State v. Harris

• Court: Court of Appeals of North Carolina
• Decided: March 2, 2021
• Docket: 19-617
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-44

No. COA19-617

Filed 2 March 2021

Pitt County, No. 16CRS055654

STATE OF NORTH CAROLINA

v.

CHARLIE JAMES HARRIS, III, Defendant.

Appeal by defendant from judgment entered 1 March 2018 by Judge Marvin

K. Blount III in Superior Court, Pitt County. Heard in the Court of Appeals 14 April

2020.

Attorney General Joshua H. Stein, by Special Counsel to the Chief Deputy Attorney General, Shannon J. Cassell, for the State.

Jarvis John Edgerton, IV, for defendant-appellant.

STROUD, Chief Judge.

¶1 Defendant appeals judgments convicting him of first degree attempted murder

and assault with a deadly weapon with intent to kill inflicting serious injury. Under

North Carolina General Statute § 8-57, defendant’s wife was “both competent and

compellable to” testify against defendant as this is “a prosecution for assaulting or

communicating a threat to the other spouse[.]” Defendant’s wife’s testimony

regarding his statements to her while he was attacking her with a knife and while STATE V. HARRIS

Opinion of the Court

she was attempting to escape were not “prompted by the affection, confidence, and

loyalty engendered by such relationship,” so these statements were not “confidential

communication[s.]” The trial court did not err in compelling wife to testify as to the

statements’ defendant made and in not striking her testimony. N.C. Gen. Stat. § 8-

57 (2015); State v. Rollins, 363 N.C. 232, 237, 675 S.E.2d 334, 337 (2009) (citations

and quotation marks omitted). We conclude there was no error.

I. Background

¶2 On the first day of defendant’s jury trial, defendant’s wife, Leah,1

testified that on 30 July 2016, she and defendant got into an argument, and when she

began walking upstairs defendant stabbed her multiple times in her back, arms, leg,

stomach, face, and neck. Leah further testified that defendant stopped stabbing her

after he cut himself, and he began taking off her pants; when she asked what he was

doing he responded, “I want to have sex, this could be my last time having sex.” Leah

testified she told defendant she would have sex with him if he put the knife down,

but she did not want to have sex, rather she “just wanted to go to the hospital[,]” and

she only agreed so defendant would “put the knife down.”

¶3 Defendant had sex with Leah and requested her to do certain things, but she

was in pain and “really couldn’t move.” At some point, Leah gained control of the

1 A pseudonym is used. STATE V. HARRIS

knife, and she testified defendant told her “it’s over for him now and he knows the

police is coming and he just wanted me to let the knife go so he could kill hisself[.]”

Leah begged for water, and defendant asked her “all of these questions,” and then

took her phone into another room. Leah ran out of the house, still without her pants

and screaming, and drove to a Kangaroo store “around the corner” for help. Leah

required trauma surgery for her wounds from the stabbing, and she remained in the

hospital approximately a week. During the first day of trial, when all of this

testimony was presented, defendant did not object to Leah’s testimony about

defendant’s statements.

¶4 On the second day of defendant’s trial, Leah informed the trial court she did

not want “to testify against [her] husband.” Defense counsel argued Leah was

attempting to assert marital privilege, and he would “move to strike all of her

testimony from yesterday.” The State countered that marital privilege was not

applicable if the defendant was being prosecuted for a felony he had committed

against his wife. After much discussion and research, the trial court denied

defendant’s motion to strike and informed Leah

you have a duty in this case to testify and that based on the Court’s understanding of the statute, that you can be compelled to testify in this case and you have been subpoenaed in this case by the State to testify and that you have a duty and an obligation to answer all questions proposed of you or proposed to you in a truthful manner. STATE V. HARRIS

And if you refuse to answer those questions, ma’am, you may be held and will be held in contempt of court[.2]

¶5 The jury found defendant guilty of attempted first degree murder and assault

with a deadly weapon with intent to kill inflicting serious injury. The trial court

entered judgments. Defendant appeals.

II. Confidential Marital Communications

¶6 Defendant’s only argument on appeal is that “the trial court committed

reversible error under N.C. Gen. Stat. § 8-57(c) when it allowed into evidence

privileged marital communications that the State compelled defendant’s spouse to

reveal pursuant to a subpoena.” (Original in all caps.) Whether a statement is “a

privileged confidential communication” as defined by North Carolina General Statute

§ 8-57 “is a question of law” which this Court reviews de novo. State v. Matsoake, 243

N.C. App. 651, 656, 777 S.E.2d 810, 813 (2015). Further, “[a]lleged statutory errors

are questions of law and, as such, are reviewed de novo. Under de novo review, the

appellate court considers the matter anew and freely substitutes its own judgment

for that of the lower court.” State v. Hughes, 265 N.C. App. 80, 81–82, 827 S.E.2d

2 Leah countered that she was not certain she was competent because she had “depression

and posttraumatic stress disorder.” Counsel was appointed to represent Leah, and her counsel did not deem her to have any issues with competency as a witness. Leah’s competency as a witness is not at issue on appeal. STATE V. HARRIS

318, 320 (citation omitted), stay dissolved, writ of supersedeas denied, and disc. review

denied, ___ N.C. ___, 830 S.E.2d 827 (2019).

