The Times West Virginian

December 6, 2013

Marital communication murder case issue

Michael Palmer set to go to trial in seven weeks

By Debra Minor Wilson
Times West Virginian

FAIRMONT — Two years ago on Dec. 11, Everett Ed Wilson was shot to death at the Baxter home of his daughter and son-in-law, Kristyn and Michael Palmer.

They have been incarcerated at the North Central Regional Jail since their arrest and indictment on first-degree murder charges in June 2012.

In seven weeks, Michael Palmer is set to go to trial, his sixth trial date.

Defense attorneys Sean Murphy and Rebecca Tate, and prosecutors Patrick Wilson and Leann Hawkins appeared before Marion Circuit Judge Michael Aloi Thursday in what could be Palmer’s final pretrial motion hearing.

The hearing focused on the applicability of marital communication privileges: whether Kristyn Palmer would be allowed to testify against her husband at his January trial.

For that to happen, she would need to have made a deal with the prosecution to avoid self-incrimination, defense said.

“If there is no deal in place, she will be in jeopardy,” Murphy said. “There has to be an agreement. Why would she incriminate herself? If it’s not been fleshed, it needs to be.”

Hawkins said that has not happened.

“As we sit here today, there is no agreement,” she told Aloi.

Transport orders had been filed at the Marion County Circuit Court to bring Kristyn Palmer to the courthouse from the regional jail on Oct. 21, 24 and 26, although there were no public hearings on record.

There are two forms of marital communication privilege.

One is communication privilege, in which communication between spouses during the marriage are privileged. This applies both to words and actions intended to be a private communication, and is applicable to communication made before, during and even after the marriage.

The second is spousal testimonial privilege, in which one spouse may refuse to testify against his/her defendant spouse. This privilege lasts only as long as the marriage does. A divorced spouse may testify about any events that occurred before, during and after the marriage without disrupting the spousal testimony privilege.

Murphy wants it to be made clear before the trial begins whether Kristyn Palmer will testify against her husband and if she does, what she will say.

He also wants Aloi to rule on what testimony would be admissible and would not. For that to happen, Aloi said, he would have to know what that testimony is, possibly in an in camera, or private, hearing.

A transport order had been filed in circuit court for her to be brought from the regional jail to the courthouse for Thursday’s hearings. But she did not appear. Her defense attorney, Fran Whiteman, sat in the gallery during the hearings but didn’t address the court.

There are some exceptions to marital communication privilege, such as communication between co-conspirators.

“But the state has to prove there was a conspiracy,” Murphy said.

Hawkins said that the fact that the two were indicted on the same crime indicates the grand jury believed there was a conspiracy.

“The defendant is not permitted to employ his spouse to commit a crime and then claim privilege of confidential communications to prevent the truth from coming out,” she said.

Murphy said the state has written and audio statements from Kristyn Palmer about the incident in which she says there was “no plot, no plan, no scheme” between her and her husband to murder her father.

Communication can be verbal or conduct, Hawkins said.

Aloi agreed that “there are a lot of nuances” to the marital communication issue.

Hawkins said the defense has received copies of Kristyn Palmer’s statements and knows what she intends to testify.

“They need to identify specifically what they think might be inadmissible. She has the right to invoke her Fifth Amendment right (to self-incrimination).”

“Being charged as a co-conspirator doesn’t mean anybody can say anything about you,” Murphy said. “The state has to prove there was a conspiracy. There is not one iota of proof.”

Originally, the shooting had been described as a domestic incident in which Wilson attempted to enter the Palmers’ residence, damaging the front door, with Michael Palmer shooting him once in the torso. Wilson was pronounced dead on the scene by the state medical examiner.

Aloi will also rule on defense motions to grant Michael Palmer bond on his own recognizance, to dismiss Prosecuting Attorney Patrick Wilson and on the admissibility of hearsay statements of the late Everett Wilson.

Email Debra Minor Wilson at dwilson@timeswv.com.