After being charged with “with simple assault, aggravated assault and endangering the welfare of a child”, Michele
Renae Hunter filed a “pretrial motion in limine seeking to exclude from evidence text messages
(texts) sent between her and
her co-defendant”, whom the opinion refers to only as “Husband.” Commonwealth
v. Hunter, __ A.3d __, 2013 WL 150779 (Superior Court of Pennsylvania
2013). The trial court denied the motion
after he held a hearing on it. Commonwealth v. Hunter, supra.
To understand the charges and the motion in limine, it is necessary to understand
how the case arose:
The four-year-old
victim, B.H., Jr., is Husband's biological son and Hunter's stepson. While in
Hunter's care, B.H., Jr., suffered a severe brain injury (subdural
hemorrhage), which led to cardiopulmonary arrest.
The attending
pediatrician on staff at the hospital where B.H., Jr., was taken for treatment
opined that there is a high probability that he will suffer lasting brain
damage as a result of the injury.
The doctor also noticed that B.H.,
Jr., had bruising over his entire back, consistent with hand prints, as well as
on both arms and elbows. The doctor noted that child abuse was suspected.
Initially, Hunter told the police that on March 16, 2011,
B.H., Jr., had been upstairs and had fallen and reopened an old cut on his
chin. She also told the officers the boy had passed out in the bathroom, fell,
and was non-responsive and had difficulty breathing. Days later, Hunter told
authorities she had not given accurate information regarding how the child
became injured and that on March 15, 2011, she had pushed [him] down, causing
him to hit his head.
She said he became unresponsive and she was unable to
rouse him by carrying him to the bathroom and splashing cold water in his face.
She said the boy remained relatively unresponsive (`limp’) throughout the day,
falling in and out of periods of responsiveness. He was unable to move his
limbs or sit up on his own.
Commonwealth v. Hunter, supra. (In a footnote, the
court explains that at Hunter’s bail hearing, B.H.’s foster mother said he “is
unable to walk, talk, swallow food, communicate or play” and “has a shunt in
his head to drain fluid and a permanent feeding tube that goes into his stomach
and intestines.” Commonwealth v. Hunter, supra.)
The opinion also says that Hunter also told
the authorities that “throughout the day” on March 15,
she began
sending Husband texts at work,
describing the boy's deteriorating condition over a 36–hour span. B.H., Jr.,
was unable to walk or sit up on his own that evening and was put to bed by
Husband and Hunter, both of whom checked on him throughout the night.
The next
morning, . . . [he] was able to walk with some assistance, [but] continued to
exhibit many of the symptoms from the day before. That evening, as Husband
carried his son into his bedroom, B.H., Jr. began gasping for breath and went
into cardiac arrest. He was rushed to the hospital.
Commonwealth v. Hunter, supra. The opinion notes
that “[m]ore than 50 texts were sent by Hunter to Husband over that time
period, ending when the boy went into cardiac arrest and was rushed to the
hospital.” Commonwealth v. Hunter, supra.
Hunter was charged with the crimes noted
above and “Husband was charged with conspiracy to endanger the welfare of a
child and endangering the welfare of a child.” Commonwealth v. Hunter, supra.
As also noted above, she moved to prevent the prosecution from using the
texts at trial. Commonwealth v. Hunter, supra.
In her motion, Hunter argued that the texts
would not be admissible at a trial on the charges because Pennsylvania’s “statute
regarding privileged confidential communications between spouses” would bar
their use. Commonwealth v. Hunter, supra.
As Wikipedia explains, U.S. law generally recognizes two distinct
privileges:
the communications
privilege and the testimonial privilege. Both types of privilege are
based on the policy of encouraging spousal harmony, and preventing spouses from
having to condemn, or be condemned by, their spouses.
In this case, Hunter sought to invoke the
spousal communications privilege, which is a
form of privileged
communication which protects the contents of confidential communications
between spouses during their marriage from testimonial disclosure.
The privilege applies in civil and criminal cases.
Both the
witness-spouse and the party-spouse hold the spousal communications privilege,
so either may invoke it to prevent the other from testifying about a
confidential communication made during marriage.
(And as Wikipedia notes, the spousal
testimonial privilege “protects the individual holding the privilege from being
called to testify by the prosecution against his spouse/the defendant.” We will get to that privilege later.)
More precisely, Hunter sought to invoke the
privilege codified in 42 Pennsylvania Consolidated Statutes § 5914, which
provides as follows: “Except as
otherwise provided in this subchapter, in a criminal proceeding neither husband
nor wife shall be competent or permitted to testify to confidential
communications made by one to the other, unless this privilege is waived upon
the trial.”
The judge who wrote this opinion began by
noting that while “the privilege was enacted to preserve marital harmony by
encouraging free marital communication, allowing spouses to confide freely, and
protecting the privacy of marriage”, courts should also recognize that “excluding
information may not always further the intended goal of a privilege and may . . . hinder . . . legal proceedings intended to protect fragile
members of society.” Commonwealth v.
