WILBUR H. JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilbur Johnson was convicted of dealing in stolen property, but the appellate court reversed because the trial court improperly admitted his wife's testimony about a conversation with him regarding the stolen property, violating Florida's husband-wife privilege that protects confidential marital communications even in the context of criminal activity.
The husband-wife privilege under Florida law protects confidential communications between husband and wife even when those communications concern or are made in furtherance of criminal activity. The trial court erred in admitting the wife's testimony over the privilege objection.
[1] The husband-wife privilege in Florida does not contain an exception for confidential communications made in furtherance of a crime.
[2] Admitting testimony in violation of the husband-wife privilege can be prejudicial and warrant reversal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 90.504, Florida Statutes (1988), does not except from the husband-wife privilege confidential communications between husband and wife made in furtherance of a crime.”
Establishes that Florida statutory law does not contain an exception to the marital privilege for communications in furtherance of crimes.
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Join FLexlaw to unlock all legal intelligenceJohnson was charged with dealing in stolen property. At trial, his wife testified about a conversation between herself and Johnson regarding the prope…
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PER CURIAM.
Wilbur Johnson appeals from a judgment and sentence for dealing in stolen property. The appellant contends' that the trial court erred in admitting over his objection his wife’s testimony as to a conversation between herself and appellant. The admission of this testimony was prejudicial to the appellant in that it established that he knew the property in question was stolen. We agree with the appellant and reverse.
The objection of appellant’s counsel to the testimony on the basis that the appellant’s statement to his wife was subject to the husband-wife privilege was overruled by the court on the ground that the privilege did not apply to a husband and wife who were committing a crime. That ruling, though consistent with federal law, is contrary to Florida’s statutory and case law.1 Section 90.504, Florida Statutes (1988), does not except from the husband-wife privilege confidential communications between husband and wife made in furtherance of a crime. In the recent case of State v. Arata, 438 So. 2d 1032 (Fla. 1st DCA 1983), this court affirmed a trial court’s order granting a wife’s motion to suppress intercepted telephone conversations between her and her husband concerning joint criminal activity, which conversations had been obtained by a court-authorized order. The order was affirmed on the authority of Smith v. State, 344 So. 2d 915 (Fla. 1st DCA 1977), cert. denied, 353 So. 2d 679 (Fla.1977).
In Smith, the wife had been allowed to testify regarding certain statements made by her husband to her. The husband had shot and killed a man who had been visiting the wife. Over the husband’s objection, the wife was allowed to testify that, after the killing, the husband, when asked by his wife what he had done, replied, “I killed him.” The wife also testified as to a conversation with her husband during which the removal and burial of the victim’s body were discussed.
The State argued, inter alia, that the marital privilege did not apply to communications made in the furtherance of a crime. The appellate court refused “to engraft such an exception upon the marital privilege, again because of the harm it would inflict upon the strong policy underlying the privilege.”
Accordingly, we reverse and remand for a new trial upon the foregoing authority.
ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur. . C. Ehrhardt, 5 Fla.Prac.Evidence, Sec. 504.5 (1982 pocket part at p. 60).
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Jackson v. State, 603 So. 2d 670 (Fla. 4th DCA 1992)…90.504(3)(b), Florida Statutes (1989), the state did not charge him with that crime. As the statute specifically delineates those exceptions to the marital privilege, we are loathe to add additional exceptions. See Smith. See also Johnson v. State, 451 So. 2d 1024 (Fla. 1st DCA 1984). Thus, it was error to allow the testimony. From a reading of the transcript we cannot conclude that this error did not affect the verdict. The appellant also challenges the sufficiency of the circumstantial evidence to support…
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Welsh v. Martinez (M.D. Fla. 2025)…es). Thus, unlike federal law, there is no crime-fraud exception to Florida's husband-wife privilege. Id. (“Florida does not recognize an exception to the husband-wife privilege for communications made in furtherance of a crime.”); Johnson v. State, 451 So. 2d 1024, 1024 (Fla. 1st DCA 1984) (explaining § 90.504 “does not except from the husband-wife privilege confidential communications between husband and wife made in furtherance of a crime"). ⁵ 5 Through supplemental briefing, Welsh argues these communica…
Authorities Cited
- Smith v. State, 344 So. 2d 915 (Fla. 1st DCA 1977)
- State v. Arata, 438 So. 2d 1032 (Fla. 1st DCA 1983)