No. 87-505 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKENNETH DALE NETTLETON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Mayo Ashley, Helena, Montana 

Nicholas Jacques, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Paul D. Johnson, Asst. Atty. General, Helena 

Mike McGrath, County Attorney, Helena, Montana 

Carolyn Clemens, Deputy County Attorney, Helena 

Submitted on Briefs: June 22, 1988 

Decided: ~ugust 22, 1988 

Clerk 
Mr. Justice R.C. McDonough delivered the Opinion of the 

Court. 

Kenneth Dale Nettleton appeals from the judgment of the 

District Court of the First Judicial District, Lewis and 

Clark County, entered upon a jury verdict finding him guilty 

of deliberate homicide, a felony. We affirm. 

Nettleton presents one issue for our review: 

"Should two of the witnesses, both former spouses, have 

been allowed to testify regarding communications made to them 

during the marriage?" 

On November 7, 1986, Nettleton was charged with the 1977 

deliberate homicide of Gayla Sue Brisson. On March 18, 1987, 

Nettleton filed a motion to exclude the testimony of Candace 

Semenze and Magdelina DuMontier relating to statements made 

by Nettleton to the two women while married to them. 

According to Nettleton, Semenze was his common-law wife from 

June of 1975 until February of 1982, and he was married to 

DuMontier from July of 1983 until June of 1986. He asserted 

that his communications with the two women during marriage 

were privileged under 5 26-1-802, MCA. 

After a hearing on the motion, the District Court 

determined that sufficient evidence had been introduced to 

show a marriage between Nettleton and DuMontier, and between 

Nettleton and Semenze. However, the court denied the motion 

to exclude the testimony of the two women based on exceptions 

to spousal privilege. Both women then testified at trial, 

and are characterized by both parties as important witnesses. 

Semenze testified at length about Nettleton's words and 

actions in her presence on the day of Brisson's death and 

thereafter. Among other things, she testified to seeing a 

scarf in Nettleton's car on the day after Brisson's death 

that was very similar to the one she had seen Brisson wearing 
shortly before she was killed. She also testified about a 

chain of events following Brisson's death, when Nettleton 

told her he had killed Brisson, showed her the body, and 

forced her to assist him in a "cover-up" of the crime. 

Brisson's body was located under a small house trailer on the 

outskirts of Helena. The cover-up consisted of Nettleton and 

Semenze inspecting this trailer with an acquaintance of 

Nettleton's, Chris Nunn, under the pretense of being 

interested in purchasing it. During the inspection, 

Nettleton "discovered" Brisson's body. 

Semenze's testimony about these events is interspersed 

with repeated threats and abusive remarks by Nettleton: 

He was really scaring me; and he said if you tell 

that he would -- if -- he said if you tell anybody 

about this that he would kill me ... 

and we went back to -- back to that little trailer; 

and I was scared; and he pulled up to it; and he 

was scaring me; and he said, "You get out of the 1 f--- ing' car and pretend like you are interested 

in the trailer..." 

Semenze further testified that although she and 

Nettleton were separated at the time of the killing, he 

forced her--again under threat of death--to move back in with 

him. While living with Nettleton, she was continually 

subjected to threats concerning what would happen to her or 

her baby should she ever disclose Nettleton's connection to 

Brisson's death. According to Semenze's testimony, these 

threats were sometimes accompanied by physical violence: 

He was always picking on me and threatening me, 

shoving me around and telling me that he would take 

[the baby] ; and he said, "If you run, you can run 

to Texas; and I will find you;" and I just couldn't 

sleep. I was scared that he would do something. I 

was scared he was going to do something to [the 

baby]. I just didn't want to live with him but he 

made me live with him. 
Semenze also testified about an occasion shortly after 

Brisson's death when she and Nettleton were riding in a 

pickup driven by Nettleton's brother. Nettleton had his 

brother stop on a bridge so he could throw a knife into the 

creek "to wash the finger prints off." 

DuMontier likewise testified as to threats directed at 

her by Nettleton, as well as a "warning" from Nettleton's 

brother. DuMontier, like Brisson, had red hair. She 

testified that after having an argument with Nettleton at a 

tavern, she was warned by Nettleton's brother not to anger 

him because "Ken had already killed a red-headed girl." 

DuMontier also testified that when she later asked Nettleton 

about his brother's warning, he admitted to her that he had 

killed Brisson. She further testified that after she and 

Nettleton were divorced, he came to her house on at least one 

occasion and, according to DuMontier, "he got mad and started 

slapping me and just said that--called me Ga[ylla and said 

that I should should be dead already because he had killed me 

years ago." 

