People v. Vann 448 Mich. 47

Per Curiam.

The defendant was convicted of assaulting another man with a gun. The question on appeal is whether the trial court erred in allowing the defendant’s estranged wife to testify against him. Relying on MCL 600.2162; MSA 27A.2162 and a previous decision of this Court, the Court of Appeals found error and reversed the defendant’s convictions. We hold that the trial court did not err in admitting the disputed testimony, and reverse the judgment of the Court of Appeals.

I

The opinion of the Court of Appeals sets forth the facts that are necessary to the decision in this case:

Pearlie Vann testified at trial that after nineteen years of marriage to defendant, she moved *49out of their home on July 7, 1990, and filed for divorce on October 12, 1990. Vann testified that on October 21, 1990, at approximately 3:00 a.m., she was leaving the Detroit residence of Albert Murlone when she noticed that his car had two flat tires. Vann then heard defendant call her and saw him come toward her. Vann ran back into Murlone’s house, where she heard a struggle at the door. She heard glass breaking and gun shots. Bullets penetrated the door, and one bullet ricocheted and struck Vann in the shoulder but did not injure her.

Murlone’s testimony corroborated Vann’s testimony. Murlone stated that he attempted to close the outer security door to his house that early morning, but that defendant held it open from the outside. Murlone saw defendant pull a gun from his right pocket. Murlone then closed the inner door. Defendant fired five shots into the door. Murlone then saw defendant drive away. The trial court allowed into evidence Murlone’s photographs of the broken glass and bullet holes, as well as three bullets that were recovered.

Defendant testified that he attended a birthday party sometime after 10:00 p.m. on October 20, 1990, and left with Tommy Dean at approximately 2:00 a.m. Defendant stated that Dean dropped him off at the house of Ida McGarity in Mt. Clemens, where defendant stayed until about 11:00 a.m. Defendant denied being in Detroit at 3:00 a.m., claiming he did not know Murlone or where he lived. Defendant also denied owning a handgun. McGarity’s testimony at trial corroborated defendant’s testimony. [Unpublished opinion per curiam of the Court of Appeals, issued August 19, 1993 (Docket No. 142237).]

In connection with the alleged attack on Mr. Murlone, the defendant was charged with assault with intent to commit murder1 and possession of a *50firearm during the commission of a felony.2 Following a preliminary examination, he was bound over for trial on the lesser charge of assault with intent to do great bodily harm less than murder3 and felony-firearm.

The defendant waived his right to a trial by jury and proceeded to a bench trial in May 1991. Pearlie Vann was the first witness. As soon as she identified herself as the defendant’s wife, the defendant’s attorney objected to her testimony. Counsel submitted that MRE 501 precludes one spouse from testifying against another except in certain narrow and inapplicable circumstances.4 After considerable discussion, and over the continuing objection of defense counsel, the court permitted Ms. Vann to testify.

The court found the defendant guilty of the lesser offense of felonious assault,5 and of felony-firearm. The defendant was sentenced to serve a probation term of three years for the assault, and a consecutive two-year prison term for felony-firearm.

On appeal, the defendant argued that Ms. Vann’s testimony violated MCL 600.2162; MSA 27A.2162, and prior decisions of this Court. The Court of Appeals reversed the defendant’s convictions and remanded the matter to the trial court for a new trial, concluding that People v Love, 425 Mich 691, 696; 391 NW2d 738 (1986), required such relief. The Court of Appeals denied rehearing.

The Wayne County prosecutor has filed an appli*51cation for leave to appeal from the decision of the Court of Appeals.

ii

The statutory spousal privilege appears in MCL 600.2162; MSA 27A.2162:

A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, in cases of prosecution for a crime committed against the children of either or both, and where the cause of action grows out of a personal wrong or injury done by one to the other .... [Emphasis supplied.]

The statute was addressed in Love, where the defendant was accused of killing his wife’s male companion and then kidnapping her. The murder case depended entirely on the testimony of the wife, who was a reluctant witness. The Court of Appeals held that the spousal privilege did not bar the wife’s testimony because the murder was committed during the same criminal transaction as the kidnapping.

This Court reversed. A majority of justices agreed that the wife in Love could not testify in the murder prosecution because the offense against the third-party decedent occurred before the offense against the wife, i.e., the earlier murder could not "grow out of” the subsequent kidnapping. However, the wife could testify against her husband with regard to the kidnapping.

in

The Court of Appeals reasoned in the instant *52case, on authority of Love, that the defendant’s convictions must be reversed. The panel explained:

In this case, defendant was charged with and convicted of assault upon Murlone. Because the crimes charged were not committed against Vann, they do not fall within the "grows out of a personal wrong or injury” exception to the spousal privilege.

The Court of Appeals said that the error was not harmless beyond a reasonable doubt because it is unclear whether the trier of fact would have convicted the defendant absent Ms. Vann’s testimony.

