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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                             FILED

                                                                         April 10, 2012

                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29085-9-III
                                                )
                      Respondent,               )
                                                )         Division Three
       v.                                       )
                                                )
TOBIAS ALLEN PRITCHARD,                         )
                                                )         UNPUBLISHED OPINION
                      Appellant.                )
                                                )

       Siddoway, J.  --  Washington recognizes two distinct evidentiary privileges 

between a husband and wife: a testimonial privilege, which, if invoked, places a party's 

husband or wife off-limits as a witness against his or her spouse with only a few 

exceptions, and a communication privilege, which more narrowly protects spousal 

confidences.  Both privileges can be waived.  At issue in this case is whether Tobias 

Pritchard raised both privileges after being charged with possession of a stolen motor 

vehicle or only one, and whether, once privilege was raised, the trial court erred in 

admitting certain testimony from his wife, Sonya Pritchard.  The record reveals that Mr. 

Pritchard invoked only the confidential communication privilege.  While the trial court  

No. 29085-9-III
State v. Pritchard

admitted Ms. Pritchard's testimony to one confidence in error, it was harmless error.  We 

affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       On an evening in February 2010, Sonya Pritchard arrived home to find her 

husband, Tobias Pritchard, from whom she was separated, standing on her porch with his 

girl friend, Linda Galvan, and a few others. Mr. Pritchard had stopped for an unplanned 

visit to see his children.  Ms. Pritchard was upset that he showed up uninvited and with 

Ms. Galvan.  She called 911 and let her husband know that she had called the police.  

       Mr. Pritchard left before the police arrived.  According to the officers, Ms. 

Pritchard told them that her husband had been driving an unfamiliar Dodge truck.  She

stated or implied that it was stolen.  She provided officers with the truck's license plate

number, which she had written down.  She also told officers that her husband was living 

at the All Star Motel, in room 142.  

       Deputy Sean Moore ran a check on the license plate, which the Department of 

Licensing reported back had been issued for a blue and white Ford truck.  Ms. Pritchard 

was adamant that the truck was a newer Dodge pickup with an extended cab.  Officers 

later testified that it is common practice for thieves to replace the license plates on a 

stolen vehicle with plates from a vehicle that is not stolen, in order to avoid detection.  

       Based on the information provided by Ms. Pritchard, the officers proceeded to the 

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State v. Pritchard

All Star Motel, where they found a Dodge truck meeting her description, including the

reported license plate, in a parking stall adjacent to room 142.  Deputy Moore was able to 

see the vehicle identification number for the truck through the driver's side window and 

ran it through dispatch, receiving a report back confirming that the truck was stolen.  The 

deputy then went to the motel office and spoke with manager Maria Meeks, who told him

that room 142 was being rented by Mr. Pritchard and Linda Galvan.  When asked 

whether she had seen Mr. Pritchard driving the Dodge truck parked next to the room, Ms. 

Meeks said she had, and that renters were asked to park their vehicles in the stall adjacent

to their room. 

       Officers made several phone calls to room 142 in an effort to speak to anyone 

inside, but no one answered.  They applied for and obtained a search warrant, obtained a 

key to the room from Ms. Meeks, and knocked and announced themselves.  When they 

still received no response, they used the key and entered.  They found Mr. Pritchard and 

Ms. Galvan in the room, sprawled across the bed, asleep.  The keys to the Dodge truck 

were on the nightstand.  Mr. Pritchard was arrested and charged with possession of a 

stolen motor vehicle.  

                       Pretrial Consideration of the Marital Privilege

       On the morning of trial, the prosecutor informed the court that he intended to call

Ms. Pritchard as a witness to testify to information she provided to the officers, but 

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State v. Pritchard

wanted to make sure he did not invade the "spousal privilege." Report of Proceedings 

(RP) (May 10, 2010) at 10.  When asked to respond, defense counsel stated that Ms. 

