Opinion
Ind. No. 70506-23
08-08-2023
The PEOPLE of the State of New York, v. Ronald LUCAS, Defendant.
Alaina M. Finan, Esq., Special Assistant District Attorney, Latham, NY for the People. Tully Rinckey PLLC (Derrick T. Hogan, Esq., of counsel) Albany, NY for defendant.
Alaina M. Finan, Esq., Special Assistant District Attorney, Latham, NY for the People.
Tully Rinckey PLLC (Derrick T. Hogan, Esq., of counsel) Albany, NY for defendant.
Thomas Marcelle, J. In a series of text messages, Defendant Ronald Lucas confessed to his wife that he sexually molested their nephew. He has been charged, inter alia, with predatory sexual assault against a child ( Penal Law § 130.96 ). The prosecution, naturally, wants to publish the confession to the jury. Lucas resists—he argues that the spousal communication privilege forbids such disclosure ( CPLR 4502 [b] ). Here is the story, at least according to the prosecution: Lucas sexually assaulted his 11-year-old nephew when the victim visited defendant's house. Lucas continuously molested his victim over a period of eight years. After each assault, defendant admonished his nephew not to tell anyone. Defendant attempted to sodomize the victim for the last time a few years ago. In 2022, the victim's mother became gravely concerned about the victim's drug use and his spiral into depression. When his mother confronted her son about his present dysphoria, the victim finally told his mother about the molestation. The jig was up—Lucas's years of secret abuse were now out and in the open.
The unraveling followed in rapid succession. After the victim confided in his mother, the mother told Mrs. Lucas. Mrs. Lucas then instructed defendant to leave their home. After his exit from the marital home, but before an arrest had been made, defendant sought to reconcile with his wife via text message. During the exchange, defendant acknowledged his depraved acts—"I messed up bad," "I am very ashamed," "I am sick." Nevertheless, he attempted to assuage (or perhaps beguile) his dubious wife from her anger by assuring her that he had sexually abused their nephew only and that there were "no others." Defendant also expressed his desire to evade incarceration—"Am I getting arrested?", "So is [the victim] giving a statement?", "I really want to work this out without going to jail ...."
While confession is good for the soul, it can be, and in this case is, damning evidence—if admissible. The text messages’ admissibility hinges on the applicability of spousal privilege.
Rules of evidence are complex—fraught with exceptions and caveats. Therefore, it is advisable to start with basic principles and reason forward. The justice system's foundational evidentiary rule commands that the court has the right to every man's evidence. This rule exists for a simple reason: the judicial system seeks truth to deliver justice. Consequently, every person who holds relevant information must aid in this mission.
This maxim traces at least as far back as Lord Chancellor Hardwicke, in a 1742 parliamentary debate (12 Parliamentary History of England 693 [1812]).
A privilege provides a special exemption to this rule (Black's Law Dictionary [11th ed 2019]). Every privilege is sourced in a relationship marked by inherent trust and loyalty. Marriage is one such relationship. Indeed, marriage occupies sacrosanct ground—"[f]rom their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage ..." ( Obergefell v. Hodges , 576 U.S. 644, 656-57, 135 S.Ct. 2584, 192 L.Ed.2d 609 [2015] ).
At common law, the spousal privilege developed to promote marital trust and stability ( Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 [1934] ). In theory, confidence in confidentiality fosters honest communication between spouses which in turn creates strong marital bonds. Thus, the privilege allows a husband and wife to be able to speak freely with "no apprehension that such [conversation] can, at any time, or in any event, be violated, so far, at least, as regards any testimony or disclosure in a court of justice" ( Chamberlain v. People , 23 N.Y. 85, 89 [1861] ).
In New York, the spousal privilege is codified at CPLR 4502 (b) and extended to criminal proceedings under CPL 60.10. The spousal privilege applies to (a) a communication (b) induced by the marital relationship (c) made in confidence (d) during the marriage, if it is (e) not waived and (f) not subject to an exception.