We disagree that the trial court erred in permitting Pearlie Vann to testify regarding the assault on Albert Murlone. In Love, the kidnapping of the defendant’s wife occurred after the murder of the third party. Accordingly, the third party’s cause of action did not "grow out of” the personal injury or wrong to the wife.

Here, however, the prosecution’s evidence indicated that there was an assault on the defendant’s wife, and that it occurred contemporaneously with the assault on the third party. In other words, unlike the situation in Love, the offense committed against the third party in the instant case did "grow out of” the personal wrong or injury done by the defendant to his wife. MCL 600.2162; MSA 27A.2162.

IV

For the reasons given, we reverse the judgment of the Court of Appeals and reinstate the judgment of the Recorder’s Court for the City of Detroit.

Brickley, C.J., and Boyle, Riley, Mallett, and Weaver, JJ., concurred.

*53Cavanagh, J.

I respectfully dissent. As I interpret the language in the spousal-privilege statute, "[t]he phrase 'grows out of’ indicates that the particular cause of action must be for the personal injury inflicted upon one spouse by the other.” People v Love, 425 Mich 691, 702; 391 NW2d 738 (1986). Stated otherwise, "the crime charged must have been committed against the witness-spouse to come within the 'personal wrong or injury’ exception.” Id. at 703 (emphasis added).

In the instant case, the prosecutor did not charge the defendant for the crime he allegedly committed against his spouse. Consequently, under my view of the statute, the exception for allowing spousal testimony could not apply in this case, regardless of the temporal sequences of the alleged offenses. Because, as the Court of Appeals, I am not convinced that the admission of the wife’s testimony constituted a harmless error beyond a reasonable doubt, I would hold that the defendant is entitled to a new trial.

Levin, J.

(dissenting). The majority distinguishes People v Love, 425 Mich 691; 391 NW2d 738 (1986), on the ground that in this case Vann’s conduct respecting his wife occurred at the same time as his scuffle with her lover.1 As a result, the majority concludes that Vann’s assault on the third party "did 'grow out of’ the personal wrong or injury done by the defendant to his wife.”2

This Court has held, however, that "grows out of a personal wrong or injury” codified common-law exceptions to the rule excluding spousal testimony. In People v Quanstrom, 93 Mich 254, 255; 53 NW 165 (1892), this Court said that the phrase was *54"used in a restricted sense.” This Court said that, if the phrase was intended to have a broad meaning, the exceptions for cases such as spousal maintenance lawsuits would have been unnecessary. The Court then surveyed the common-law exceptions to the rule against spousal testimony as well as more recent cases, and concluded:

In the cases excluding the testimony of the wife, it is held that the legislature had imported into the statute the common-law rule, and that, before any departure from that rule . . . can be adjudged, the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit. The clear weight of authority supports the[se] principles .... [Id. at 260.][3]

Although Quanstrom held that a bigamy prosecution did not "grow[ ] out of a personal wrong or injury” done to the wife, the Legislature did not change the "growing out of ” language. Id. at 254.4 Instead, it added an exception for bigamy prosecutions.5 Later exceptions added to the statute have also left the "growing out of ” language intact.6

The common-law exception, which the statute codified, covered criminal prosecutions of a spouse for physically injuring the other spouse.7 The exception is too narrow to fit the facts of this case.

*55Although their language differs, the spousal privilege statutes of most states include exceptions for crimes committed by one spouse against the other.8 Courts in these jurisdictions have reached a variety of results when faced with cases factually similar to this one. Some, like Quanstrom, have required that the defendant actually be charged with a crime against the witness spouse.9

Others have broadly construed such statutes.10 In Fortes v People, 113 Cal App 3d 704, 708; 170 Cal Rptr 292 (1980), a California appellate court held that, for the exception to apply, it was not necessary to charge a defendant with committing a crime against his wife. But "the People must make at least a prima facie showing” that defendant has committed a crime against his wife.

Leave to appeal should either be granted, or denied. The majority’s decision to peremptorily reverse the Court of Appeals belittles its efforts, in the disposition of this case, as reflected in its carefully written, albeit unpublished, opinion, and deprives Vann and his counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals._

*56Today’s peremptory decision reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe.

When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs. A justice who may have missed a significant point of law or fact on perusal of the materials considered before voting for peremptory reversal might be enlightened and persuaded in the course of oral argument.

Also lost, when this Court acts without plenary consideration, is the opportunity for conference discussion after oral argument.

Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required.11 In the instant case, factual and legal *57assessment is required. Peremptory disposition is not appropriate.

MRE 501 provides:

Privilege is governed by the common law, except as modified by statute or court rule.

In Butler and today in Vann the Court adds an additional exception: "or per curiam opinion peremptorily reversing the Court of Appeals.”_