This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Mike Perry Hawkins,


Filed February 10, 1997


Short, Judge

Ramsey County District Court

File No. K7963214

John M. Stuart, State Public Defender, Eric L. Newmark, Special Assistant

Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN

55414 (for appellant)

Hubert H. Humphrey, III., Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Susan E. Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, Ramsey County Government Center W., 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Short, Presiding Judge, Harten, Judge, and

Mansur, Judge.*


Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.


SHORT, Judge

A jury convicted Mike Perry Hawkins of first-degree arson in violation of Minn. Stat. § 609.561, subd. 1 (1996). On appeal, Hawkins argues the trial court committed reversible error by: (1) admitting an officer's testimony regarding Hawkins's invocation of his right to counsel; and (2) ruling the marital privilege does not apply to the charge of arson in this case. We affirm.


Evidentiary rulings rest within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990). The harmless error impact analysis applies to a trial court's admission of evidence in violation of the defendant's constitutional rights. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). This court reviews de novo questions of statutory interpretation. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).


Hawkins argues he was denied his rights to due process and a fair trial because the trial court erroneously admitted testimony concerning his invocation of his right to remain silent and right to counsel. See Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S. Ct. 1602, 1624 n.37 (1966) (concluding prosecutor may not use fact that accused stood mute or claimed his privilege in face of accusations); State v. Jobe, 486 N.W.2d 407, 415 (Minn. 1992) (same). However, the record demonstrates: (1) that reference constitutes one line out of a 400-page trial transcript; (2) Hawkins's trial counsel did not ask that the reference be stricken or for a curative instruction; (3) the prosecutor did not ask specifically about Hawkins's invocation of his right to counsel or ask further questions highlighting the questioned testimony; (4) overwhelming evidence of Hawkins's guilt, including his presence at the scene of the fire, his previous threat to set his wife's house on fire, and the fact that the house was strewn with women's clothes and some of Hawkins's possessions were moved from the house to the garage; and (5) significant conflicts in Hawkins's hypothesis concerning the origins of the fire. After a careful review of the record, we conclude the verdict was unattributable to the reference to Hawkins's invocation of his right to counsel. See State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993) (concluding courts must examine error and its impact within context of record as whole, considering strength of state's evidence and weakness of any defense evidence when determining if error is harmful); see, e.g., Jobe, 486 N.W.2d at 416 (concluding even if appellant's refusal to answer question could be construed as assertion of right to remain silent, admission of that assertion would be harmless in light of overwhelming evidence against appellant); State v. Clark, 296 N.W.2d 359, 366 (Minn. 1980) (concluding although it was prejudicial error to testify that defendant exercised his right to remain silent, such error was harmless). Under these circumstances, we conclude any error was harmless beyond a reasonable doubt. See State v. Juarez, ___ N.W.2d ____, ____, 1997 WL 775605, at *6 (Minn. Dec. 18, 1997) (holding if verdict actually rendered surely unattributable to error, error is harmless beyond reasonable doubt); see also State v. Forcier, 420 N.W.2d 884, 886-87 (Minn. 1988) (concluding error in admitting statement does not necessitate new trial if error is harmless).


The marital privilege cannot be asserted in a criminal action for a crime committed by one spouse against the other spouse. Minn. Stat. § 595.02, subd. 1(a) (1996); see State v. Johnson, 463 N.W.2d 527, 534 (Minn. 1990) (concluding Minnesota construes scope of marital privilege narrowly to safeguard truth-finding); State v. Hannuksela, 452 N.W.2d 668, 676 (Minn. 1990) (same).

Hawkins argues the trial court committed reversible error by permitting his wife to testify over his objection. We disagree. It is undisputed: (1) Hawkins's wife owned their house; (2) the parties' relationship deteriorated prior to the fire; (3) Hawkins threatened to burn the house down; and (4) the day before the fire, Hawkins's wife left him. Given these facts, Hawkins's actions constituted an offense against his wife, and the marital privilege is inapplicable. See State v. Feste, 205 Minn. 73, 74-76, 285 N.W. 85, 86-87 (1939) (concluding marital privilege, which exists to prevent strife between marital parties, is not available for crimes against spouses because no cordial relations to protect); see, e.g., Peters v. District Court, 183 N.W.2d 209, 210-12 (Ia. 1971) (concluding wife's testimony not barred by marital privilege statute when husband set fire to house jointly owned by couple, after domestic quarrel); People v. Butler, 424 N.W.2d 264, 267-68 (Mich. 1988) (concluding wife's testimony not barred by martial privilege statute when husband charged with arson for setting fire to wife's apartment complex); Hudson v. Commonwealth, 292 S.E.2d 317, 319 (Va. 1982) (concluding marital privilege not available in cases of personal and property offenses by one spouse against other); cf. Creech v. Commonwealth, 410 S.E.2d 650, 651 (Va. 1991) (holding marital privilege prevented wife from testifying against husband who was indicted and tried solely for arson of his house) (emphasis added).

Even if the trial court erred in denying Hawkins's request to invoke the marital privilege, the error was harmless. The record shows: (1) expert testimony concerning the fire's source and cause; (2) several witnesses testified to Hawkins's emotional and physical state before and after the fire; (3) Hawkins admitted he was "pissed off" at his wife; and (4) Hawkins was the only person at the house when the fire started. See State v. Leecy, 294 N.W.2d 280, 283 (Minn. 1980) (concluding while trial court erroneously sustained claim of marital privilege, error was not prejudicial because evidence came in through two other witnesses). Under these circumstances, Hawkins's conviction is supported by overwhelming evidence.