Pritchard had called him late that prior week, "frantic about that issue."  Id.  He 

explained,

       I told her she needs to talk to [the prosecutor].  I couldn't advise her legally 
       or give her legal advice.  I guess we could run into other hearsay issues 
       about that and address that as it comes up.
              My understanding from her, she may either retract or say the officers 
       were putting words in her mouth.

Id. at 10-11.  The trial court said it would review the statute dealing with the evidentiary 

privilege of spouses in light of the potential issue.  The court proceeded with jury 

selection and then broke for lunch.

       When court reconvened in the afternoon, the prosecutor informed the court that 

Ms. Pritchard had arrived but informed him that "she's not willing to get up there on the 

stand and testify," explaining that her objection tied into the marital privilege issue.  Id.

at 12.  In the ensuing colloquy between the court and counsel, almost all references were 

to the "spousal privilege."  The prosecutor expressed his continuing view that, "I didn't 

think in the statute that it would disqualify her testimony, my understanding of what she 

would testify to," but added that "she's not willing to testify" but "did say that if she were 

ordered to she would testify."  Id.

       When asked to respond, defense counsel spoke again about his earlier conversation 

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No. 29085-9-III
State v. Pritchard

with Ms. Pritchard and stated:

              I did listen to her.  She was very adamant about potential spousal 
       privilege, also the fact that she indicated to me that she disputed a lot of 
       what was being alleged that she said.
              I guess I don't necessarily mind her being up there.  She indicated to 
       me previously that she would indicate she was lying out of jealousy and 
       anything that was said was based on that or stuff that was taken out of 
       context.  She may end up being a witness for the defense as well as the 
       state.

Id. at 13.  When defense counsel was asked by the court if Ms. Pritchard wanted to testify 

for the defense, he answered:

       I don't think she wants to testify at all.  I don't think she wants to be 
       involved is my impression.  She was bringing up the spousal privilege quite 
       a bit.

Id.  The court then asked directly whether the defendant was asking to have the spousal 

privilege invoked.  At that point, defense counsel stated "[w]e would ask the privilege to 

be invoked," but immediately added, "I'll leave it up to your Honor.  I'm not sure it 

applies here." Id. at 14.  In explaining why he thought the privilege might not apply,

defense counsel contrasted, as an example, Ms. Pritchard's observations of the truck from 

"any statements [Mr. Pritchard] made to her or allegedly made to her."  Id.  

       From that point on, discussion of testimony from Ms. Pritchard that might be 

excluded focused solely on her communications with Mr. Pritchard.  As the colloquy

continued, the court occasionally read into the record pertinent observations about 

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No. 29085-9-III
State v. Pritchard

privilege from a treatise it had brought onto the bench; the excerpts dealt strictly with 

confidential communications. After several moments of discussing the privilege for

confidential communications, the court observed, "I actually think that we're all on the 

same page." Id. at 18.  It nonetheless directed the lawyers to run through an examination 

of Ms. Pritchard outside the presence of the jury to determine what her testimony would 

be in aid of making rulings.  

       During this preview examination, the State elicited Ms. Pritchard's testimony that 

she had insisted that Mr. Pritchard tell her where he was staying if he wanted overnight 

visitation with her daughter.  It was in that connection that she learned he was staying in 

room 142 at the All Star Motel.  When cross-examined by defense counsel, Ms. Pritchard 

testified:

       Q.     Ms. Pritchard, was anybody after Mr. Pritchard, collection people or 
              anything?  You said the sheriff was trying to serve a no contact 
              order.
       A.     Yeah.
       Q.     So is it your understanding he did not want anybody else to know he 
              was there?
       A.     No, he didn't.
       Q.     Okay.  So is it your understanding he told you where he was in 
              confidence so you'd know where the daughter was?
       A.     Yes.

Id. at 28 (emphasis added).  

       Having heard this preview of Ms. Pritchard's testimony, the trial court discussed 

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No. 29085-9-III
State v. Pritchard

the examination it would allow.  In the process, it inferred an objection from the defense 

and ruled on it as follows:

              As far as the information about where [Mr. Pritchard] was staying, 
       let me focus on that next.  The defense argues that that is confidential 
       information because he didn't want anybody to know he's there. Yet it's 
       done for the purpose of visitation.  I guess I don't view that to be 
       confidential in the context of the statute itself.  I would allow her to testify 
       that that was the location given for purposes of visitation with the daughter.

