Court of Appeals of Mississippi Applies “Common Nucleus of Operative Fact” Test to Spousal Competency/Privilege

February 8, 2024

Mississippi Rule of Evidence 504 states the following:

(a) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person.

(b) General Rule of Privilege. A person has a privilege to prevent the person’s current or former spouse from testifying in a civil or criminal case about any confidential communication between them.

(c) Who may Claim the Privilege. Either spouse may claim the privilege. A spouse has authority to claim the privilege on the other spouse’s behalf.

(d) Exceptions. The privilege does not apply:

(1) in a civil case between the spouses; or

(2) in a criminal case when one spouse is charged with a crime against:

(A) the person of a minor child; or

(B) the person or property of:

(i) the other spouse;

(ii) a resident of either spouse’s household; or

(iii) a third person when committed during a crime against any person described in paragraphs (d)(1) and (2).

In turn, Mississippi Rule of Evidence 601(b) provides that

If one spouse is a party, the other spouse may not testify as a witness in the case unless both consent, except:

(1) when called as a witness by the spouse who is a party;

(2) in a controversy between them; or (3) in a criminal case for:

(A) a criminal act against a child;

(B) contributing to the neglect or delinquency of a child;

(D) abandonment of a child.

So, assume that a husband is charged with multiple crimes involving different victims, with his wife being the victim of one or more of the crimes. Can the husband prevent his wife from testifying based upon these rules? That was the question addressed by the Court of Appeals of Mississippi in its recent opinion in Moates v. State, 2024 WL 443397 (Miss.App. 2024).

In Moates,

A Lincoln County grand jury indicted Richard Moates for first-degree murder (Count 1), burglary of a dwelling under circumstances “likely to terrorize the occupants” (home invasion) (Count 2), and simple domestic violence (Count 3) after he went to his estranged wife’s home and shot and killed her boyfriend in front of her. Following a jury trial, Moates was convicted of all counts.

After he was convicted, Moates appealed, claiming that the trial court should have severed the murder charge and/or not have allowed his wife to testify at his trial on all three charges. The Court of Appeals of Mississippi disagreed, ruling as follows:

Moates asserts on appeal that Cortney was incompetent to testify against him on the murder charge because it “does not fall under any of the exceptions [in Rule 601(b)].” Thus, according to Moates, the trial court erred by denying his severance motion. But Moates’s argument ignores the supreme court’s holding in Meeks: where multiple charges involve different victims, and the wife is the victim of one or more of the crimes, then she is competent to testify against her husband if the charges “all ar[i]se out of the same episode or occurrence or…were bound by a common nucleus of operative fact.”…Under these circumstances, a “controversy” exists between the spouses even with respect to crimes in which the wife is not the victim….In other words, “the sanctity of the marriage ha[d] already been destroyed,” so the spousal privilege no longer applied….

These circumstances plainly exist here. Moates killed Cortney’s boyfriend in front of her after invading her home and threatening Cortney that “[n]obody better find out about this.” All three crimes in this case were interwoven and occurred during a short period of continuing violence. Under these circumstances, we find no abuse of discretion in the trial court’s denial of Moates’s severance motion based upon the principles explained in Meeks and Maiben.

-CM