Wilson v. State

Darrayl John Wilson v. State of Maryland, No. 436, September Term 2018. Opinion by
Beachley, J.

SPOUSAL PRIVILEGE—SHAM MARRIAGES

WITNESS TAMPERING AND OBSTRUCTION OF JUSTICE—CORRUPT
MEANS

Defendant confessed to his girlfriend that he was responsible for a murder.
Girlfriend subsequently informed the police, and defendant was charged with that murder.
While awaiting the murder trial, defendant attempted to marry girlfriend via a telephone
call so that she could invoke her spousal privilege and avoid being compelled to testify
against him in defendant’s pending murder trial.

In response to defendant’s purported marriage to his girlfriend, the State charged
defendant with “corrupt means” witness tampering and obstruction of justice—namely for
seeking to silence the girlfriend’s testimony. A jury convicted defendant of witness
tampering and obstruction of justice, and defendant appealed.

Held: Judgment reversed. The prevailing rule throughout the country is to allow a
spouse to invoke the spousal privilege regardless of the reasons for the marriage—
including for the sole purpose of silencing a potential witness. Prior Maryland cases
acknowledged the prevailing rule, but it is now expressly adopted.

In light of adopting the prevailing rule, there can be no “corrupt means” witness
tampering or obstruction of justice for simply endeavoring to invoke a legally recognized
evidentiary privilege.
Circuit Court for Charles County
Case No. C-08-CR-17-000048

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 436

September Term, 2018

DARRAYL JOHN WILSON

v.

STATE OF MARYLAND

Berger,
Friedman,
Beachley,

JJ.

Opinion by Beachley, J.

Filed: July 30, 2019

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2019-07-30 13:30-04:00

Suzanne C. Johnson, Clerk
On June 30, 2017, the State charged appellant Darrayl Wilson, by way of

indictment, with two counts of obstruction of justice and two counts of witness tampering.

In the indictment, the State alleged that appellant “did by corrupt means” try to impede,

influence, and obstruct Kearra Bannister from testifying against him by seeking to marry

her. On January 18, 2018, a jury sitting in the Circuit Court for Charles County convicted

appellant of one count of obstruction of justice and one count of witness tampering. The

court sentenced appellant to twenty years’ incarceration, all but three-and-a-half years

suspended, for witness tampering, and a concurrent three-and-a-half-year sentence for

obstruction of justice. Appellant timely appealed and presents the following two issues for

our review:

1. Was the evidence sufficient to convict appellant of “corrupt means”
witness tampering and “corrupt means” obstruction of justice?

2. Does the sentence for witness tampering merge into the sentence for
obstruction of justice?

We conclude, as a matter of law, that appellant’s actions do not constitute “corrupt

means” as contemplated by the crimes of witness tampering and obstruction of justice.

Accordingly, we vacate appellant’s convictions, and need not decide the merger issue.

FACTUAL AND PROCEDURAL BACKGROUND

In August of 2011, Crystal Anderson’s mother reported her missing. Unfortunately,

in January 2012, Ms. Anderson’s body was discovered in Nanjemoy, Maryland, near Purse

State Park. The police investigation into Ms. Anderson’s death continued for several years.
On August 20, 2014, Charles County patrol officers responded to a “domestic

assist” call in Nanjemoy. When the officers arrived, they made contact with Ms. Bannister,

who indicated that she had information concerning Crystal Anderson’s death. Detective

Brian1 Buchanan interviewed Ms. Bannister that day and recorded the interview. Ms.

Bannister told Detective Buchanan that appellant and another man, Raymond Posey, III,

shot and killed Ms. Anderson.2 Ms. Bannister explained that, at the time of Ms. Anderson’s

murder, she was dating appellant, and that appellant told her about the murder. Ms.

Bannister also told Detective Buchanan that she observed appellant and Mr. Posey selling

and giving away Ms. Anderson’s possessions following her disappearance.

In 2015, the State indicted both appellant and Mr. Posey for crimes related to Ms.

Anderson’s death.3 Following his indictment for Ms. Anderson’s murder, appellant

remained incarcerated in the Charles County Detention Center. From December 2016

through February 2017, appellant engaged in numerous telephone conversations with

various individuals discussing his intention to marry Ms. Bannister before the State could

compel her to testify against him and Mr. Posey in their respective murder trials. These

1
Detective Buchanan did not provide his first name while on the witness stand at
appellant’s trial. Consequently, we use the name “Brian” because the prosecutor identified
him as “Detective Brian Buchanan” in opening statements.
2
Ms. Bannister could not remember whether appellant told her that he personally
shot Ms. Anderson. In her recorded statement, she indicated that “they”—both appellant
and Mr. Posey—shot and killed Ms. Anderson.
3
The State indicted Mr. Posey in February 2015, and appellant in June 2015.

2
efforts culminated in appellant “marrying” 4 Ms. Bannister over the telephone on February

9, 2017, three days after the State’s murder trial against Mr. Posey had begun, but before

Ms. Bannister was called to testify as a State’s witness in that trial.