Id. at 30 (emphasis added).

                                             Trial

       The State called Ms. Pritchard as its first witness.  She testified that she had never 

seen Mr. Pritchard driving the Dodge truck.  She admitted having told officers something 

different, but stated that she did so out of anger; she wanted to get Mr. Pritchard arrested 

and jailed.  She testified that during the February time frame she had never seen Mr. 

Pritchard drive anything other than a Jeep that he owned; it was the Jeep that Mr. 

Pritchard was driving when he picked up her daughter for overnight visitation while 

staying at the All Star Motel, and when she occasionally drove past the All Star Motel 

checking on her husband, it was his Jeep that she saw parked near room 142.

       In addition to testimony from Deputy Moore and Lieutenant Nolan Wentz with the 

Yakima Police Department, who applied for and obtained the search warrant, the State 

presented testimony from Ms. Meeks.  She testified that on the day of his arrest, Mr. 

                                               7 

No. 29085-9-III
State v. Pritchard

Pritchard was staying in room 142, which he and/or Ms. Galvan had been renting since 

February 10.  She testified that she had first seen Mr. Pritchard driving the Dodge pickup 

several days before he was arrested.  She recalled commenting to Mr. Pritchard about the 

truck, because he had earlier been driving a Jeep.  According to her, Mr. Pritchard said 

the Jeep had broken down and described the Dodge pickup as belonging to him, referring 

to it as "my pickup."  Id. at 89.  She testified that in the several days that Mr. Pritchard

drove the Dodge pickup and parked it outside his room, she never saw anyone else drive 

it.  

       Mr. Pritchard was the only witness called by the defense.  He testified that he met 

Ms. Galvan, a drug user, only a month before his arrest, after he relapsed into 

methamphetamine use and left Ms. Pritchard and his children.  According to him, Ms. 

Galvan borrowed the truck from a friend of hers after his Jeep broke down.  He did not 

know the name of her friend.  He denied knowing that the truck had been stolen.  He 

admitted he had driven the truck but denied ever having told Ms. Meeks it was his.  He 

testified that Ms. Galvan had lived at the All Star Motel for over a year and had become 

close friends with Ms. Meeks; Ms. Meeks sometimes let Ms. Galvan help clean rooms to 

cover rent and referred to Ms. Galvan as "Mija," a term of affection.  RP (May 11, 2010) 

at 135.  He claimed to have "no clue" where Ms. Galvan was by the time of trial.  Id.  On 

cross-examination, the State impeached Mr. Pritchard's credibility with his 2007 

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No. 29085-9-III
State v. Pritchard

conviction for theft in the second degree. 

       Defense counsel argued to the jury that the State had more reason to believe that 

Ms. Galvan was in possession of the stolen truck than Mr. Pritchard, but had been led 

down the wrong path from the beginning by Ms. Pritchard's allegations -- allegations she 

now admitted had been false.  He argued that Ms. Meeks was lying to protect her friend, 

Ms. Galvan.  

       The jury found Mr. Pritchard guilty of possessing the stolen truck.  He appeals.

                                         ANALYSIS

       Mr. Pritchard contends that the trial court violated his rights by (1) compelling his 

wife to testify after the testimonial privilege was invoked and/or (2) permitting Ms. 

Pritchard to testify to his location, which he contends was a confidential communication 

exchanged during the marriage.

