White v. State

¶1concurring specially.

¶2The majority holds that a husband adopts his wife’s statements as his own simply by gesturing for her to be quiet. Because this holding is neither logically nor factually supportable, I write separately in affirming the convictions.

¶3The majority’s holding that a husband’s request of his wife to “shut up” actually means, as a matter of law, that he agrees with his wife is a remarkable interpretation of such an exchange. The relevant question for determining the admissibility of an alleged adoptive admission is “does the silence or conduct of the party, naturally and according to human experience, amount, under the circumstances, to an admission of what is said in his presence?”23The defendant’s gesturing to his wife for her to stop talking to a neighbor about his brother does not naturally mean that he agrees with what she is saying. In fact, the usual human experience would consider such a gesture to mean that the husband disagrees with his wife’s comments.

¶4To the extent that Gordon v. State3 supports the vast expansion of the use of adoptive admissions in a criminal trial, contrary to Jarrett v. State,4it should be overruled.

¶5While these statements were erroneously admitted, the error was harmless in that the statements were not directly inculpatory and were cumulative of other evidence regarding the difficult relationship between the brothers.

¶6I am authorized to state that Justice Hunstein joins in this special concurrence.