CPLR 4502 (b) reads: "A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage."
Lucas invokes the privilege to shield his confession. Defendant argues that the text messages to his wife were made in confidence and prompted by the affection, trust and loyalty engendered by the marital relationship. The prosecution disagrees. It contends that the texts were neither made in confidence nor prompted by affection and loyalty.
The prosecution leads its argument with the assertion that text messages cannot be considered private communications. The rationale rests on the ease which text messages can be preserved and instantaneously shared. Thus, as the argument goes, text transmissions lack the indicia of true confidential discourse.
This point possesses superficial plausibility. It is true that any conversation to be privileged, must be private. Indeed, a spousal communication lacks confidentiality if it occurs in the known presence of outsiders ( People v. Ressler, 17 N.Y.2d 174, 269 N.Y.S.2d 414, 216 N.E.2d 582 [1966] ).
So, the question devolves into whether texting, by its very nature, lacks the hallmarks of private communication. There is little New York caselaw on this point. However, other courts have observed that "text messaging is a platform capable of confidential use" ( State v. Sewell , 463 Md. 291, 316, 205 A.3d 966 [2019] ). In this sense, a text message is akin to a letter—a recorded message capable of being shared (see Stillman v. Stillman , 115 Misc. 106, 108, 187 N.Y.S. 383 [Sup. Ct., Dutchess County [1921] [holding that "[l]etters between husband and wife are within the protection of the rule as are oral communications, and the contents thereof cannot be disclosed ..."]). The capability of sharing a communication, no matter how easily done, standing alone, does not destroy its confidentiality.
Moreover, the facts here offer no basis for straying from the established evidentiary rule. In this case, the text exchanges occurred solely between defendant and his wife over their personal cellphones, each associated with a unique cellphone number known to the other spouse. Moreover, nothing suggests that any other party was monitoring the conversation. Given that cellphones are seldom separated from their owners, the court concludes that defendant could have reasonably expected he was communicating with his wife.
Nevertheless, the prosecution persists, surmising that because defendant sent the texts after his wife had reported him to the police, he had no expectation that his transmissions would remain confidential—that is, since Lucas's wife had already told on him, Lucas should have expected that she would tell on him again and turn over any incriminating conversation to law enforcement.
Human emotions (especially those between spouses) are an inscrutable maze. Accordingly, even though a wife may summon the law, a husband can cling to the hope, even an unreasonable one, that the marriage is not wholly extinguished ( People v. Fediuk , 66 N.Y.2d 881, 883, 498 N.Y.S.2d 763, 489 N.E.2d 732 [1985] ). In other words, that a spouse has reported a crime to the police does not, in and of itself, eradicate all expectations of future confidentiality within the marriage.
Indeed, this may well be the case here. Certainly, it is hard to imagine defendant would send text messages admitting to a crime and wondering how he could evade criminal prosecution while simultaneously expecting the same messages to be handed over to the police. Moreover, Mrs. Lucas never hinted that defendant's discourse with her lacked privacy. While it is true that Mrs. Lucas subsequently gave the messages to the police, the disclosure is immaterial to defendant's reasonable expectation of privacy at the time of the text exchange. Consequently, the court finds that defendant had a reasonable expectation of privacy when he texted his wife and thus, the texts were made in confidence.
The prosecution argues that even if the text confession was confidential, it still lacks privilege because the confession was neither induced nor prompted by marital affection or loyalty. The prosecution advances two arguments on this front. Initially, the prosecution argues that because defendant's abuse of his nephew was not induced by the marital relation, it follows, therefore, that defendant's statements about the crime to his wife cannot be considered induced by the marriage. While the prosecution begins with a correct premise, the conclusion lacks logical continuity. A husband could commit a crime unrelated to the marriage; yet his confessing the crime to his wife may well be generated by the marriage—it is human nature to confess to loved ones (Baumeister, Stillwell, & Heatherton, "Guilt: An interpersonal approach." Psychological bulletin, 115[2], 243, 257 [1994]). In this case, the court concludes defendant's confession would not have been made but for the affection, confidence and loyalty engendered by the marital relation.