                                               I

       We first consider Mr. Pritchard's argument that the trial court violated his rights 

by "compelling his wife to testify against him at trial." Br. of Appellant at 1.  We review 

a trial court's ruling on evidentiary rulings for abuse of discretion.  State v. Powell, 126 

Wn.2d 244, 258, 893 P.2d 615 (1995); State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 

1239 (1997); see also Dietz v. John Doe, 131 Wn.2d 835, 845-46, 935 P.2d 611 (1997) 

(attorney-client privilege); State v. Glenn, 115 Wn. App. 540, 62 P.3d 921 (2003) (clergy-

                                               9 

No. 29085-9-III
State v. Pritchard

penitent privilege).  A trial court abuses its discretion when its exercise of discretion is 

"'manifestly unreasonable or based upon untenable grounds or reasons.'"  State v. 

Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002) (quoting Powell, 126 Wn.2d at 258).  

"When the trial court bases an otherwise discretionary decision solely on application of a 

court rule or statute to particular facts, the issue is one of law, which is reviewed de novo 

on appeal."  State v. Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123 (1994). 

       Error may not be predicated upon a ruling that admits evidence unless a timely 

objection or motion to strike is made, stating the specific ground of objection, if the 

specific ground was not apparent from the context.  ER 103(a)(1).  Appellate courts will

only consider the specific challenges that were raised at trial.  State v. Guloy, 104 Wn.2d 

412, 422, 705 P.2d 1182 (1985).

       RCW 5.60.060(1) addresses privileged communications as a basis for 

disqualifying a witness.  With respect to marital privileges, it provides:

       A spouse or domestic partner shall not be examined for or against his or her 
       spouse or domestic partner, without the consent of the spouse or domestic 
       partner; nor can either during marriage or during the domestic partnership 
       or afterward, be without the consent of the other, examined as to any 
       communication made by one to the other during the marriage or the 
       domestic partnership. 

       The first and broader privilege -- as applied here, that Ms. Pritchard "shall not be 

examined for or against" Mr. Pritchard, "without the consent of the spouse or domestic 

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No. 29085-9-III
State v. Pritchard

partner" -- is the testimonial privilege.  Barbee v. Luong Firm, P.L.L.C., 126 Wn. App.

148, 155, 107 P.3d 762 (2005).  It is sometimes referred to as a rule of spousal 

incompetency because it operates to entirely preclude a witness's testimony.  State v. 

Thornton, 119 Wn.2d 578, 580, 835 P.2d 216 (1992). The testimonial privilege reflects 

the "'natural repugnance'" of having one spouse testify against the other, and it prevents 

one spouse from "having to 'choose between perjury, contempt of court, or jeopardizing 

the marriage.'"  Barbee, 126 Wn. App. at 155 (internal quotation marks omitted) (quoting 

State v. Burden, 120 Wn.2d 371, 375, 841 P.2d 758 (1992)).  Once the testimonial 

privilege is asserted, the trial court does not have discretion to refuse to honor it where it 

directly applies.  Id. at 159.  If it directly applies, the spouse is excluded as a witness as to 

any matter.  State v. Tanner, 54 Wn.2d 535, 537, 341 P.2d 869 (1959).  

       The privilege may be waived.  State v. Clark, 26 Wn.2d 160, 168, 173 P.2d 189 

(1946).  "It is personal to the persons designated by the terms of the statute, and they may 

expressly or impliedly waive their right to exclude the banned evidence."  Id. (citing State 

v. Frye, 45 Wash. 645, 89 P. 170 (1907)).  It is therefore held to apply only when a

spouse demands it by timely objection, before the testimony.  Id. at 168-69; see also 

Tanner, 54 Wn.2d at 537 (ruling that the spouse did not waive the privilege by failing to 

object during the trial because the spouse objected in a pretrial motion).  Mr. Pritchard 

argues that both he and Ms. Pritchard timely raised the testimonial privilege. Br. of 

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No. 29085-9-III
State v. Pritchard

Appellant at 3.  

       We consider first whether Mr. Pritchard asserted the privilege on his own behalf.  

By no fair reading of the trial record did Mr. Pritchard invoke the testimonial privilege.  

He never referred to a "testimonial" privilege.  More importantly, nothing in his argument 

to the trial court suggested that he was invoking a privilege that would entitle Ms. 

