Carving out an exception to the state’s spousal communication privilege law, the state Superior Court has ruled text messages exchanged between a married couple should be admitted as evidence in a criminal prosecution where it is alleged the wife brutally beat her husband’s 4-year-old son.

The unanimous three-judge panel’s ruling turned on the fact that "excluding certain information (the texts) may not always further the intended goal of a privilege (preserving marital harmony)."

"This holding not only modernizes the antiquated notion of preserving marital harmony above all else, but reinforces the significant purpose of protecting children from abuse and promoting the reporting of such abuse," Judge Anne E. Lazarus wrote for the court.

The privilege, found at 42 Pa.C.S.A., Section 5914, precludes testimony from a husband or wife that speaks to confidential communications between the spouses, unless the privilege is waived at trial.

In Commonwealth v. Hunter, the debilitating injuries suffered by a toddler, identified in the opinion as B.H. Jr., came after defendant Michele Renae Hunter allegedly pushed him down, causing him severe brain damage that the opinion said is likely to span his entire lifetime. According to the court’s opinion, Hunter first told authorities that the boy fell on his own and reopened an existing cut. She later told police she had pushed him to the ground, the opinion said.

As the child stayed unresponsive despite Hunter’s best efforts to rouse him (he did not react after she splashed his face with cold water, Lazarus said), she texted her husband, who faces conspiracy charges, about his son’s injuries.

Those texts, according to Hunter’s attorney, were handed over to police by the husband, who was not named in Lazarus’ 12-page opinion. Hunter also has testified the text messages had been the subject of a Child and Youth Services hearing and in a county child welfare agency hearing that court filings said "’likely contained information that would be material to [Hunter's] guilt or punishment [in the instant criminal proceedings].’"

For Lazarus, admission of the texts, which Hunter is attempting to block through motions, followed a logical extension of an exception to a similar statute and a proper application of public policy.

"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 percent of reported child-abuse cases stem from abuse that occurred in the home," Lazarus said.

She went on: "Fortunately, in this case there was ample evidence to make a case for the prosecution, independent of the texts, primarily from Hunter’s admissions to the police. However, in other cases where those ‘privileged’ communications provide the sole basis for the criminal complaint against an alleged child abuser, the prosecution may be hampered in proving its case at trial."

In her analysis, Lazarus called the state Supreme Court’s 2002 decision in Commonwealth v. Spetzer instructive in the court’s understanding of the interplay between the Child Protective Services Law and Section 5914, even though the marriage in the instant case was not in "a state of disharmony" when the texts were sent, unlike the communications in Spetzer.

In that case, the defendant, who physically and sexually abused his stepchildren and physically abused his wife, argued on appeal that his trial counsel should have objected to the admission of confidential statements he made to his wife, in which he had attempted to have his wife arrange sexual contact between him and his stepdaughters.

The Superior Court agreed with the defendant, but the Supreme Court reversed the ruling, finding that the defendant’s statements to his wife were "not the sensitive, marital harmony-inspiring communications contemplated by the common-law authorities, or the Pennsylvania General Assembly in erecting this privilege."

The justices also said the existence of the CPSL, which waives marital privileges in child-abuse proceedings, meant the defendant had no reasonable expectation of privacy when he made his statements to his wife.

Other cases have long stood for the proposition that the confidentiality of communications between spouses depends on the circumstances in which they arose.

In Hunter, the panel concluded Hunter could not have reasonably expected her texts to remain confidential after she testified about them being at issue during the CYS hearing.

"Because the texts cannot be considered confidential under the facts of this case, Section 5914 does not apply to exclude Hunter’s texts from evidence," Lazarus said.

The statute at issue is not to be confused with Section 5913, the right to not testify against your spouse in criminal proceedings, which has an exception when the case involves injury or attempted violence against a child.

"Despite their apparent differences, we find no rational basis for not having a child-abuse exception under Section 5914 as well," Lazarus said. "The lack of an exception under Section 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."

Additionally, Lazarus said in a footnote the couple appeared to be preparing for a divorce, later noting the communications privilege "outlasts both death and divorce." That is unlike the testimonial privilege, which dissolves along with a marriage.

According to the opinion, Hunter’s attorney indicated the woman’s husband was prepared to testify against her at trial.

Stephen D. Kulla of Kulla, Barkdoll, Ullman & Painter in Waynesboro, Pa., said his client is "contemplating" her options, including a possible petition for allowance of appeal to the Supreme Court.

Kulla said the court’s decision made an "exception to the exception," referring to the testimonial privilege in Section 5913. He said Sections 5914 and 5913 were different laws and that "one does not apply to situations of this nature."

Lauren E. Sulcove of the Franklin County District Attorney’s Office is listed on the docket as the prosecutor and did not respond to a call requesting comment.

The January 15 ruling affirms a Franklin County judge’s decision from early last year.

Allowing the text messages into evidence, Franklin County Court of Common Pleas Judge Richard J. Walsh said his ruling was a "novel holding" in an apparent case of first impression that required him to "apply an ancient legal doctrine to modern technology."

Citing case law dating back to the 1824 English law case Doker v. Hasler, Walsh said the original purpose of the spousal communications privilege was to preserve marital harmony by preserving marital confidences.

Walsh, however, said that "rotely applying the privilege makes no sense, the history of the privilege does not support it, and recognizing it would defeat its very purpose."

"In reviewing the messages, there is no hint of marital disharmony," Walsh said. "But it would make a mockery of the privilege to hold that a person can keep secret her spouse’s knowledge of her child abuse or neglect."

In addition, Walsh said, because the text message conversation would have been admissible at the CYS hearing, the defendant had no reasonable expectation of privacy.

Hunter faces charges of simple assault, aggravated assault and endangering the welfare of a child, according to Lazarus. Her husband, in a separate criminal case, faces charges of conspiracy to endanger the welfare of a child and endangering the welfare of a child.

After the child went into cardiac arrest, medical examiners found a bruise on his lower back, a dilated pupil, a subdural hemorrhage and brain damage.

Walsh said that during the day on both March 15 and 16, 2011, prior to the child being taken to the hospital by emergency personnel, Michele and William Hunter had sent text messages back and forth, several of which detailed the child’s health and condition and that Walsh characterized as "extremely damaging evidence."

Walsh noted in his opinion that Pennsylvania is one of only seven U.S. jurisdictions that have yet to eliminate the confidential spousal communications privilege from all cases involving child abuse.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI. 

(Copies of the 12-page opinion in Commonwealth v. Hunter, PICS No. 13-0137, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •