NM Supreme Court Abolishes Spousal Privilege | Criminal Case

New Mexico case summary on spousal privilege: evidence law.

State of New Mexico v. David Gutierrez II

Jose Valverde was shot dead in Clovis, New Mexico, in 2002.  The case remained unsolved for 13 years, when David Gutierrez II was indicted for the murder.  Gutierrez had told two people about his role in the crime.  Shortly after killing Valverde, he told his wife, and threatened to kill her if she ever told anyone.  They soon divorced, but Gutierrez remarried and told his second wife about the murder.  He was later estranged from her.

At trial, both women testified.  The first wife testified that the victim was her uncle and had raped her when she was 13 or 14 years old.  On the day of the murder, Gutierrez told her that he “took care of it,” and she knew what had happened.  He had her go to the scene of the crime and find the shotgun shell.  She also saw him dispose of the clothes.  He later threatened that she would suffer the same fate if she ever told anyone.  She was contacted by the police but she lied and did not tell about the crime.

The second wife also testified.  She was still legally married to the defendant at the time of trial but hadn’t spoken in years.   She overheard the defendant’s parents say that they would send him away for years, and she asked what they meant.  He informed her about the murder.

Gutierrez was found guilty of first-degree murder by a Curry County jury, and he was sentenced to life in prison, plus one year.  He then appealed to the New Mexico Supreme Court.  He raised a number of issues, all of which were unsuccessful.  One of his arguments was that the testimony of the wives violated the spousal communication privilege.  Historically, that privilege prohibited one spouse from testifying as to conversations or communications with the other spouse.

The state’s high court first pointed out that it had the constitutional authority to recognize or limit evidentiary privileges.  And in making the determination, it pointed out that a court’s main job is the ascertainment of truth.  Therefore, subject only to limited exceptions, all persons can be compelled to testify.  Exceptions should be made only when they are for the public good.

The high court began its inquiry by looking at the history of the rule, which dated back to feudal England.  The U.S. Supreme Court recognized it in 1839, which found that the privilege was essential to the preservation of marriage.  It also noted that there were privacy implications.

But the high court also noted that there was no evidence that married persons even knew that the privilege existed, or that the relied upon it when communicating with their spouses.  If the spouses are unaware that the privilege exists, then it doesn’t really help the marriage relationship.  For example, the U.S. Supreme Court omitted the rule from proposed rules of evidence in 1973, partly because it didn’t believe most spouses were even aware of it.

Also, it noted that even if spouses were aware of the privilege, it probably wouldn’t affect communications.  It contrasted the privilege with the doctor-patient or attorney-client privilege, and noted that in those cases, the professional was much more likely to take it into consideration.

Ultimately, the court agreed with a commentator who stated that the privilege or lack of it would have no perceptible effect on spouses’ communication.

Indeed, in this case, the defendant showed that his confession to his wives was not prompted by the privilege.  The first wife, for example, was told presumably because she would be pleased, but also threatened her with death if she told.

Ultimately, the court held that allowing the testimony did not diminish marital harmony in any way.

For these reasons, the supreme court abolished the spousal privilege in New Mexico.  However, this did not end the discussion of the matter, because the new rule was applied prospectively only.  Therefore, it still had to determine the effect in this case.

The lower court had allowed the evidence in on the basis of waiver.  There was evidence that the defendant had told other people.  Therefore, it was reasoned, the privilege was waived.  The supreme court held that this was error, because the defendant had never disclosed the statement to third parties—he had merely disclosed the fact of the murder.

It held, however, that the error was harmless.  In particular, the first wife knew more than the confession—she had actually seen the dead body and had helped dispose of the shotgun shell and clothes.

In the case of the second wife, there was dispute as to whether she was told before or after the marriage.  On this point, the defendant had the burden of proof to show that the statement was made during the marriage.  The supreme court held that he had failed to prove this point, and that the statement might have been made before the marriage, in which case it was not privileged.

After dealing with this issue, the supreme court went on to hold that the evidence was sufficient to convict.  It also dismissed the defendant’s arguments regarding grand jury and pre-trial issues.  It also affirmed despite the defendant’s claim of ineffective assistance of counsel.

For these reasons, the supreme court affirmed.

Justice Barbara J. Vigil penned a separate opinion dissenting in part.  While she would have affirmed the conviction, she dissented from the abolishment of the privilege.

No. S-1-SC-36394 (N.M. Aug.  30,  2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.