Hunter, supra. She also noted that
“[o]ne such instance is in the prosecution of child abuse cases when the
perpetrator(s) involved are spouses and at least one is the parent of the minor
child.” Commonwealth v. Hunter, supra.
The judge explained that under one section
of Pennsylvania’s Child Protective Services Law (CPSL) -- 23 PennsylvaniaConsolidated Statutes § 6381(c) -- “confidential communications between
spouses are admissible in any proceedings regarding child
abuse or the cause of child abuse.” Commonwealth v. Hunter, supra. She also noted that in Commonwealth v. Spetzer, 572 Pa. 17, 813 A.2d 707 (Pennsylvania Supreme Court 2002), the court found the CPSL is relevant to the interpretation
of § 5914 in a
more subtle and
indirect fashion. The Court in [Commonwealth v. May] recognized that
the question of what is a `confidential’ communication turns in part on the
reasonable expectation the declarant has that the communication will remain
confidential. 540 Pa. 237, 656 A.2d 1341-42 [Pennsylvania Supreme Court 1995].
Even if it is assumed that § 6381(c) does not directly provide a
broad child abuse exception to § 5914's application in criminal
proceedings, it certainly affects what a spouse's `reasonable expectation’ of
continued confidentiality may be with respect to marital communication that
reveal the previous or intended abuse and intimidation of a child.
Commonwealth v. Hunter, supra. The Spetzer court held that the spousal
communications in that case were not confidential because Spetzer’s “`persistent
and sadistic statements’” concerning “his actual and contemplated crimes against
his wife and her children” could not be “`rationally excluded’” under the §
5914 privilege because they “‘did not arise from the confidence existing
between the parties, but the want of it.’”
Commonwealth v. Hunter, supra
(quoting Commonwealth v. Spetzer,
supra).
Here, the Superior Court also noted that
while communications between spouses are
presumed to be
confidential under § 5914. .
. it has long been recognized that whether a particular communication is
privileged depends upon its nature and character and the circumstances under
which it was said. . . . It is essential that the communication be made in
confidence and with the intention that it not be divulged. . . . [I]t is the burden of the party
opposing the privilege to overcome the presumption of confidentiality.
Commonwealth v. Hunter, supra.
It then found that Hunter could not have
“reasonably expected” her texts to remain
confidential where
she testified they had been the subject of a Children and Youth hearing . . .
and where the record reflects that Hunters' texts had been at issue in an
August county child welfare agency hearing that `likely contained information
that would be material to [Hunter's] guilt or punishment [in the criminal
proceedings].’ . . . Because the texts cannot be considered confidential under
the facts of this case, § 5914 does not apply to exclude Hunter's texts
from evidence.
Commonwealth v. Hunter, supra.
But the Superior Court went further,
considering yet another reason why the texts would not be inadmissible. It noted that its decision would provide “some
consistency” in the
application of § 5914 and
our Commonwealth's spousal testimonial privilege, codified at 42 PennsylvaniaConsolidated Statutes § 5913. In 1989, the legislature enacted
the section 5913 privilege, which provides an exception to the
general prohibition of spouses testifying against each other when the criminal
proceeding involves bodily injury or violence . . . done or threatened upon the
minor children of husband and wife, or the minor children of either of them. .
. .
The [§ 5913] privilege is . . . distinct from the privilege .
. . in § 5914. . . . [W]e find no rational basis for not having a child
abuse exception under § 5914 as well. The lack of an exception
under § 5914 not only trivializes the import of child abuse, but fails to
recognize that the effect of admitting these communications outweighs any
benefit in upholding the sanctity of the spousal privilege.
Commonwealth v. Hunter, supra.
The court explained that the § 5914
privilege is much more limited than the § 5913 privilege, because it “only
bars a spouse's testimony if it pertains to a communication made by
the party-spouse” but the testimonial privilege in § 5913 “bars a court from
compelling any testimony from a witness in a martial relationship with a party
in a court proceeding.” Commonwealth v. Hunter, supra (emphasis
in the original). So, even if Hunter’s
texts were not admissible under § 5913, under the child abuse exception in
§ 5913, Husband may be compelled to testify
against Hunter at trial. . . . In fact, at Hunter's bail hearing, defense
counsel indicated that Husband had already agreed to testify against Hunter in
this criminal case. . . .
It seems illogical
to potentially hinder the Commonwealth's child abuse case by excluding at
trial, as per section 5914, critical communications regarding that abuse
made between spouses -- especially where more than 90% of reported child abuse
cases stem from abuse that occurred in the home. . . .
Commonwealth v. Hunter, supra.
The Superior Court therefore held that when
“a defendant-spouse is the alleged perpetrator in current child abuse
proceedings and where that
abuse forms the basis of criminal proceedings against that defendant-spouse,
the § 5914 privilege shall not apply at the defendant's criminal trial to
preclude admission of spousal communications.” Commonwealth v. Hunter, supra.
It therefore affirmed the trial court’s order denying Hunter’s motion in limine. Commonwealth
v. Hunter, supra.
If you would like to read a little more
about the case and see a photo of Hunter, check out the news story you can find
here.
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