Finally, the prosecution argues that the messages were aimed at ruining the marital relationship and that a communication which wrecks a marriage cannot be said to have been inspired by the marital relationship. Fair point. Again, the premise is spot on—telling a spouse about having sexual relationships with a child will tend to shatter the marriage. However, the relevant question is not so much the effect of the defendant's dispatches on the marriage but rather the intent behind defendant's communication (see Fediuk , 66 N.Y.2d at 886, 498 N.Y.S.2d 763, 489 N.E.2d 732 [ruling that the privilege applies when "the subject is such that the communicating spouse would probably desire that the matter be kept secret, either because its disclosure would be embarrassing or for some other reason"]).
To fortify its argument, the prosecution relies on Poppe v. Poppe , 3 N.Y.2d 312, 165 N.Y.S.2d 99, 144 N.E.2d 72 (1957). In Poppe , the court held that a husband could testify that his wife taunted him about affairs that she had with another man and her desire to elope with him ( id. at 314, 165 N.Y.S.2d 99, 144 N.E.2d 72 ). The court found it evident that "[t]he wife's disclosure related not to the confession of a penitent wife confiding to her husband her story of her wrongdoing, but to a defiant declaration of misconduct and of an intention to persist therein and go away with the other man" ( id. at 317, 165 N.Y.S.2d 99, 144 N.E.2d 72 ). Thus, the Poppe court concluded that the communication's tone, purpose, and nature "negated any inference that the statement was induced by any confidence or trust but actually demonstrated its absence" ( id. ). Consequently, the spousal privilege was deemed inapplicable.
This case is not Poppe . Here, defendant's texts expressed contrition, a renewed commitment to family and a wish to reconcile. Now, one may fairly suspect, as the prosecution does, that defendant's lamentations were a facade and a transparent attempt to manipulate his wife to become an ally in his forthcoming legal battle. Speculation and supposition cannot overwhelm the sanctum of marital intimacy. Rather, communications between spouses are "presumed to have been conducted under the mantle of confidentiality" ( Fediuk , 66 N.Y.2d at 883, 498 N.Y.S.2d 763, 489 N.E.2d 732 ). Further, "it is not appropriate for a trial court to determine whether a marital [communication] is genuine ..." ( People v. Starr , 213 A.D.2d 758, 759, 622 N.Y.S.2d 1010 [3d Dept. 1995] ). Therefore, the court finds that defendant's messages were made in confidence and induced by the marriage, and they are, consequently, protected by CPLR 4502 (b).
Given this finding, the text messages are privileged unless overridden by an exception ( People v. Govan , 268 A.D.2d 689, 691, 701 N.Y.S.2d 474 [3d Dept. 2000] ). An exception applies in this case, or so the prosecution argues. In particular, the prosecution says that the privilege must step aside when one spouse tells the other spouse that he has committed personal wrongs against her. True, at least in the abstract. Caselaw repeats the common refrain that the spousal privilege was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other (see People v. Howard , 134 A.D.3d 1153, 1154, 21 N.Y.S.3d 423 [3d Dept. 2015] [citing to multiple cases that embrace this proposition]).
However, "wrong" is a broad term and oftentimes highly subjective. And to give the term "wrong" a full and robust meaning would risk having the exception swallow the privilege. Still, there is a kind of wrong which courts have considered an exception to spousal privilege. Specifically, where a spouse engages in criminal activity aimed at the other spouse, the spousal privilege is extinguished ( Govan , 268 A.D.2d at 691, 701 N.Y.S.2d 474 ). So, for the exception to be applicable, the wrong committed must be both personalized to the other spouse and violate the Penal Law.