Pritchard to refuse to testify or entitle him to exclude her as a witness.  To the contrary, 

defense counsel stated, e.g., that "I guess I don't necessarily mind [Ms. Pritchard] being 

up there" and, even after invoking spousal privilege on behalf of his client, he stated, "I'm 

not sure it applies here." RP (May 10, 2010) at 14.  He told the court, "[Ms. Pritchard]

may end up being a witness for the defense as well as the state."  Id. at 13.  When the 

trial court analyzed the privilege issue relying on a treatise's discussion of the privilege 

for confidential marital communications, defense counsel never suggested that the court 

was analyzing the wrong privilege.  Like the trial court and the State, defense counsel 

focused on whether particular matters to which Ms. Pritchard could testify were marital 

communications and whether they were confidential.  Not having raised the testimonial 

privilege as an issue in the trial court, Mr. Pritchard cannot raise it for the first time on 

appeal.  RAP 2.5(a).

       Turning next to Ms. Pritchard's categorical objection to testifying, it no doubt

presented a stronger basis for excluding her as a witness at the trial court level.  But her 

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No. 29085-9-III
State v. Pritchard

objection does not avail Mr. Pritchard on appeal.  Mr. Pritchard could have relied upon 

her objection as a basis for excluding her as a witness, but he did not.  Although the 

parties do not address the issue, we assume without deciding that the trial court could 

have excluded Ms. Pritchard as a witness sua sponte based on her expressed objection to 

testifying.  But since Mr. Pritchard never relied on Ms. Pritchard's objection to testifying 

as a basis for excluding her as a witness in the trial court, he may not rely on it for the 

first time on appeal.  Id.; cf. People v. McWhorter, 47 Cal. 4th 318, 374-75, 97 Cal. Rptr. 

3d 412, 212 P.3d 692 (2009) (defendant did not have standing to complain of the trial 

court's asserted failure to inform his wife of her statutory marital privilege).  The court 

was not obliged to exclude Ms. Pritchard sua sponte.  Cf. People v. Resendez, 12 Cal.

App. 4th 98, 106-08, 15 Cal. Rptr. 2d 575 (1993) (trial court does not have a duty to 

advise a witness of the spousal privilege).

       A decision by Mr. Pritchard to waive the testimonial privilege is understandable. 

Had Ms. Pritchard been excluded as a witness, her exclusion would not have prevented 

the State from presenting the testimony of law enforcement officers and Ms. Meeks 

establishing that the truck was stolen, that Mr. Pritchard had been driving it, and that he 

had characterized it to Ms. Meeks as his truck.  Ms. Pritchard's privilege against 

testifying at trial has no bearing on the State's right to have used her earlier statements as 

a basis for investigation, including as probable cause for the search warrant.  State v. 

                                               13 

No. 29085-9-III
State v. Pritchard

Bonaparte, 34 Wn. App. 285, 289, 660 P.2d 334 (1983). In the end, Ms. Pritchard's 

testimony was not essential to the State's case.  But it did provide a basis for a defense 

argument that officers never considered the possibility that Mr. Pritchard was innocent, 

having been misled from the start by false information from his angry wife.

       The trial court committed no error here.

                                               II

       Mr. Pritchard argues that the marital privilege for confidential communications 

was invoked and that the trial court erred in allowing the State to inquire into his 

confidential disclosure to his wife of where he was living.  He asserts that in admitting 

the communication because "[it was made] for the purpose of visitation," RP (May 10, 

2010) at 30, the trial court created a new and unwarranted "visitation" exception to the 
privilege.1  

       The confidential communication privilege prevents a spouse from being examined 

as to any confidential communications made by one to the other during the marriage.  

State v. Thorne, 43 Wn.2d 47, 55, 260 P.2d 331 (1953).  "To fall within the privilege, a 

communication must have been induced by the marriage relationship."  State v. Webb, 64 

       1 The State points out that Mr. Pritchard never actually raised an objection, which 
is true.  But the trial court inferred an objection from defense counsel's questioning of 
Ms. Pritchard, treated it as an objection, and explained why it was going to deny the 
inferred objection.  This is sufficient to preserve the issue for appeal.