On February 13, 2017, Ms. Bannister took the witness stand in the State’s

prosecution of Mr. Posey. During the State’s direct examination, the prosecutor asked Ms.

Bannister questions about appellant, and Ms. Bannister responded by stating that she

wished to invoke her newly-acquired spousal privilege. Presumably, Ms. Bannister sought

to invoke Md. Code (1973, 2013 Repl. Vol.), § 9-106(a) of the Courts and Judicial

Proceedings Article (“CJP”), which generally provides that the spouse of a person on trial
5
for a crime may not be compelled to testify as an adverse witness. The trial judge

responded that Ms. Bannister held no such privilege and required her to answer the

prosecutor’s questions.

Following Mr. Posey’s trial, the State filed a Motion to Preclude Assertion of

Spousal Privilege in appellant’s own murder case. In an order dated July 10, 2017, the

circuit court granted the State’s motion, ruling that appellant’s marriage to Ms. Bannister

was invalid. Appellant appealed that decision to our Court, and in an unreported opinion,

4
The “marriage ceremony” took place over the telephone via a conference call, with
a pastor from New Jersey officiating. Ms. Bannister called in from her workplace while
appellant called from the detention center. As we shall explain, because we hold as a matter
of law that appellant’s apparent efforts to take advantage of the spousal privilege do not
constitute the “corrupt means” contemplated by the witness tampering and obstruction of
justice statutes, we need not decide whether this ceremony constituted a valid marriage in
Maryland.
5
The privilege is subject to certain exceptions that do not apply here.

3
Wilson v. State, No. 1122, Sept. Term, 2017 (filed June 18, 2018), a panel of this Court

dismissed the appeal, holding that appellant not only lacked standing, but that he had

improperly appealed from a non-final judgment.

In June 2017, the State issued a separate indictment against appellant, charging him

with obstruction of justice and witness tampering in both Mr. Posey’s murder trial and his

own pending murder prosecution.6 Appellant’s trial on these charges began on January 16,

2018. Two days later, the jury acquitted appellant of obstruction of justice and witness

tampering in the State’s case against Mr. Posey, but convicted appellant of obstruction of

justice and witness tampering in his own murder case. This appeal concerns only the

propriety of appellant’s convictions for obstruction of justice and witness tampering.

DISCUSSION

In its brief, the State succinctly summarizes the issue for our review: “whether,

viewed in the light most favorable to the State, there is any evidence from which a

reasonable jury [could] conclude that Wilson’s course of conduct culminating in the

telephonic marriage reflected the corrupt intent necessary for conviction under the

obstruction of justice and witness-tampering statutes.” (Footnote omitted). The “course

of conduct” the State refers to is appellant’s intent and actions to marry Ms. Bannister for

the sole purpose of enabling her to invoke her spousal privilege and not testify against him.

We shall follow the out-of-state courts that have declined to create a judicial

6
According to the State’s brief, appellant’s trial for Ms. Anderson’s murder has
been postponed several times, and is currently scheduled for October 28, 2019.

4
exception to the spousal privilege and hold that a spouse may invoke the privilege even in

the context of a sham marriage. Accordingly, we conclude that, even assuming appellant

entered into a sham marriage for the purpose of allowing Ms. Bannister to invoke her

spousal privilege, his actions and intentions do not satisfy the “corrupt means” element of

“witness tampering” or “obstruction of justice.”7

The Spousal Privilege

“The history of the privilege not to testify against one’s wife or husband is involved

. . . in a tantalizing obscurity.” 8 John Henry Wigmore, Wigmore on Evidence § 2227 at

211 (McNaughton Rev. 1961). Although it is unknown when the privilege came to be, it

“may be said to have been understood to exist in some shape before the end of the 1500s

and to have been firmly established by the second half of the 1600s.” Id. at 213. The Court

of Appeals acknowledged the unclear origin of the spousal privilege in Brown v. State, a

case concerning the related “confidential communications privilege” now codified at CJP

§ 9-105.8 359 Md. 180, 189-90 (2000). There, the Court noted that, dating back to English

common law, “[t]he earliest root seems to be the privilege that a husband had to preclude

adverse testimony by his wife.” Id. 190 (citing Wigmore, supra, § 2227 at 211). Like its

7
We note that appellant disputes that his marriage is a sham. In his brief, he claims
that “[he] married a woman whom he had known intimately for many years, and who was
the mother of his two children.” Whether appellant and Ms. Bannister entered into a sham
marriage is irrelevant to our decision in this case.
8
The confidential communications privilege provides that “One spouse is not
competent to disclose any confidential communication between the spouses occurring
during their marriage.” CJP § 9-105. See generally State v. Sewell, 463 Md. 291 (2019).

5
date of origin, the actual policy reasons underlying the privilege similarly remain unknown.

