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05/21/70 United States of America v. Frank Lewis

May 21, 1970




Wright, Tamm and Robinson, Circuit Judges.


Petition for Rehearing Denied June 18, 1970.



The holdup, a midnight affair, was staged by three men, one of whom was armed with a rifle and another with a sawed-off shotgun. At the trial, a witness identified appellant as one of the three,4 and another witness related an overheard conversation between appellant and his co-defendant concerning a planned robbery of the delicatessen.5 The defense evidence was to the effect that appellant was in Philadelphia, Pennsylvania, on the critical date.

To rebut the claim of alibi, Annie Durham Lewis, appellant's wife at the time of the holdup,6 was admitted, over appellant's objection,7 as a witness on behalf of the Government. Mrs. Lewis' testimony placed appellant at their apartment in the District of Columbia on the date in question, and described his departure therefrom, in the company of the co-defendant, about two hours prior to the holdup. Mrs. Lewis also testified that appellant returned home about 3:00 or 3:30 on the morning following, and that he was then carrying a sawed-off shotgun.

Congress has modified the common law doctrine, previously obtaining in this jurisdiction, disqualifying a spouse as a witness in litigation to which the other is a party.8 The relevant statute now provides that "in civil and criminal proceedings, a husband or his wife is competent but not compellable to testify for or against the other."9 The statute does not, however, extend testimonial competence to all events transpiring during the marital enterprise. "In civil and criminal proceedings," the statute continues, "a husband or his wife is not competent to testify as to any confidential communications made by one to the other during the marriage."10 Read together, these provisions obviously mean that a willing spouse may testify, save as to confidential communications inter se, notwithstanding opposition by the marital co-partner.11 Thus Mrs. Lewis' testimony was properly received at appellant's trial if given voluntarily, and if confined within proper limits.

Appellant's argument that his wife's testimony was improperly received embraces two independent contentions. First, it said that the record is bare of any indication that Mrs. Lewis was afforded an opportunity to exercise her option not to testify against her husband. To assure such an opportunity, we had occasion, in Postom v. United States,12 to suggest that trial judges suitably advise the spouse-witness on that score,13 and the fact is that the suggestion was not pursued here. Nonetheless, the record discloses that defense counsel14 declined the trial judge's invitation to request an appropriate instruction to the witness, and instead simply "object[ed] to any testimony generally."15 The record reveals, moreover, that the prosecuting attorney inquired of Mrs. Lewis as to whether she wished to testify in the case, and that she responded in the affirmative.16 Undeniably, the safer course is to follow the Postom suggestion in all instances where the spouse-witness' knowledge of the testimonial alternatives is not crystal clear. We are advertent, however, to the consideration that the choice was for Mrs. Lewis to make, and we are not persuaded that under the circumstances here appellant's conviction should be reversed on the speculative theory that Mrs. Lewis, in stating that she was willing to testify, might not have meant what she said.

The second facet of appellant's argument focuses on Mrs. Lewis' testimony that she observed her husband's return to the apartment with a sawed-off shotgun about three hours after the robbery. Appellant equates these observations with a communication of the observed facts and on that basis urges that their admission into evidence was erroneous. For reasons now to be related, we decline the invitation.

The marital disqualification appellant now asserts is designed "to insure subjectively the unrestrained privacy of communication, free from any fear of compulsory disclosure."17 In consequence, "the protection . . . extends only to communications, not to acts which are in no way communications."18 This is not to say that acts are never communicative; on the contrary, we recognize that there is considerable authority supporting the thesis that in particular contexts they can be.19 But regardless of the character of the communication, "the essence of the privilege [against disclosure] is to protect confidences only,"20 and to become privileged the communication must in the first place be confidential.21 The crucial questions posed at appellant's trial were whether the events Mrs. Lewis observed were both communicative and confidential,22 and the record before us does not afford the means for definitive answers.

It has not been the rule in the federal courts that acts become confidential communications merely because during coverture they are performed by one spouse in the presence of the other.23 Nor does it appear that the essential qualities of communication and confidentiality flow automatically from the fact that the act seen by the other spouse is one that connotes criminal conduct.24 Some acts conceivably may so convey a message, and may so bespeak a trust, as to necessitate nothing more to demonstrate entitlement to the privilege.25 We cannot, however, say that those to which Mrs. Lewis testified here fall readily within that category.

Responding to separate questions, Mrs. Lewis said simply that appellant came back to the apartment at 3:00 or 3:30 a.m., and that he then had a sawed-off shotgun. No further circumstance was inquired into, nor was any volunteered, that might serve to elucidate the situation. We do not know whether appellant's re-entry into the apartment was open or clandestine; if the latter, the elements of communication and confidentiality are clearly lacking.26 We do not know whether appellant was unaware of or indifferent to the observation of his wife; if either, we face the same insuperable difficulty.27 In sum, a purpose to both communicate and confide in the wife is left totally obscure. This we attribute primarily to the fact that the items of testimony now challenged were not made the subjects of specific objection at trial.28

Basic in our criminal procedure is the rule that an appropriate objection in the trial court is ordinarily necessary to preserve a question for review.29 The general requirement is that he who would later complain on appeal must, "at the time the ruling or order of the court is made or sought, makeknown to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor."30 We have pointed out, too, that the objection, "should be timely, specific, and renewed, when the court's initial ruling, correct when made, is proved erroneous in the light of subsequent evidence."31 The rationale for these requirements32 includes importantly the need for a record, developed by adversary processes, on which appellate consideration and resolution can safely proceed. It is evident that the opposition that was voiced at trial did not specifically present to the District Court the issue appellant now seeks to litigate here.33

Our authority to deviate from the mandate referred to is limited to cases wherein there are "plain errors or defects affecting substantial rights."34 We cannot say, from what is before us, that error is manifest here.35 Nor can we undertake to explore on a barren record the conditions under which future spousal acts ...

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