On March 27, 1987, the jury returned its verdict finding 

Nettleton guilty of deliberate homicide. On August 25, 1987, 

the District Court sentenced Nettleton to 60 years in the 

Montana State Prison and denied his motion for a new trial. 

This appeal followed. 

Before proceeding to the main issue framed by Nettleton, 

we will dispose of a preliminary question raised by the 

State. The State's argument to the District Court and its 

brief on appeal emphasize that Nettleton and Semenze were 

never married. According to the State, the alleged 

common-law marriage between the two did not have the four 

elements necessary under Montana common law: capability, 

agreement, cohabitation and reputation (citing Matter of 

Estate of Murnion (Mont. 1984), 686 P.2d 893, 41 St.Rep. 
1627, and other cases). Whether the relationship between 

Nettleton and Semenze fit the legal definition of common-law 

marriage was a question of fact for the District Court to 

decide. That decision must be upheld if there is 

substantial, credible evidence in the record to support it. 

Griffel v. Cove Ditch Co. (Mont. 1984), 675 P.2d 90, 41 

St.Rep. 1. 

The record shows that while Semenze denied the existence 

of the marriage in her testimony, she and Nettleton lived 

together, had a child, opened and used a joint checking 

account, and filed joint income tax returns for two 

consecutive years. The record also shows the filing of a 

joint petition for divorce signed by Semenze and Nettleton. 

This evidence provides a sufficient basis for the District 

Court's decision that Nettleton and Semenze considered 

themselves married, and we will conduct our review under the 

assumption that the marriage existed. 

The issue on review is thus the exceptions to spousal 

privilege adopted by the District Court and contested on 

appeal by Nettleton. Section 26-1-802, MCA, is Montana's 

spousal privilege statute: 

Spousal Privilege. A husband cannot be examined 

for or against his wife without her consent or a 

wife for or against her husband without his 

consent; nor can either, during the marriage or 

afterward, be, without the consent of the other, 

examined as to any communications made by one to 

the other during the marriage; but this exception 

does not apply to a civil action or proceeding by 

one against the other or to a criminal action or 

proceeding for a crime committed by one against the 

other. 

Nettleton argues that the District Court misapplied S 

26-1-802, MCA, and the exceptions found by the court to allow 

testimony by Semenze and DuMontier are contrary to existing 
case law. However, if the District Court's ruling was 

correct, we will affirm it irrespective of the reasoning used 

to support it. Norwest Bank of Billings v. Murnion (Mont. 

1984), 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136. 

At the outset, we note the statute's wording, which 

protects communications made by one to the other during the 

marriage." Given this wording, some of the testimony 

disputed by Nettleton does not come within the privilege 

afforded by 5 26-1-802, MCA. Testimony by DuMontier 

concerning Nettleton's actions and statements after the two 

were divorced is not at issue here, because those statements 

were not made during marriage. Nor is testimony by Semenze 

or DuMontier involving statements or actions by persons other 

than Nettleton at issue, because those were not 

communications by one spouse to the other. 

The doctrine of spousal privilege has its roots in 

English common law. The original doctrine was based on the 

archaic principle that a husband and wife were a single legal 

entity, and therefore could not testify against one another. 

See 8 J. Wigmore, Wigmore on Evidence S 2228, at 214-15 (J. 

McNaughten ed., 1961). The doctrine arrived in this country 

via the common law, being first recognized by the United 

States Supreme Court in Stein v. Bowman (1839), 38 U.S. 209. 

Most states have subsequently codified spousal privilege. 

The original form of 5 26-1-802, MCA, was enacted by the 

Montana legislature in 1867. 

As the doctrine of spousal privilege has undergone 

changes over time, so has Montana's statute. Section 

26-1-802, MCA, has been amended or re-enacted 15 times. 

Changes made to spousal privilege by various courts and 

legislatures have drawn criticism from modern commentators, 

who say the somewhat piece-meal approach of carving out 

exceptions to the original rule has made the nation-wide body 
of law on spousal privilege confusing and sometimes 

contradictory. See McCormick on Evidence, §§ 78 et seq. (E. 

Cleary ed.,, 1984). The current form of § 26-1-802, MCA, 

contains two of the more common exceptions found in other 

states: spouses can testify in a civil action by one against 

the other, or a criminal proceeding for a crime committed by 

one against the other. 

In light of the criticism aimed at the sometimes 

confusing state of spousal privilege law, we will address the 

exceptions relied on by the District Court with an eye toward 

keeping what is still a fairly small body of law in Montana 

as uncluttered as possible. We are aided in this approach by 

the fact that much of Montana case law interpreting 5 

26-1-802, MCA, and its predecessors has a common thread: in 

order to be protected by the privilege, proffered testimony 

must possess certain threshold characteristics of marital 

communications. 