In his treatise on evidence, Professor Wigmore posited that

Possibly the true explanation is, after all, the simplest one, namely,
that a natural and strong repugnance was felt (especially in those days of
closer family unity and more rigid paternal authority) to condemning a man
by admitting to the witness stand against him those who lived under his roof,
shared the secrets of his domestic life, depended on him for sustenance and
were almost numbered among his chattels.

Wigmore, supra, § 2227 at 212.

Whatever its source and rationale, the spousal privilege was first codified in

Maryland in 1864 when the General Assembly rewrote the first five sections of Evidence

Code, Article 37. Brown, 359 Md. at 195. In adopting § 3 to Article 37 in 1864, the

legislature enacted the following language:

No person who, in any criminal proceeding, is charged with the commission
of any indictable offence, or any offence punishable on summary conviction,
shall be competent or compellable to give evidence for or against himself,
nor shall any person be compellable to answer any question tending to
criminate himself, nor, in any criminal proceeding, shall any husband be
competent or compellable to give evidence for or against his wife, nor shall
any wife be competent or compellable to give evidence for or against her
husband, except as now allowed by law, nor in any case, civil or criminal,
shall any husband be competent or compellable to disclose any
communication made to him by his wife during the marriage, nor shall any
wife be compellable to disclose any communication made to her by her
husband during the marriage.

(Emphasis added). Notably, the original privilege precluded a spouse from testifying either

for or against the other spouse—the spouse was neither competent nor compellable.

One of the earliest interpretations of the spousal privilege is found in Turpin v. State,

55 Md. 462 (1881). There, John Turpin, who was accused of murder, unsuccessfully

6
sought to call his wife to testify in his defense. Id. at 475. Following his conviction, the

Court of Appeals was tasked with interpreting the effect of the Act of 1876, ch. 357, which

repealed Article 37 § 3 of the 1864 Act and instead provided:

3. “In the trial of all indictments, complaints and other proceedings against
persons charged with the commission of crimes and offences, and in all
proceedings in the nature of criminal proceedings, in any Court of this State,
&c., &c., the person so charged shall, at his own request, but not otherwise,
be deemed a competent witness.”

Id. at 476. Mr. Turpin argued that by repealing Article 37 § 3 of the Act of 1864, his wife

became a competent witness under § 1 of the Act of 1864. Id. at 476-77. That section

addressed who could be called as a witness and provided that “the parties litigant and all

persons in whose behalf any suit, action or other proceeding may be brought or defended,

themselves and their wives and husbands shall be competent and compellable to give

evidence in the same manner as other witnesses, except as hereinafter excepted.” Id. at

476.

The Court of Appeals rejected Mr. Turpin’s interpretation of the effect of the 1876

amendment, holding that § 1 of Article 37 only applied in civil actions, and that it “would

not operate to alter the rule of the common law which made a husband or wife an

incompetent witness in a criminal prosecution against the other.” Id. at 477-78. Instead,

the Court concluded that the effect of the 1876 amendment to Article 37 § 3 was to allow

a criminal defendant to testify in his own defense, not to remove “the incompetency of the

wife, which existed at the common law, to testify in the case of a criminal prosecution

against her husband.” Id. at 478.

7
In 1888, the General Assembly again amended the law. This time, the legislature

“added back to § 3 of Article 37 the provision that, ‘[i]n all criminal proceedings the

husband or wife of the accused party shall be competent to testify[.]’” Brown, 359 Md. at

196.

As a result of the 1888 amendment, the law, as ultimately codified in
Maryland Code Article 35, §§ 1 and 4 (1957) was that (1) spouses were
generally competent and compellable witnesses; (2) in criminal proceedings,
the spouse of the defendant was “competent to testify,” but (3) “in no case,
civil or criminal, shall any husband or wife be competent to disclose any
confidential communication made by the one to the other during the
marriage.” The law remained in that state until 1965, when the Legislature
added to what was then § 4 of Article 35 the provision that a person could
not be compelled to testify as an adverse party or witness in any criminal
proceeding involving the person’s spouse.

Id. at 197.

Between 1888 and 1965, the Maryland Code acknowledged a spouse’s competency

to testify in criminal proceedings, but did not specifically provide whether a spouse could

invoke the privilege to prevent being compelled to testify. Despite this silence, the Court

of Appeals nevertheless construed the Code as recognizing the existence of the spousal

privilege. See Raymond v. State ex rel. Younkins, 195 Md. 126, 128-29 (1950) (recognizing

that where husband abused wife, wife was a competent witness, free to decide whether she

would testify against her husband in trial for criminal abuse); see also Richardson v. State,

103 Md. 112, 117 (1906) (stating that wife of criminal defendant was a competent witness

who was free to testify against him “although she could not have been compelled to

testify”).

8
In 1971, the General Assembly amended Article 35 § 4 by providing that neither a

husband nor wife could be compelled to testify as an adverse party in any criminal

proceeding involving his or her spouse unless the proceeding involved abuse of a child

under the age of sixteen. The legislature again amended Article 35 § 4 in 1973 to provide

that a husband or wife could be compelled to testify against his or her spouse in criminal

proceedings involving abuse of a child under the age of eighteen.

