Marrying to invoke spousal privilege can be illegal, high court says

Marrying the prosecution’s star witness to prevent him or her from testifying against you can constitute witness tampering or obstruction of justice, Maryland’s top court unanimously ruled Monday in what prosecutors called an accused murderer’s effort to invoke spousal privilege at his upcoming murder trial.

In its 7-0 decision, the Court of Appeals reinstated Darrayl Wilson’s convictions for tampering and obstruction based on his “corrupt” marriage to Kearra Bannister, whose testimony prosecutors sought to compel in order to link Wilson to the slaying of 29-year-old Crystal Anderson in late 2011 or early 2012.

The Court of Appeals agreed with the state’s argument that Wilson’s wedding over a jailhouse phone was designed not as a precursor to marital bliss but to preclude Bannister from testifying against him.

The high court also rejected as a misreading of the state’s witness-tampering and obstruction-of-justice laws a lower court decision that judges cannot question why people got married in permitting them to invoke the privilege against having one spouse testify against the other.

The Court of Appeals said the question for the jury is not about the sanctity of marriage but whether the newlywed defendant had the “corrupt intent” of tampering or obstructing.

“We conclude that the use of corrupt means involves acting with corrupt intent, i.e. a person uses corrupt means by marrying with the intent to preclude another person from testifying at a criminal proceeding, even though the conduct involved – entering into a marriage — is otherwise lawful,” Judge Shirley M. Watts wrote for the court.

“In this case, irrespective of whether a party to a sham marriage may invoke the spousal testimonial privilege, it was up to the jury to determine whether Wilson’s intent in marrying Bannister was to attempt to preclude her from testifying at his trial by trying to have her invoke the privilege, i.e. whether Wilson acted with corrupt means,” Watts wrote. “By finding Wilson guilty of witness tampering and obstruction of justice, the jury answered the question in the affirmative.”

Wilson ultimately did not go to trial for Anderson’s slaying as he pleaded guilty last October to conspiracy to commit second-degree murder and was sentenced in December to 20 years in prison by Charles County Circuit Judge H. James West.

Joseph B. Tetrault, Wilson’s attorney in the tampering and obstruction appeal, said Tuesday that “it was a hard-foughht case” before the Court of Appeals and congratulated his courtroom opponent, Assistant Maryland Attorney General Brenda Gruss.

“She did a good job,” said Tetrault, of Baltimore. “The court has spoken.”

The Maryland attorney general’s office declined to comment on the high court’s decision.

According to court filings, Bannister informed police in 2014 that Wilson told her about three years earlier that he and Raymond Posey III shot and killed Anderson. Bannister also told officers that she had seen the men selling Anderson’s possessions after Anderson’s August 2011 disappearance. Anderson’s body was found near Purse State Park in Nanjemoy in January 2012.

Wilson and Posey were subsequently indicted for murder.

While being held in the Charles County Detention Center, Wilson called several people between December 2016 and February 2017 to discuss his plan to marry Bannister to prevent her from testifying against him, the court filings state.

On Feb. 9, 2017, Wilson married Bannister via a conference call among the jailed groom, the bride — who was on a break from work — and a pastor in New Jersey.

The state, after hearing of the nuptials, charged Wilson with obstruction of justice and witness tampering by corrupt means ahead of his upcoming murder case. A Charles County Circuit Court jury found Wilson guilty and he was sentenced to 20 years in prison, with all but three and a half years suspended.

The Court of Special Appeals overturned the conviction in July 2019, saying marriage cannot form the basis for witness tampering or obstruction of justice.

“We shall follow the out-of-state courts that have declined to create a judicial exception to the spousal privilege and hold that a spouse may invoke the privilege even in the context of a sham marriage,” Judge Donald E. Beachley wrote for the appellate court.

“Those states simply require a valid marriage in order to invoke the privilege – it is irrelevant for purposes of the privilege whether the marriage serves a fraudulent purpose,” Beachley added. “In short, a person cannot be guilty of ‘corrupt means’ witness tampering or obstruction of justice where the allegedly criminal act – marrying with the express purpose of invoking the spousal privilege – is recognized as a lawful and permissible means for the new spouse to avoid being compelled to testify.”

Beachley was joined in the opinion by Judges Stuart R. Berger and Dan Friedman.

The state then sought review by the high court.

The Court of Appeals rendered its decision in State of Maryland v. Darrayl John Wilson, No. 64, September Term 2019.

Posey pleaded no contest to robbery and conspiracy to commit robbery and was sentenced to 20 years in prison, according to online court records at Maryland Judiciary Case Search.