On appeal from the Superior Court, Law Division, Morris County.
Deighan, R. S. Cohen and Villanueva. The opinion of the court was delivered by R. S. Cohen, J.A.D.
Defendant Ruben Ospina was indicted with his wife Elena and her nephew Ruben Cuartas for conspiracy to possess cocaine with intent to distribute, conspiracy to possess the cocaine, possession of at least one ounce of cocaine with at least 3.5 grams of pure free base, and possession of the cocaine.
Just before trial, Cuartas pleaded guilty to possession with intent to distribute with an agreed sentence cap of fifteen years' imprisonment and a five-year mandatory minimum term. Cuartas agreed to testify truthfully for the State in defendant's trial, and the State agreed to tell the sentencing judge of Cuartas's cooperation.
Tried to a jury with his wife Elena, defendant was convicted of all charges and his wife was acquitted. Essentially, the State's evidence was that Cuartas had a New York source of cocaine; that he arranged with defendant to purchase a kilogram for $38,000; that defendant found customers for a higher price who turned out to be police agents; that after supplying a sample to the customers preparatory to the sale, defendants were arrested and the cocaine was found in defendant's bedroom closet. Defendant's wife testified in her own behalf, corroborating the bulk of the State's case and minimizing her own role.
For possession with intent to distribute, defendant was sentenced to a 30-year term of imprisonment. The other convictions were merged. Defendant made a motion for a new trial. He then withdrew the motion in open court even though the trial judge told him that he planned to grant the motion. Some time later, defendant renewed the motion for a new trial. It was denied on the thesis that it had been withdrawn and thus waived. Defendant appealed.
Defendant raises a number of arguments on appeal. The principal one is that his wife should not have been permitted to testify against him in their joint trial in violation of Evid.R. 23(2). He contends that the testimony was not only improperly
admitted but was also significant evidence against him, because in distancing herself from the criminal situation, his wife described in great detail her observations of his participation.
The issue did not come up until the fourth day of trial, when defendant for the first time moved for an order prohibiting his wife from testifying. He relied on Evid.R. 23(2) which says:
The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse and the accused shall both consent, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is the complainant.
Clearly, none of the stated exceptions applies. The trial judge ruled that he could not prohibit defendant's wife from testifying in her own defense. In those circumstances, he held that defendant had waived the objection by not asserting his privilege until well into trial when it was too late for his wife to move for severance. Defendant expressly and specifically declined to move for severance.
In our view, the trial judge's ruling was sound.
The privilege of a criminal defendant to bar spousal testimony, and of the spouse to refuse to testify, has ancient and twisted roots. It was originally a rule of disqualification, the result of two "canons of medieval jurisprudence," the first that an accused could not testify in criminal proceedings and, the second that his wife was therefore also barred because she had no recognized separate legal existence. Trammel v. United States, 445 U.S. 40, 44, 100 S. Ct. 906, 909, 63 L. Ed. 2d 186, 190 (1980).
The rule of disqualification gradually evolved into one of privilege, see Funk v. United States, 290 U.S. 371, 54 S. Ct. 212, 78 L. Ed. 369 (1933), with an entirely different justification. Its purpose is now conceived of as fostering the harmony and sanctity of the marriage relationship. State v. Briley, 53 N.J. 498, 504-505, 251 A.2d 442 (1969). ...