As part of the recodification of the Maryland Code, in 1973 the General Assembly

enacted the Courts and Judicial Proceedings Article. For the first time, the legislature gave

the spousal privilege its own section, codified at § 9-106. That section provided “The

spouse of a person on trial for a crime may not be compelled to testify as an adverse witness

unless the charge involves the abuse of a child under 18.” In 1994, in an apparent effort to

combat domestic violence, the General Assembly narrowed the privilege by allowing the

State to compel a spouse to testify as an adverse witness when the spouse was the victim

of assault and battery in certain circumstances.

Despite legislative amendments subsequent to 1994 that created exceptions for

spouses who are assault victims, the general rule that a spouse may not be compelled to

testify as an adverse witness has remained in Maryland since 1864. Having established

that the spousal privilege has existed in Maryland for over 150 years, we next turn to

consider whether the privilege applies in a sham marriage, i.e., where the parties marry

with the intent and purpose of invoking the privilege in a criminal proceeding.

9
The Prevailing Rule: Recognizing the Spousal Privilege in Sham Marriages

Although Maryland courts have not addressed whether a spouse may successfully

invoke the privilege in a sham marriage, our dicta in Hagez v. State, 110 Md. App. 194,

211 n.7 (1996), suggests that the privilege may be invoked. There, the State charged Adel

Hagez with first-degree murder, and his wife attempted to invoke her spousal privilege not

to testify against him. Id. at 197-98, 207-08. The couple had divorced approximately two

years prior to the murder trial, but Mr. Hagez presented evidence that he remarried his wife

three days before the trial began. Id. at 207-08. Although evidence of the remarriage

contained apparent inconsistencies, the trial court assumed a valid marriage and

nevertheless ruled that Ms. Hagez could not invoke the privilege because “the purpose of

the marriage was to hinder justice by preventing Ms. Hagez’s testimony if asserted.” Id.

at 209.

Because we reversed Mr. Hagez’s conviction on other grounds, we did not reach the

issue of “whether the statutory testimonial privilege is available to a witness who has

married solely to assert the spousal privilege or to obstruct justice.” Id. at 211. We offered

some guidance on the topic, however, in a footnote. We observed that the ability to invoke

the privilege seemed to only depend upon the existence of a valid marriage, not upon the

reasons for the marriage:

We note that the spousal privilege, codified in [CJP] § 9-106, does not
seem to include any exceptions concerning an improper motive or purpose
in marrying. Rather, it appears to pertain to anyone who qualifies as a
“spouse,” without regard to the motive for the marriage. Thus, one who
marries for money, or to enhance one’s career, or for estate purposes,
seemingly would be entitled to invoke the privilege, so long as the marriage

10
is valid; the statute does not specifically authorize a trial court to go behind
the marriage to discern its validity or to pass judgment on the reasons for the
marriage.

Id. at 211 n.7. This language, though dicta, supports the conclusion that the ability to

invoke the spousal privilege should not depend on the underlying reason for the marriage.

Instead, it appears that the only relevant factor in deciding whether a party may assert the

spousal privilege is whether the marriage is valid.

The Hagez footnote further acknowledged that this principle appeared consistent

with application of the confidential communications privilege. We noted that “application

of [that] privilege does not depend upon the stability of the marriage, either at the time of

the communication or at the time the privilege is asserted.” Id. (quoting Coleman v. State,

281 Md. 538, 544 (1977)). Recognizing a potential flaw with the scope of the confidential

communications privilege, we noted, “It may be . . . that where there is no actual marital

relationship to preserve and protect, that public policy dictates not permitting the privilege

to become an obstruction to the administration of justice. That argument, quite obviously,

should be addressed to the legislature, not the courts.” Id. (quoting Coleman, 281 Md. at

545). This language suggested that the spousal privilege, like the confidential

communications privilege, can be invoked, even if the marriage is a sham.9

Nearly a year after Hagez, the Court of Appeals decided State v. Walker, 345 Md.

293, 325 (1997), a case concerning the “exceptional circumstances” hearsay exception. In

9
The footnote in Hagez also references contradictory authority, namely Lutwak v.
United States, 344 U.S. 604 (1953), and Osborne v. State, 623 P.2d 784 (Alaska 1981).
We shall address these cases in further detail below.

11
Walker, the Court mentioned, without explicitly holding, that the prevailing rule

throughout the country seemed to be that the spousal privilege applied, even in a sham

marriage.

There have, to be sure, been cases in which the defendant and the witness
have entered into a marriage immediately prior to trial, the inference being
that the marriage was a sham, arranged solely to preclude the witness from
testifying or having to testify. Most of those cases seem to have arisen under
the common law rule that either made the spouse incompetent as a witness
or allowed the defendant to preclude the testimony. See Michael G.
Walsh, Existence of Spousal Privilege Where Marriage Was Entered Into
For Purpose of Barring Testimony, 13 A.L.R.4th 1305 (1982). Some courts,
in that circumstance, have refused to apply the privilege, although the
prevailing rule seems to be, even in that circumstance, that the privilege
applies. Id. at 1308.

