By: dmc-admin//December 16, 2002//
“We conclude the exception for a proceeding in which one spouse is charged with a crime against a third person “committed in the course of committing a crime against the other,” sec. 905.05(3)(b), applies in this case. Therefore, the trial court properly allowed Richard’s wife’s testimony. …
“In light of the purpose of both the privilege and exceptions in Wis. Stat. sec. 905.05(3)(b), we conclude it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. It is also irrelevant whether a crime against the spouse is the “primary crime” rather than incidental to, or a necessary by-product of, a crime against the third party. The purpose of the third-party exception in para. (3)(b) is best carried out if committing a crime against a third party ‘in the course of’ committing a crime against one’s spouse is interpreted to encompass conduct that is both itself a crime against a third party and a crime against one’s spouse. We therefore conclude that Richard committed sexual assaults against Melissa ‘in the course of’ committing a crime against Tracy within the meaning of sec. 905.05(3)(b).”
Judgment affirmed.
Recommended for publication in the official reports.
Dist II, Waukesha County, Bohren, J., Vergeront, J.
Attorneys:
For Appellant: Bridget E. Boyle, Milwaukee
For Respondent: Lloyd V. Carter, Waukesha; James M. Freimuth, Madison