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State v. Bondurant3/20/1998
indings. At the suppression hearing, the defendant did not claim any possessory interest in the property (skull fragments) seized, and there was no proof that he had a possessory interest in the place searched or a right to exclude others from the property. The appellant did not exhibit a subjective expectation that the place would remain free from governmental invasion. In fact, he indicated to Denise, after finding a human bone while cleaning up his parents' yard, that he believed the police had already searched the property and had failed to notice the bone. Nor did the defendant take precautions to maintain the privacy of the area where the skull fragments were found.
Accordingly, the defendant has failed to show that he had a legitimate expectation of privacy in his parents' property.
In State v. Roberge, 642 S.W.2d 716, our supreme court held: It is fundamental that one challenging the reasonableness of a search or seizure has the burden of establishing a legitimate expectation of privacy in the place or property which is searched. One does not have automatic standing to challenge a search simply because he is convicted of a possessory offense. Further, one accused of a criminal offense may testify at a suppression hearing without incurring the risk that his testimony will be used against him by the prosecution as part of its case in chief. Therefore, in our opinion, it was incumbent upon [the defendant] to establish in some way that he had some claim to or interest in the [item seized]....
Id. at 718 (citations omitted).
The proof at the suppression hearing indicated that the defendant was, at best, an occasional guest at his parents' house in Westpoint. Neither the defendant's voter registration nor his vehicle registrations listed the Westpoint address. Moreover, the defendant testified at his bond hearing that he had lived in Giles County since 1973, except for several months when he lived in Lawrenceburg. While the defendant may have stayed at his parents' house from time to time, there was no proof at the hearing that he had any right to exclude others from the property or that he had a key. We hold that the defendant lacks the capacity to claim Fourth Amendment protection as to the evidence seized.
IV. MARITAL PRIVILEGE
In another issue, the defendant contends that the marital privilege, as it existed in common law at the time of trial, should have prevented Denise from testifying to events related to her by the defendant about the killing and disposal of the victim. The defendant submits that the case law relied upon by the trial court, Adams v. State, 563 S.W.2d 804 (Tenn. Crim. App. 1978), was an aberrant decision that departed from the supreme court's decision in McCormick v. State, 135 Tenn. 218, 186 S.W. 95 (1916). The defendant acknowledges that our supreme court changed the common law in State v. Hurley, 876 S.W.2d 57 (Tenn. 1993), cert. denied, 513 U.S. 933, 115 S. Ct. 328 (1994); however, this case law was not in effect at the time of the murder or of the trial. Subsequently, the legislature codified the law in McCormick, and the defendant further argues that the new statute should be applied retroactively.
A hearing was held on the defendant's motion in limine to exclude Denise's testimony at trial. At the hearing, Denise testified that she was married to the defendant at the time he made inculpatory statements to her. She had been separated from the defendant since August 1986, after a fight in which the defendant beat Denise, who was pregnant at the time, and held a gun to her head. Subsequently, she then moved in with her sister for two months but moved back to Pulaski in October 1986 and rented an ap
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