Id. at 330 (emphasis added). Our research vindicates the Walker Court’s assessment of the

prevailing rule, as many states allow a spouse to invoke the spousal privilege even in the

context of a sham marriage.

In State v. Peters, 444 S.E.2d 609, 610 (Ga. Ct. App. 1994), Georgia’s intermediate

appellate court concluded that the spousal privilege “may be invoked regardless of the

underlying motives for a valid, existing marriage.” There, the State charged Linda Peters

with murdering her husband. Id. Eleven days after the murder, Walter Sargent, who was

having an affair with Ms. Peters, finalized his own divorce. Id. Before she married Mr.

Sargent, Ms. Peters “told her daughters she probably would have to marry [Mr.] Sargent

so he would not testify against her.” Id. The State subpoenaed Mr. Sargent to testify before

a grand jury, and Mr. Sargent moved to quash the subpoena. Id. The trial court found the

marriage to be valid, and granted the motion to quash. Id. at 611. The State then took an

12
interlocutory appeal because of the importance of Mr. Sargent’s testimony to the murder

investigation and prosecution. Id.

On appeal, the court reviewed the scope of Georgia’s spousal privilege. Id.

Specifically, the Peters court recognized that the Georgia spousal privilege statute

essentially incorporated the common-law rule [that] spouses were neither
competent nor compellable to testify. An exception was created providing
that a wife was competent but not compellable to testify against her husband
for a criminal offense upon her person. This exception later was expanded
to include a criminal offense committed by either spouse upon the other. . . .
Finally, subsection (b) was added in 1987, providing that the privilege shall
not apply where the husband or wife is charged with a crime against the
person of a minor child.

Id. at 611 (internal citations omitted). The court specifically declined to create an

additional exception for sham marriages, noting that Georgia’s legislature “has not

provided an exception for the circumstances of this case.” Id. at 612. In doing so, the

Peters court stated that it was following the prevailing rule throughout the country:

“Allegations that a marriage was contracted solely for the purpose of barring testimony

have been considered by a number of state courts, and they have overwhelmingly declined

to create such a judicial exception to the marital privilege.” Id.

Pennsylvania’s intermediate appellate court has also adopted the prevailing rule. In

Commonwealth v. Lewis, 39 A.3d 341, 343 (Pa. Super. Ct. 2012), petition for allowance of

appeal denied, 51 A.3d 838, Erin Lewis developed a romantic relationship with Jeffrey

Gardner despite the fact that she was employed as his probation supervisor. Mr. Gardner

admitted their relationship to a chief county detective, and the Commonwealth charged Ms.

Lewis with tampering with public records and obstruction of justice. Id. Following the

13
filing of criminal charges, Ms. Lewis married Mr. Gardner. Id. Prior to her trial, Ms.

Lewis filed a motion to preclude the Commonwealth from calling Mr. Gardner as a witness,

and the Commonwealth filed its own motion seeking to compel Mr. Gardner’s testimony.

Id. The trial court granted the Commonwealth’s motion to compel, finding that although

genuine love existed between them, Ms. Lewis and Mr. Gardner’s marriage was

“collusive” in that the two married “for the express purpose of preventing Mr. Gardner

from testifying against [Ms. Lewis].” Id. at 344.

On appeal, the Pennsylvania Superior Court held that the trial court improperly

compelled Mr. Gardner to testify. The court began its analysis by noting that the spousal

privilege was a creature of statute, and that the statute only provided four exceptions to the

privilege, none of which concerned sham marriages. Id. at 346. The court then

acknowledged “three prevailing approaches” concerning the “reach” of the spousal

privilege: 1) that the privilege is not available in a collusive marriage,10 2) that the privilege

only applies to events that occurred during the marriage,11 and 3) that the privilege is

available “as long as a valid marriage exists[.]”12 Id. at 347.

10
The Lewis court cited to Lutwak v. United States, 344 U.S. 604 (1953) to support
this approach. We shall discuss Lutwak in greater detail below.
11
The Lewis court cited to United States v. Clark, 712 F.2d 299 (7th Cir. 1983) to
support this approach. The Clark court, in adopting the “premarriage acts exception,”
relied on “principles of the common law as they may be interpreted by the courts of the
United States [federal courts],” as well as the Federal Rules’ “flexibility to develop rules
of privilege on a case-by-case basis.” Id. at 302. Our research has not revealed any state
court adopting this exception.
12
Notably, the Lewis court cited Peters, supra, for this approach.

