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Wilson v. State

Court of Special Appeals of Maryland

July 30, 2019


          Circuit Court for Charles County Case No. C-08-CR-17-000048

          Berger, Friedman, Beachley, JJ.


          BEACHLEY, J.

         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.


         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 Brian[1] 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 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 for a crime may not be compelled to testify as an adverse witness. [5] 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, 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.


         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 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 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 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 ยง 3 was to allow a criminal defendant to testify in his own defense, not to remove "the incompetency ...

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