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ATTORNEY FOR APPELLANT Kimberly A. DeVane Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Joby Jerrells Deputy Attorney General Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 49S02-0502-CR-56 JOHN GLOVER, Appellant (Plaintiff below), v. STATE OF INDIANA, Appellee (Defendant below). _________________________________ Appeal from the Marion Superior Court, No. 49G04-0210-MR-246224 The Honorable Steven Rubick, Commissioner Presiding _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0401-CR-4 _________________________________ November 2, 2005 Boehm, Justice. In the course of Glover's trial for murder, the State called his wife to testify against him. In this interlocutory appeal, Glover challenges the denial of his motion to suppress her testimony. We hold that a court cannot require the wife to testify as to confidential communications between her and Glover, but the marital privilege does not bar her voluntary testimony.

Factual and Procedural Background In November 1999 Kamaljeet Dhaliwal, a native of India, moved to the United States and married Andrew Abdul, a United States citizen. Dhaliwal and Abdul were divorced in December 2001. As a result of the divorce, Dhaliwal became an illegal immigrant and was to be deported within six months. At the time of her divorce Dhaliwal and John Glover worked together at a hospital. She described Glover as a "good friend" who "used to treat me as his daughter there." When she explained to Glover that she was about to be deported, he offered to help her by "getting married on papers." Dhaliwal and Glover were married on February 28, 2002 in Louisville, Kentucky, and Dhaliwal became known as Bobbie Glover. Dhaliwal testified that Glover never stayed at her home for more than an hour and that she lived in the Wildwood Village Apartments with roommates, while Glover resided with a girlfriend at another apartment in the same complex. On September 17, 2002, Tammy Gibbs, another resident of Wildwood Village, was found strangled in her apartment. A neighbor told police that she had seen Gibbs at around 8:15 that morning standing in front of Gibbs's apartment building beside a red truck driven by Glover. In police interviews Glover initially denied having been at Wildwood Village the day of Gibbs's murder, but after he was asked to take a polygraph test, he admitted that he had gone to the apartment complex that day. He claimed he was there to see Bobbie Glover (Dhaliwal) and that he had not seen Gibbs. Two weeks after Gibbs's death, Dhaliwal called Detective Jesse Beavers and arranged to meet with him at police headquarters. She arrived with her priest and told Beavers that on the day of the murder Glover had arrived at her apartment between 10:15 and 10:45 in the morning. She reported that Glover had told her that he had killed Gibbs and had demonstrated how he had put his hands around Gibbs's neck. The State charged Glover with Gibbs's murder and listed Dhaliwal as a witness. Glover moved to suppress Dhaliwal's testimony pursuant to the marital privilege codified at Indiana Code section 34-46-3-1(4) (2004). After a hearing, the trial court denied the motion on the ground that Glover's marriage to Dhaliwal was a sham designed only to save Dhaliwal from deportation. The trial court reasoned that if the purpose of a marriage is only to defraud, it is in-

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consistent with the legal protections afforded married couples and the privilege is lost. The trial court certified its ruling for interlocutory appeal. On appeal, the Court of Appeals reversed, reasoning that there is no "fraudulent" marriage exception to the privilege, and therefore Dhaliwal could not testify at Glover's trial to these confidential communications. Glover v. State, 816 N.E.2d 1197, 1201 (Ind. Ct. App. 2004). This Court granted transfer. Glover v. State, 831 N.E.2d 737 (Ind. 2005). I. Who Qualifies as a Spouse At common law two rules restricted spousal testimony. First, a "testimonial" privilege allowed either spouse to prevent the other from testifying against him or her. 8 Wigmore, Evidence

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