Circuit Court for Charles County Case No. C-08-CR-17-000048
Berger, Friedman, Beachley, JJ.
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?
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.
AND PROCEDURAL BACKGROUND
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.
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 Brian 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. 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.
2015, the State indicted both appellant and Mr. Posey for
crimes related to Ms. Anderson's death. 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 efforts culminated
in appellant "marrying"  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.
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 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.
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,
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.
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. 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.
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.
shall follow the out-of-state courts that have declined to
create a judicial 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."
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. 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 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.
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
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.
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 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
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.
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 ...