14
Ultimately, the court chose to adopt the third approach—that the privilege is

available provided that a valid marriage exists. To reach this result, the court employed

simple statutory construction. Recognizing that the statute did not provide an exception

for “collusive” or sham marriages, the court stated, “Because the privilege set forth . . . is

a creature of statute, we are bound by its expression and decline to imply exceptions for

collusive marriages or pre-marriage events or acts.” Id. at 350. The court noted that “no

one disputes that [Ms. Lewis] and Mr. Gardner were lawfully married when he asserted his

. . . spousal testimony privilege. Notably, neither the statute nor the exceptions eliminate

or limit the privilege for collusive marriages, or pre-marriage events or actions.” Id.

Because Ms. Lewis and Mr. Gardner’s marriage was valid, the court held that the trial court

erred in compelling Mr. Gardner’s testimony.13 Id. at 351.

Our research confirms that numerous states throughout the country have declined to

create a judicial exception to the spousal privilege in the case of a sham marriage. See

Walsh, supra, at 1305; State v. Chismore, 274 N.W. 3, 4 (Iowa 1937) (adopting view that

Iowa statute precludes spouse’s testimony even if defendant marries witness “for the sole

purpose of suppressing her testimony”); Norman v. State, 155 S.W. 135, 135-37 (Tenn.

1913) (upholding the common law spousal privilege when “it is clear that the marriage, so

far as [defendant] was concerned, was entered into for the express purpose of shielding

himself against prosecution”); State v. McGinty, 126 P.2d 1086, 1090 (Wash. 1942)

13
Although the court held that the trial court improperly compelled Mr. Gardner to
testify, it went on to hold that the admission of his testimony constituted harmless error
because it was “merely cumulative of other untainted evidence.” Lewis, 39 A.3d at 352.

15
(recognizing application of the privilege even if defendant married witness “to prevent her

from giving testimony which would have been harmful to his defense”); Cole v. State, 243

S.W. 1100, 1103 (Tex. Crim. App. 1922) (recognizing that the privilege applies even when

the defendant married the witness “for the express purpose of closing her mouth”); Moore

v. State, 75 S.W. 497, 498 (Tex. Crim. App. 1903) (“When the marriage ceremony is

performed, no matter what the motive was or may be, the witness thenceforward becomes

the lawful wife of defendant, and is prohibited under [the Texas] statute from testifying

against her husband, except where the offense is by the husband against her person.”);

United States v. White, 11 P. 570, 571 (Utah 1886) (“when the marriage ceremony was

performed, no matter what the motive was, the witness became beyond all question the

lawful wife of the defendant, and in this case she could not testify against his objection”);

State v. Anderson, 396 P.2d 558, 559-60 (Or. 1964) (noting that timing of marriage did not

affect defendant’s statutory right to assert the spousal privilege and prevent his wife from

testifying against him); Stevens v. Commonwealth, 150 S.E.2d 229, 230-31 (Va. 1966)

(recognizing that statutory spousal privilege applied where defendant married witness

eighteen days before trial); cf. Commonwealth v. DiPietro, 367 N.E.2d 811, 823 (Mass.

1977) (recognizing statutory spousal privilege for the sole purpose of preventing testimony,

but finding no error in admitting transcript of testimony given by witness prior to marriage).

Although many states recognize the spousal privilege even in the context of a sham

marriage, some courts consider the circumstances behind the marriage before deciding

whether the privilege may be invoked. In Osborne v. State, 623 P.2d 784, 787 (Alaska

16
1981), “the defendant married his wife, an important witness for the prosecution, just a

week before trial.” Mr. Osborne argued that “there was no proof that his marriage was a

sham, and that absent such proof” his wife was entitled to invoke the spousal privilege not

to testify against him. Id. The trial court rejected application of the privilege, and the

Supreme Court of Alaska affirmed, holding that,

the circumstances under which the marriage was entered into permit an
inference that the purpose of the marriage was to hinder justice, by
preventing [the wife’s] testimony. Neither the trial court nor we are required
to ignore this reality. Moreover, in determining the scope of the marital
privilege, i.e., in determining its marginal reach, a court may consider
whether sound public policy would be served by applying the privilege in a
situation of this kind.
Id.

We note, however, that in rejecting the application of the spousal privilege in

Osborne, the trial court invoked Alaska Criminal Rule 53, a rule of procedure which

provides that “These rules are designed to facilitate business and advance justice. They

may be relaxed or dispensed with by the court in any case where it shall be manifest to the

court that a strict adherence to them will work injustice.” Id. In affirming the trial court,

the Alaska Supreme Court held that, “the spousal testimonial immunity privilege is capable

of being relaxed under Criminal Rule 53.” Id. Whereas Alaska’s procedural rules

permitted the court to consider the reasons for the marriage, Maryland has no such rule.

In addition to Alaska, other states have failed to expressly adopt the prevailing rule.

See Glover v. State, 836 N.E.2d 414, 417-19 (Ind. 2005) (refusing to create an exception

to Indiana’s statutory marital communications privilege, but recognizing that a sham

marriage “may amount to a fraud on the court”); State v. Taylor, 642 So.2d 160, 166 (La.

