“This rule is consistent with preexisting case law adopting an exception to the husband-wife privilege for communications between spouses relating to crimes in which they are jointly participating when the communications occur. State v. Browder, 486 So.2d 504 (Ala.Crim.App.1986). This exception applies only to communications that are in furtherance of, or pertain to, the crime charged.

State v. Browder, 486 So. 2d 504 (Ala. Crim. App. 1986). This exception applies only to communications that are in furtherance of, or pertain to, the crime charged.

This is a second appeal of a pre-trial order involving the issue of certain statements allegedly made by Sandra Dawn Browder to her former husband to whom she was married at the time of making the statements while he was confined in a hospital bed. See this court's opinion in State v. Browder, 486 So.2d 504 (Ala.Crim.App. 1986). In our prior opinion we noted "[t]he court found that the defendant and Maddox were legally married on September 13, 1979; the alleged offense occurred on October 13, 1979; and the communications and acts in question took place during the marriage and were confidential communications."

An Alabama statute allows a spouse to testify over the other spouse's objection, but he or she may not testify to confidential communications that would normally be subjected to marital privilege, unless the communicating spouse waives it. See C. Gamble, McElroy's Alabama Evidence, § 103.01(4) at 226 (3d ed. 1977 1988 Supp.); State v. Browder, 486 So.2d 504, 505-06 (Ala.Crim.App. 1986) (quoting Arnold v. State, 353 So.2d 524, 526 (Ala. 1977)). Appellant claims that the prosecution's use of two prior convictions to impeach him at trial and at sentencing should have been challenged by Pickard and that failure to do so had an adverse effect on his defense.

See Arnold v. State, 353 So.2d 524 (Ala. 1977); Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962); Owen v. State, 78 Ala. 425 (1885); Handley v. State, 515 So.2d 121 (Ala.Cr.App. 1987); State v. Browder, 486 So.2d 504 (Ala.Cr.App. 1986). Rule 504 states, in pertinent part:

Next, it appears likely, from the fact that Ms. Bujeiro was granted "use immunity" by Alabama and federal authorities for her cooperation in the Self and Clayton prosecutions, see Self v. State, 564 So.2d at 1026, that she was a joint participant in criminal activity with Montanez. Testimony regarding conversations between spouses who are joint participants in crime is not protected by the marital communications privilege. State v. Browder, 486 So.2d 504 (Ala.Cr.App. 1986). The order denying Montanez's petition is affirmed.

' " (Citations omitted.) State v. Browder, 486 So.2d 504, 506 (Ala.Cr.App. 1986). In Arnold, however, our Supreme Court went on to hold that, "It is the confidential nature which is implicit in any application of the privilege, and it is well-settled that a statement made in the presence of (or directed at) a third party lacks that requisite confidentiality between spouses."

(Footnotes omitted.) For further general discussion, see State v. Browder, 486 So.2d 504 (Ala.Cr.App. 1986). The act of appellant of wearing the shirt described above, on the evening of the murder, as well as his ownership of such a shirt, did not constitute a confidential marital communication and, hence, it was proper for the trial court to admit the testimony of the former wife that he owned such a shirt and wore it on the date of the murder.

' " Id., quoting 1975 Alabama Code (Supp. 1984), §§ 13A-10-42 through 13A-10-44 Commentary. See also State v. Browder, 486 So.2d 504, 507 (Ala.Cr.App. 1986). Thus, the offense of hindering prosecution punishes "the obstructive behavior for what it is, without regard to whether the primary criminal can be tried or convicted."

Alaska R. Evid. 505(b)(2)(B); Ky. R. Evid. 504(c)(1); Tex.R. Evid. 504(a)(4)(A); Utah R. Evid. 502(e)(2).State v. Browder, 486 So.2d 504, 507 (Ala.Cr.App.1986); Gill v. Commonwealth, 374 S.W.2d 848, 851 (Ky.Ct.App.1964); State v. Smith, 384 A.2d 687, 693–94 (Me.