                                               14 

No. 29085-9-III
State v. Pritchard

Wn. App. 480, 487, 824 P.2d 1257 (1992); see Breimon v. Gen. Motors Corp., 8 Wn. 

App. 747, 750, 509 P.2d 398 (1973) (stating that the scope of the privilege "embraces all 

knowledge communicated to a spouse because of the relationship").  The privilege is 

intended to encourage the free exchange of confidences in order to encourage mutual 

understanding and trust between the spouses.  Webb, 64 Wn. App. at 487.  

       The State defends the trial court's ruling, arguing that it was not creating an 

exception but only recognizing that at issue was a geographical location, not a 

communication.  But Ms. Pritchard testified that her knowledge of where her husband 

was living was obtained from him. She believed he disclosed it in confidence, and 

explained why.  Common law treats marital communications as presumptively 

confidential.  Blau v. United States, 340 U.S. 332, 333, 71 S. Ct. 301, 95 L. Ed. 306

(1951).  The assumption is strengthened if confidentiality is expressly affirmed or if the 

subject is such that the communicating spouse would probably desire that the matter be 

kept secret.  1 McCormick on Evidence § 80, at 330 (John W. Strong ed., 5th ed. 1999).  

Washington cases have held that the term "communication" within the meaning of the 

confidential communication privilege should be given a "'liberal construction'" and may 

include even the act of a spouse, if it is one "'which would not have been done by one 

spouse in the presence of, or within the sight of, the other, but for the confidence between 

them by reason of the marital relation.'"  State v. Robbins, 35 Wn.2d 389, 393, 213 P.2d 

                                               15 

No. 29085-9-III
State v. Pritchard

310 (1950) (quoting 70 C.J. Witnesses § 520, at 388 (1935)).  A wife's communication to 

her husband as to where she is living, conveyed in confidence, falls within the common 

law privilege for confidential communications.  Blau, 340 U.S. at 334 (expressing "no 

doubt" that husband was entitled to claim a confidential communication privilege rather 

than disclose the whereabouts of his wife, learned from her, at a time when she was 

hiding out to avoid being served with process).  A husband's communication enjoys the 

same protection.

       The State more persuasively argues that even if Mr. Pritchard's disclosure of his 

address was a confidential communication and should not have been admitted, the error 

was harmless.  An error in admitting evidence that does not result in prejudice to the 

defendant is not grounds for reversal.  State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 

1120 (1997).  Since any error in admitting the evidence is nonconstitutional error, it is not 

prejudicial "unless, within reasonable probabilities, the outcome of the trial would have 

been materially affected had the error not occurred."  State v. Tharp, 96 Wn.2d 591, 599, 

637 P.2d 961 (1981).  

       Mr. Pritchard argues that if the trial court had not improperly admitted Ms. 

Pritchard's testimony as to her husband's location, "the jury would not have heard about 

[his] lodging at the All Star." Br. of Appellant at 9-10.  But Deputy Moore, Lieutenant

Wentz, and other officers who were present at the motel to help execute the search 

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No. 29085-9-III
State v. Pritchard

warrant were available to testify to Mr. Pritchard's presence in room 142, to the Dodge 

truck being parked outside, and to the keys being found on the nightstand.  Ms. Meeks

was available to testify to having seen Mr. Pritchard (and only Mr. Pritchard) drive the 

truck, and to his statements characterizing it as "my" truck.  Given the evidence 

developed from Ms. Pritchard's lead, her testimony was not necessary evidence or even 

the best evidence.

       The admission of Ms. Pritchard's testimony as to her husband's confidential 

communication of his residence was error, but was harmless.

       We affirm.

       A majority of the panel has determined that this opinion will not be printed in the 

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No. 29085-9-III
State v. Pritchard

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040.

                                                __________________________________
                                                Siddoway, J.

WE CONCUR:

____________________________________
Korsmo, C.J.

____________________________________
Kulik, J.

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