In this context, the prosecution argues that in the text exchanges, Lucas admits that he committed adultery against his wife. Indeed, Penal Law § 255.17 makes adultery a crime. While seldom prosecuted, the threat of prosecution still exists and a statute is never repealed by non-use (Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 57 at 336 [1st ed 2012]). Thus, if Lucas's sexual molestation of his nephew constitutes adultery, then Lucas telling his wife that he abused their nephew is the same as telling his wife that he had committed a crime against her—adultery. There is much merit to this argument but also problems.
To start, a person commits adultery when he engages in sexual intercourse with another person at a time when he has a living spouse ..." ( Penal Law § 255.17 ). Thus, adultery hangs on whether Lucas engaged in sexual intercourse with his nephew. The term sexual intercourse appears in two different articles within the Penal Law. Penal Law § 255.17 defines adultery as an offense against the marital relationship and it applies only to married people. In contrast, Penal Law Article 130 concerns sex offenses against any person whether married or not. Interestingly, the term sexual intercourse is defined in Article 130 but not in § 255.17.
Lucas invites the court to adopt Penal Law § 130.00 (1) ’s definition of sexual intercourse in construing the adultery statute. According to Penal Law § 130.00 (1), " ‘[s]exual intercourse’ has its ordinary meaning ...." In practice, at least as a jury is instructed, the term sexual intercourse "means any penetration, however slight, of the penis into the vaginal opening" (CJI2d[NY] Penal Law § 130.35 [1] ). Thus, at least for crimes under Article 130, the term sexual intercourse means intercourse between opposite sexes.
Consequently, grafting Article 130's definition on to § 255.17 would effectively afford the protection of the adultery offense only to opposite-sex couples. Using this definition might have some merit. Indeed, historically, adultery included only heterosexual sex ( Cohen v. Cohen , 200 Misc. 19, 103 N.Y.S.2d 426 [Sup. Ct., N.Y. County 1951] ).
Yet, history is not still and the law pertaining to marriage has evolved. In 2011, same-sex marriage was enacted ( Domestic Relations Law § 10-a ). To ensure the existing law was modified to take same-sex marriages into account, the Legislature admonished that any legal protection "relating to marriage, deriv[ed] from statute or any other source of law, shall [not] differ based on the parties to the marriage being or having been of the same sex rather than a different sex" ( Domestic Relations Law § 10-a [2] ).
Thus, Penal Law § 255.17, to be consistent with the Legislature's instruction, must equally protect all married couples. Thus, sexual intercourse must be defined broadly. Modern dictionaries do just this. For example, Webster's defines sexual intercourse as either "involving penetration of the vagina by the penis" or "involving genital contact between individuals other than penetration of the vagina by the penis" (Webster's Third New International Dictionary [unabridged ed 2002]). The court adopts this definition and will apply it to this case and to Lucas's conduct
Here Lucas sodomized his nephew—this act involved genital contact. Consequently, Lucas had sexual intercourse within the meaning of Penal Law § 255.17. Thus, when he sexually assaulted his nephew, Lucas also committed the crime of adultery against his wife. Lucas's confession of the sexual molestation to his wife, is the same as telling his wife that he had committed the crime of adultery against her. As a victim of the crime, Mrs. Lucas need not remain silent about it ( People v. Capobianco , 218 A.D.2d 707, 707, 630 N.Y.S.2d 386 [2d Dept. 1995] ). Rather, since Lucas's text messages announced "criminal activity aimed at the other spouse," the spousal privilege is extinguished ( Govan , 268 A.D.2d at 691, 701 N.Y.S.2d 474 ).
Therefore, defendant's motion to suppress the text message conversations between him and his wife is denied. At trial, the prosecution will be allowed to use, upon a proper evidentiary foundation, Lucas's text messages to his wife.
The foregoing constitutes the Decision and Order of the court.