17
1994) (granting trial court discretion to disregard spousal privilege “where the evidence

supports a finding that the victim spouse asserting the spousal witness privilege is more

probably than not acting under fear, threats or coercion, or that the marriage itself is a sham

confected for the purpose of making the privilege available”); State v. Mauti, 33 A.3d 1216,

1229 n.11 (N.J. 2012) (although refusing to engraft a judicial exception to statutory spousal

privilege, court suggested in a footnote that “[a] sham marriage would present entirely

different considerations”); State v. Gianakos, 644 N.W.2d 409, 415-18 (Minn. 2002)

(acknowledging that, in a proper case, the court may recognize a “sham marriage”

exception to Minnesota’s statutory spousal privilege, but noting that “[in] no case [has a

Minnesota court] ruled that a marriage is not worthy of the protection of the marital

privilege, a statutory rule engrained in [Minnesota’s] jurisprudence well over a century

ago”).14

The final outlier is Lutwak v. United States, 344 U.S. 604 (1953), a United States

Supreme Court case holding that spouses were competent to testify where the marriages

were fraudulent. There, the petitioners were charged with defrauding the United States

“concerning its governmental function and right of administering the immigration laws . . .

by obtaining the illegal entry into this country of three aliens as spouses of honorably

discharged veterans.” Id. at 605 (internal quotation mark omitted). At the time, “Alien

spouses of honorably discharged veterans of World War II were permitted to enter this

14
We also note that South Dakota, which repealed its statutory spousal privilege in
1979, currently only recognizes the confidential communications privilege. State v.
Witchey, 388 N.W.2d 893, 894 n.2 (S.D. 1986).

18
country under the provisions of the so-called War Brides Act.” Id. at 606. The petitioners

organized marriage ceremonies with the intent that “[t]he parties to the marriages were not

to live together as husband and wife, and thereafter would take whatever legal steps were

necessary to sever the legal ties.” Id. at 607.

Following the petitioners’ convictions, the Supreme Court considered “whether

these so-called wives [were] competent to testify against their purported husbands in this

criminal prosecution and thus incriminate the so-called husbands.” Id. at 613. The

Supreme Court concluded that the spouses were competent to testify, stating,

When the good faith of the marital relation is pertinent and it is made
to appear to the trial court, as it was here, that the relationship was entered
into with no intention of the parties to live together as husband and wife but
only for the purpose of using the marriage ceremony in a scheme to defraud,
the ostensible spouses are competent to testify against each other. Here
again, we are not concerned with the validity or invalidity of these so-called
marriages. We are concerned only with the application of a common-law
principle of evidence to the circumstances of this case.

Id. at 614. Although this language appears to permit a trial court to look behind the

marriage to determine whether a spouse is competent to testify, Lutwak’s context makes

its holding distinguishable.

Importantly in Lutwak, the Supreme Court stated that, “The common understanding

of a marriage, which Congress must have had in mind when it made provision for ‘alien

spouses’ in the War Brides Act, is that the two parties have undertaken to establish a life

together and assume certain duties and obligations.” Id. at 611. Unlike the various states

which simply require a valid marriage to invoke the spousal privilege, the Lutwak Court

defined marriage as the specific intent to “establish a life together and assume certain duties

19
and obligations.” Id. This narrow definition of “marriage” made sense in that post-war

circumstance:

Congress intended to make it possible for veterans who had married aliens
to have their families join them in this country without the long delay
involved in qualifying under the proper immigration quota. Congress did not
intend to provide aliens with an easy means of circumventing the quota
system by fake marriages in which neither of the parties ever intended to
enter into the marital relationship[.]

Id. This proposed definition of marriage, for purposes of the War Brides Act and federal

immigration policies, is unique to Lutwak. As noted in Hagez, however, in Maryland, “one

who marries for money, or to enhance one’s career, or for estate purposes, seemingly would

be entitled to invoke the privilege, so long as the marriage is valid[.]” 110 Md. App. at 211

n.7. Accordingly, we are not persuaded that Lutwak’s interpretation of “marriage” as

described in a federal statute applies to the circumstances present in the instant case.15

Having surveyed the cases concerning the spousal privilege in the context of a sham

marriage, we cannot discern any prevailing minority position. Alaska’s specific procedural

rules allow it to disregard the spousal privilege in the interests of justice. Osborne, 623

P.2d at 787. Louisiana allows a trial court to determine whether the witness is acting under

fear, threats, or coercion, or that the marriage is a sham, before allowing a spouse to invoke

15
We note that both the Ninth and Tenth Circuit Courts of Appeal have followed
Lutwak’s holding and declined to recognize the privilege when the marriage was not
entered into in good faith. See United States v. Saniti, 604 F.2d 603, 604 (9th Cir. 1979);
United States v. Apodaca, 522 F.2d 568, 571 (10th Cir. 1975). Additionally, in United
States v. Blair, 54 F.3d 639, 645 (10th Cir. 1995), the Tenth Circuit upheld a district court’s
sentence enhancement for obstructive conduct where the defendant married a witness who
did not wish to testify against him in grand jury proceedings.

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the privilege. Taylor, 642 So.2d at 166. Indiana has refused to create a judicial exception,

yet it has not foreclosed the possibility that a sham marriage “may amount to a fraud on

the court.” Glover, 836 N.E.2d at 419. New Jersey has also declined to create a judicial

exception, but has cryptically noted that “[a] sham marriage would present entirely

different considerations.” Mauti, 33 A.3d at 1229 n.11. Minnesota suggests that in an

appropriate case, a court could recognize a sham marriage exception, but its Supreme Court

nevertheless noted that no Minnesota court has ever done so. Gianakos, 644 N.W.2d at

417-18. South Dakota legislatively repealed the spousal privilege, taking the issue away

from the courts altogether. State v. Witchey, 388 N.W.2d 893, 894 n.2 (S.D. 1986). Finally,

in Lutwak the Supreme Court construed “marriage” as it pertained to the War Brides Act,

i.e., “that the two parties have undertaken to establish a life together and assume certain

duties and obligations.” 344 U.S. at 611.

We find none of these approaches persuasive. Instead, we expressly adopt the

prevailing rule, and hold that in Maryland, if the parties are validly married, a spouse may

invoke the spousal privilege codified at CJP § 9-106, subject to the exceptions expressly

provided in § 9-106(a)(1) and (2).

Marrying for the Purpose of Invoking the Spousal Privilege is not “Corrupt Means”

Having adopted the prevailing rule that permits a witness to invoke the spousal

privilege in the context of a sham marriage, we now turn to appellant’s convictions. In this

case, the State’s theory of prosecution was that appellant’s alleged marriage to Ms.

Bannister constituted “corrupt means” as that term appears in both the witness tampering

21
and obstruction of justice criminal statutes.

Md. Code (2002, 2012 Repl. Vol., 2018 Supp.), § 9-305 of the Criminal Law

Article (“CL”), which prohibits witness tampering, provides, in relevant part:

(a) Prohibited. – A person may not, by threat, force, or corrupt means, try
to influence, intimidate, or impede a juror, a witness, or an officer of a
court of the State or of the United States in the performance of the
person’s official duties.
(b) Solicitation prohibited. – A person may not solicit another person to, by
threat, force, or corrupt means, try to influence, intimidate, or impede a
juror, a witness, or an officer of the court of the State or of the United
States in the performance of the person’s official duties.

(Emphasis added). Section 9-306(a) of that Article, which prohibits obstruction of justice,

provides:

(a) Prohibited. – A person may not, by threat, force, or corrupt means,
obstruct, impede, or try to obstruct or impede the administration of justice
in a court of the State.

(Emphasis added).

Both statutes prohibit action by “threat, force, or corrupt means” intended to either

tamper with a witness or obstruct justice. During argument on appellant’s motion for

judgment of acquittal, the State acknowledged that its only theory of appellant’s criminal

culpability stemmed from the statute’s “corrupt means” language. When the trial court

asked the State for its theory of “corrupt means” culpability, the State responded, “The

corrupt means is engaging in a fraudulent marriage for the sole purpose of shutting up a

witness, to put it bluntly.”

As we have shown, in many states “engaging in a fraudulent marriage for the sole

purpose of shutting up a witness” is a statutorily sanctioned means to prevent a witness

22
from testifying.16 Those states simply require a valid marriage in order to invoke the

privilege—it is irrelevant for purposes of the privilege whether the marriage serves a

fraudulent purpose. In light of our adoption of the “prevailing rule,” we fail to see how the

act of marrying for the express purpose of invoking the privilege can constitute “corrupt

means” witness tampering or obstruction of justice. In short, a person cannot be guilty of

“corrupt means” witness tampering or obstruction of justice where the allegedly criminal

act—marrying with the express purpose of invoking the spousal privilege—is recognized

as a lawful and permissible means for the new spouse to avoid being compelled to testify.

We recognize that this rule creates an obvious potential for mischief. Nevertheless,

there is currently no “sham marriage” exception to the spousal privilege set forth in CJP §

9-106, and we decline to create a judicial exception. Any amendment to CJP § 9-106 must

come from the General Assembly. 17

JUDGMENTS OF THE CIRCUIT COURT
FOR CHARLES COUNTY REVERSED.
COSTS TO BE PAID BY CHARLES
COUNTY.

16
Additionally, at least one state, Tennessee, reaches the same conclusion based on
the common law. Norman, 155 S.W. at 135-37.
17
Nothing in our opinion should be construed as deciding whether appellant’s
phone-marriage to Ms. Bannister constituted a legally valid marriage as defined in Md.
Code (1984, 2012 Repl. Vol., 2018 Supp.), §§ 2-201 to -407, -409, -410 of the Family Law
Article. We simply hold that, regardless of his intent, appellant’s efforts to marry Ms.
Bannister do not constitute “corrupt means” as a matter of law.

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