The marital privilege prevents prosecutors from introducing interspousal cellphone calls and text messages in the trial of an accused drug kingpin, a New Jersey appeals court held on Tuesday in a precedential decision.
The panel, in State v. Terry, A-0218-12, overruled a trial judge who found a crime-fraud exception to the marital privilege, an exception that has been recognized by state and federal courts in other jurisdictions.
There is no exception in New Jersey and the courts cannot create one, the Appellate Division said, citing a 50-year-old statute that gives the Legislature and the governor their say on evidentiary rule changes proposed by the judiciary.
Teron Savoy of Lakewood is accused of leading a trafficking network that distributed heroin and cocaine in Ocean and Monmouth counties, while his wife Yolanda Terry faces lesser charges.
They were indicted with 20 others after an investigation by prosecutors from Ocean and four other counties.
During the investigation, the government placed court-authorized wiretaps on two cellphones used by Savoy.
Some intercepted communications allegedly involve Savoy arranging with Terry for her to pick up drug proceeds from a man later charged with them.
When the state indicated it planned to offer into evidence two or three phone conversations and five text messages between Savoy and Terry, the pair asked the court to exclude them on account of the marital communications privilege in New Jersey Rule of Evidence 509.
Ocean County Superior Court Judge Stephanie Wauters denied the motion, finding and applying a crime-fraud exception.
In reversing, the panel recognized that the same public policy concerns underlying the crime-fraud exception to the attorney-client privilege extend to marital communications — given that the effect of a privilege is to suppress relevant evidence and that it is not uncommon for spouses to act as accomplices or co-conspirators.
Immunization "would encourage such spousal involvement, thwart law enforcement, and increase the risk to the public," wrote temporarily assigned Superior Court Judge George Leone, joined by Appellate Division Judges Clarkson Fisher Jr. and Alexander Waugh Jr.
Leone noted that all 11 U.S. circuit courts of appeal have recognized a crime-fraud exception to marital privilege, as have many states, including California, Illinois, New York and Texas, by statute, rule or case law.
Nevertheless, the court found it lacked authority to create an exception under the Evidence Act of 1960, which gives the three branches of government a role in the process.
The law requires the Supreme Court to notify the Legislature and governor when it promulgates evidence rules and provides that they take effect unless canceled by a joint resolution of the Senate and General Assembly signed by the governor.
It also gives the Legislature the right to change evidence rules without input from the other branches.
Leone pointed to the example of the forfeiture by wrongdoing exception to the hearsay rule. It allows admission of out-of-court statements by witnesses against parties who are directly or indirectly responsible for the witness’s unavailability at trial.
In State v. Byrd, 198 N.J. 319 (2009), the justices declined to adopt such an exception, stating that even though it "would be a positive development and promote the ascertainment of truth," they would not "act unilaterally and bypass the procedures of the Evidence Act."
Instead, they complied with the statute by adopting the exception in September 2010 and having it take effect on July 1, 2011, after the Legislature failed to block it.
An attempt to substitute a narrower exception, applicable only to criminal cases, fell short when the Senate approved it in February 2011 but the Assembly failed to vote.
In addition, Leone relied on State v. Mauti, 208 N.J. 519 (2012). There, the Supreme Court "emphasized the limited ability of judicial opinions to amend the statutory privileges" in refusing to compel a woman to testify against her husband, contrary to the statutory spousal testimonial privilege, even while noting that the privilege has been abandoned by 19 states.
Leone agreed with Wauters that communications made in furtherance of drug trafficking did not deserve protection and did not fall within the public policy principles underlying the marital communication privilege, but his view did not matter in light of Byrd.
Ocean County Prosecutor Joseph Coronato says that he will seek an appeal and that the ruling almost invites him to do so.
His concern is not for the case at hand, which he says "is not going to be devastated by the opinion," but the impact on future investigations.
Samuel Marzarella, who supervises the office’s appellate section, says Supreme Court guidance is needed because in the age of the cellphones it is hard to tell who is married, in contrast to the past when tapped phones were shared household landlines.
Terry’s lawyer, Toms River solo John Brown Jr., says a crime-fraud exception would be more intrusive in the marital than the attorney-client context because communications between spouses are privileged and spouses tend to communicate more.
The intercepts were "the sole evidence against my client," he adds.
Brian DiStefano of Bayville, who represents Savoy, says they are the basis for the most serious charges against him.
Savoy has been in jail because he cannot meet the $350,000 cash-only bail requirement, and DiStefano hopes the court will now consider reducing it.