The District Court found one exception to spousal 

privilege for Semenze's testimony as to what she had observed 

at the time of the homicide. We have previously held that 

exclusion of testimony through spousal privilege requires 

that the testimony deal with "communications only, that is 

utterances and not acts." State v. Houchin (1967), 149 Mont. 

503, 507, 428 P.2d 971, 973. See also United States v. 

Bolzer (9th Cir. 1977), 556 F.2d 948, 951 (reviewing a case 

from the U.S. District Court for the District of Montana, and 

holding the privilege applies only to "utterances or 

expressions intended by one spouse to convey a message to the 

other") . We have also held that spouses may testify about 

their feelings that result from privileged communications. 

Matter of J.H. (1982), 196 Mont. 482, 487, 640 P.2d 445, 448. 

At a minimum, then, the communication for which privilege is 

sought must be an utterance or other expression intended to 
convey a message to the other spouse. Testimony by Semenza 

or DuMontier as to observations of Nettleton's actions; 

physical evidence such as Brisson's body, her scarf or 

Nettleton's knife; and feelings such as the fear induced by 

Nettleton's threats and other behavior do not meet this 

minimum, and were therefore admissible. 

This Court also recognizes that a spouse can waive 

spousal privilege by making the allegedly privileged 

communications in the presence of a third party. In re 

Marriage of Sarsfield (1983), 206 Mont. 397, 671 ~.2d 595. 

The terms of our early discussion of this waiver show another 

required characteristic of privileged marital communications. 

In Thompson v. Steinkamp (19471, 120 Mont. 475, 187 P.2d 

1018, we said, 

The court was right in overruling defendant's 

objection to the testimony of Mrs. Thompson under 

the circumstances. Mr. Thompson -- did not regard the 

communications - in question - as confidential in any 

sense because, as above noted, the court was 

warranted in finding that he made the 

communications to others besides his wife. 

Thompson, 187 P.2d at 1021 (emphasis added). Communications 

that pass the threshold of being utterances intended to 

convey a message must also be regarded by the communicating 

spouse as being at least somewhat confidential. Section 

26-1-801, MCA, the statute that sets forth the policy behind 

Montana's privilege statutes, reads as follows: 

Policy to protect confidentiality in certain 

relations. There are particular relations in which 

it is the policy of the law to encourage confidence 

and to preserve it inviolate; therefore, a person 

cannot be examined as a witness in the cases 

enumerated in this part. 
The policy set forth in S 26-1-801, MCA, applies to the 

spousal privilege in $ 26-1-802, MCA, and meshes with that 

found in the laws of most states: 

Most statutes expressly limit the privilege to 

"confidential communications." However, even where 

the words used are "any communication" or simply 

"communications," the notion that the privilege is 

born of the "common law" and the fact that the 

pre-statutory descriptions of the privilege had 

clearly based it upon the policy of protecting 

confidences, have actuated most courts to read into 

such statutes the requirement of confidentiality. 

McCormick S80, at 193, and authorities cited therein. 

Semenze's testimony as to statements made by Nettleton in the 

presence of Chris Nunn while feigning interest in purchasing 

the house trailer, and Nettleton's statement that he was 

throwing his knife into the creek in order to wash off 

fingerprints, was therefore proper. The presence of third 

parties indicates that Nettleton did not intend those 

statements to be confidential. 

The District Court also found an exception to the 

privilege for statements made by Nettleton while beating or 

threatening DuMontier and Semenze. The court found this 

exception in this Court's reasoning from Sarsfield. In 

Sarsfield, we began with the proposition that the purpose 

behind spousal privilege is to preserve the sanctity of the 

marriage and home, citing our decisions in J.H. and State v. 

Taylor (1973), 163 Mont. 106, 515 P.2d 695. We also said, 

"This privilege, however, is subject to the maxim that, when 

the reason for a rule ceases to exist, so then should the 

rule. See Section 1-3-201, MCA." Sarsfield, 671 P.2d at 

600. In Sarsfield and J.H., we held that acts of child abuse 

destroyed the sanctity of the marriage and home, and along 

with it the reason or having a spousal privilege. We 
therefore upheld district court decisions utilizing testimony 

of one spouse as to child abuse committed by the other. 

Child abuse, however, presents a nearly unique problem. 

The child is a "third party" to the marital relationship 

insofar as the language of S 26-1-802, MCA, is concerned, and 

yet is an integral part of that relationship. While those 

cases did not fit neatly into the scheme of the statute, 

strong policy considerations called for admission of 

testimony that might constitute the only available probative 

evidence. Child abuse has generated a large body of law in 

various jurisdictions, and has come to be regarded in a 

growing number of states a crime against the non-abusing 

spouse, and therefore an exception to the privilege. See 2 

Wharton's Criminal Evidence S 367, at 471-73, (C. Torcia ed., 

1986), and authorities cited therein. In this case, we are 

concerned only with spouses. Rather than muddying the waters 

by attempting to apply the rule from Sarsfield and J.H. to 

the present situation, we will evaluate the District Court's 

ruling in light of the threshold characteristics outlined 

above. 

