR-09-0980
The situation in Stat e v. Browder, 486 So. 2d 504 (Ala .
Crim. App. 1986), cited i n th e Advisor y Committee’s Notes, was
very similar to the situation in the present case. In
Browder, the husband of the defendant testified that before
the victim was killed, the defendant told him that she was
going to kil l the victim . The husband told her “not t o do it”
and to “forget about it. ” Two days later, the husband was i n
the hospital when the defendant entered hi s privat e room and
tol d him that she had kille d the victim . Later that same day,
whil e traveling from the hospital to their residence, the
defendant instructed the husband to turn down a small side
road, where the defendan t retrieved her jacke t and pisto l from
some bushes. The husband helped the defendan t burn the jacket
and dispose of the pistol . Browder, 486 So. 2d at 505. This
Court was asked to decide whether the marital-communication s
privileg e applied to communications made after the husband
activel y participated in the destructio n and concealment of
physica l evidence of the crime. We held:
“The confidential communications privilege i s
based on the premis e of preservatio n of the family.
‘The privilege for confidential marital
communications is though t to do this by encouraging
the spouses to be frank and open with each other by
protectin g marital privacy.’ United States v. Van
18 CR-09-0980
Drunen, 501 F.2d 1393, 1396 (7th Cir.), cert.
denied, 419 U.S. 1091, 95 S. Ct. 684, 42 L. Ed. 2d
684 (1974) (citing United States v. Kahn, 471 F.2d
191, 194 (7th Cir. 1972 ), cert. denied, 411 U.S.
986, 93 S. Ct. 2271, 36 L. Ed. 2d 964 (1973), rev’d
on other grounds, 415 U.S. 143, 94 S. Ct. 977, 39 L.
Ed. 2d 225 (1974). The Seventh Circuit in Kahn and
Van Drunen has adopted an exception to the
confidentia l communications privilege by concluding
that ‘the public interest in preserving the family
was not enough to justify protecting conversations
i n furtherance of crimes joined by both spouses
Van Drunen, 501 F.2d at 1396.
“In United States v. Mendoza, 574 F.2d 1373 (5th
Cir.) , cert. denied, 439 U.S. 988, 99 S. Ct. 584, 58
L. Ed. 2d 661 (1978), the Fifth Circuit examined the
policie s underlying the confidential communications
privileg e in conjunction with the exception to the
rul e established i n the Seventh Circuit (which the
5th Circuit viewed as being adopted by the Second
Circui t in United States v. Cotroni, 527 F.2d 708
(2d Cir. 1975), cert. denied, 426 U.S. 906, 96 S.
Ct. 222 6, 48 L. Ed. 2d 830 (1976)). The Mendoza
court stated:
“‘Accordingly , we have weighed the need for
trut h against the importance of the policy
sought to be furthered by the privilege,
and considered the likelihood that
recognizin g the privilege in the factual
settin g of this case will in fact further
that policy, and, i f so, how much The
resul t is that this Court is now convinced
that the rule of the Second and Seventh
Circuit s strikes the proper balance between
domestic tranquility and the public
interes t therein, on the one hand, and the
revelatio n of truth and attainment of
justice , which also are in the public
interest , on the other. Therefore, we hold
that conversations between husband and wife
19 CR-09-0980
about crimes in which they are jointly
participatin g when the conversation s occur
are not marital communications for th e
purpose of th e marita l privilege, and thus
do not fall within the privilege’s
protectio n of confidential marital
communications.’
“Other federal and state courts have consistently
hel d that spousal communications pertaining to
crimina l activities, in which both spouses
participat e actively, or i n whic h they participate
i n the fruit s of th e crim e or i n th e coverin g up o f
the crime, are not protected by the confidential
communications privilege . United States v. Kapnison,
743 F.2d 1450 (10th Cir. 1 984) , cert. denied, 471
U.S. 1015, 105 S. Ct. 2017, 85 L. Ed. 2d. 299
(1985); United States v. Neal, 743 F.2d 1441 (10th
Cir . 1984), cert. denied, 470 U.S. 1086, 105 S. Ct .
1848, 85 L. Ed. 2d 146 (1985); United States v.
Archer, 733 F.2d 354 (5th Cir.), cert. denied, 469
U.S. 861 105 S. Ct. 196, 83 L. Ed. 2d. 128 (1984);
United States v. Broome, 732 F.2d 363 (4th Cir.) ,
cert . denied, 4 69 U.S. 855, 105 S. Ct. 181, 83 L.
Ed. 2d 116 (1984); United States v. Ammar, 714 F.2d
238 (3d Cir.) , cert. denied, 464 U.S. 936, 104 S.
Ct. 344, 78 L. Ed. 2d 311 (1983); United States v.
Entrekin , 624 F.2d 597 (5th Cir . 1 980 ), cert.
denied, 451 U.S. 971, 101 S. Ct. 2049, 68 L. Ed. 2d
3 5 0 (19 81) ; United States v. Price, 577 F.2d 1356
(9th Cir. 1978), cert. denied, 439 U.S. 1068, 99 S.
Ct. 835, 59 L. Ed. 2d 33 (1979); Gill
v.
^ “I A r-i r.-i O/IO /T7-_ -iri/^/l- r-ij__j
Commonwealth, 374 S.W.2d 848 (Ky. 1964); State
v.
Smith, 384 A.2d 687 (Me. 1978); Gutridge v. State,
236 Md. 514, 204 A.2d 557 (1964). These cases stand
fo r the proposition that ‘marital communications
having to do with the commissio n of a crime and no t
wit h the privac y of th e marriag e itself do not fal l
withi n the privilege’ s protection.’ Mendoza, 574
F.2d at 1380 .
20 CR-09-0980
“A thorough study of the marital privilege , it s
history , present status, and predicted future is
contained in Glenn, Deconstruction of the Marital
Privilege , 12 Pepperdine L. Rev. 723 (1985). In this
article , discussing criminal communications, the
author notes, ‘Such communications are con