As stated above, the body of Montana law on the subject 

of spousal privilege is fairly small. However, states with 

statutes similar to S 26-1-802, MCA, furnish guidance as to 

how the privilege applies in cases of cruelty or abuse by one 

spouse against the other. A trend has developed that is 

enlightening: 

[Ilt has been held by most courts that a spouse's 

testimony as to acts of cruelty or abuse is 

admissible on the ground that no confidential 

communication is involved, or that the information 

was not gained as a result of the marital relation. 

81 Am Jur 2d, Witnesses, § 167. The spousal privilege 

statute in the state of New York reads in relevant part: 
A husband or wife shall not be required, or, 

without the consent of the other if living, 

allowed, to disclose a confidential communication 

made by one to the other during marriage. 

CPLR 5 4502 (b) . In People v. Melski (N.Y. 1961), 176 N.E.2d 

81, and more recently in People v. D'Amato (N.Y. Sup. Ct. 

1980), 430 N.Y.S.2d 521, the courts of New York have held 

that threats are not confidential marital communications 

protected by the privilege: 

The statutory privilege covers only those private 

exchanges which "would not have been made but for 

the absolute confidence in, and induced by, the 

marital relationship." . . . 

defendant's confessed involvement in the fire at 

the Blackwell apartment did not come as a 

remorseful outpouring of guilt and anxiety to his 

wife; rather his admission to the arson was an 

inseparable part of his larger threat to burn down 

the homes of his wife's closest relatives ... 

Such words of abuse and cruelty uttered with the 

intent to injure the other spouse fall outside of 

the privilege's protection. 

D'Arnato, 430 N.Y.S.2d at 522, 524. 

The spousal privilege statute in the state of Washington 

is even more similar to our own, and reads in relevant part: 

A husband shall not be examined for or against his 

wife, without the consent of the wife, nor a wife 

for or against her husband without the consent of 

the husband; nor can either during marriage or 

afterward, be, without the consent of the other, 

examined -- as to any communication made & --- one to the 

other during marriage. 

RCWA 5.60.060(1) (emphasis added). In State v. Moxley (Wash. 

Ct. App. 1971), 491 P.2d 1326,the Washington Court of Appeals 

held the defendant's threat to kill his wife was not a 
communication induced by the marital relationship, and 

therefore was not privileged. 

A full and workable definition of the threshold for 

communications between spouses deemed privileged would thus 

require two elements. First, the communications must be 

utterances or other expressions intended to convey a message 

from one spouse to the other. Second, the message must be 

intended by the communicating spouse to be confidential in 

that it was conveyed in reliance on the confidence of the 

marital relationship. 

The testimony of both Semenze and DuMontier contains 

admissions by Nettleton that he had killed Brisson, as well 

as comments about the method he used. However, with only one 

exception, these statements were not, as the court in D'Amato 

put it, "remorseful outpouring[sl of guilt and anxiety" to 

the two women. They were instead an effort to terrify and 

intimidate the women into keeping silent about Brisson's 

death, and in Semenze's case, to induce her to cooperate in a 

cover-up and then live in Nettleton's home under his control. 

Nettleton did not rely on the confidence of his marital 

relationships with Semenze and DuMontier. He relied on fear 

and intimidation. His threatening statements do not possess 

the threshold characteristics of confidential marital 

communications protected by spousal privilege. 

A review of the trial transcript reveals that the vast 

majority of the testimony by DuMontier and Semenze was 

outside the scope of the protection of § 26-1-802, MCA. Most 

of DuMontier's testimony concerned communications with 

Nettleton when the two were not married. Indeed, DuMontier's 

most damaging testimony concerned Nettleton's statements 

calling her Gayla and telling her she should be dead because 

he had killed her years before. This incident occurred after 

Nettleton and DuMontier were divorced. Semenze's testimony 
consisted largely of threats by Nettleton to induce her 

cooperation and silence, which do not merit spousal 

privilege. The one clear instance of testimony that should 

have been protected by the privilege--Nettleton1s admission 

to DuMontier in response to her question while they were 

married--simply restates the same information contained in 

the far greater number of non-privileged statements. The 

failure of the District Court to exclude this testimony was 

therefore harmless error. See State v. Shaw (1982), 199 

Mont. 248, 648 P.2d 287. 

We affirm the decision of the District Court. 

We Concur: A 

He. 

Justice 

A