¶7 Defendant’s argument focuses on limited portions of Leah’s testimony he

contends are “privileged and confidential marital communications[.] . . . Specifically,

these communications were: (1) requests to have sex . . .; (2) confessions of suicidal

thoughts . . .; and (3) admissions by defendant of guilt to crimes against his wife[.]”

Defendant does not challenge her testimony describing defendant’s actions, including

stabbing her repeatedly.

¶8 North Carolina General Statute § 8-57 provides,

(b) The spouse of the defendant shall be competent but not compellable to testify for the State against the defendant in any criminal action or grand jury proceedings, except that the spouse of the defendant shall be both competent and compellable to so testify: .... (2) In a prosecution for assaulting or communicating a threat to the other spouse; .... (c) No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.

N.C. Gen. Stat. § 8-57.

To assess whether the conversations between defendant and his wife were in fact protected by subsection 8–57(c), our analysis turns on whether there was a confidential communication between defendant and his STATE V. HARRIS

wife in the DOC facilities. When defining a confidential communication in the context of the marital communications privilege, this Court has asked whether the communication was induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship.

Rollins, 363 N.C. at 237, 675 S.E.2d at 337 (emphasis added) (citation, quotation

marks and ellipses omitted).

¶9 The State contends that defendant failed to object to the statements at issue

on appeal, and thus the issue is not preserved. Defendant contends his argument

under North Carolina General Statute § 8-57 is preserved for appellate review even

without a contemporaneous objection to the testimony. Defendant also made a

motion to strike Leah’s testimony, and the trial court heard extensive argument on

the issues and ruled on the motion. But even if we assume arguendo that defendant’s

motion to strike Leah’s testimony properly preserved his argument for appeal, the

portions of testimony he challenges here were not confidential communications.

¶ 10 The State also contends that North Carolina General Statute § 8-57 is not

applicable because Leah’s testimony of defendant’s statements were not “confidential

communication” under the statute. Defendant counters in his reply brief he “has only

challenged confidential communications pursuant to N. C. Gen. Stat.§ 8-57(c),” and

thus “the State’s attempt to rely on an exception to the N.C. Gen. Stat. § 8-57(b) rule

is misplaced.” (emphasis added). In defendant’s reply brief he relies on Biggs v. Biggs, STATE V. HARRIS

253 N.C. 10, 16, 116 S.E.2d 178, 183 (1960), wherein the Supreme Court stated, “It

is true that an act of intercourse between husband and wife is a confidential

communication[;]” but defendant takes this sentence entirely out of context to create

his argument.

¶ 11 The issue in Biggs was: “Where, in an action by a husband for divorce on the

ground of adultery, the wife pleads condonation and testifies that the husband had

intercourse after agreeing to forgive her and that she is pregnant as a result of the

intercourse, is it error to permit the husband to deny the intercourse?” Id. at 14, 116

S.E.2d at 181. Based upon Biggs, a civil case under North Carolina General Statute

§ 8-56 as it was written in 1960, see id., 253 N.C. 10, 116 S.E.2d 178, defendant

contends that “our North Carolina Supreme Court has recognized that

communications about marital sex between spouses are confidential communications

and N.C. Gen. Stat. § 8-57([c]) states, without exception, that no spouse ‘shall be

compellable in any event to disclose any confidential communication made by one to

the other during their marriage.’” Defendant argues any statement related to sexual

intercourse between spouses is a “confidential communication” which the trial court

cannot compel “in any event[.]”

¶ 12 We first note that only one of the statements challenged by defendant was

about sex; the other statements were regarding suicidal thoughts and admission of

guilt to his crimes. Further, defendant’s Biggs argument, applicable only to the STATE V. HARRIS

statement regarding sex, entirely ignores North Carolina General Statute § 8-57

(b)(2) which specifically provides that a spouse of a defendant “shall be both

competent and compellable to testify” “[i]n a prosecution for assaulting or

communicating a threat to the other spouse[.]” N.C. Gen. Stat. § 8-57(b)(2). A

prosecution for attempted murder of a spouse and assault with a deadly weapon with

intent to kill inflicting serious injury upon a spouse is “a prosecution for assaulting”

the other spouse. Id.

¶ 13 Beyond the statements regarding sex, defendant also cites to criminal cases

decided under North Carolina General Statute § 8-57 in support of his argument, but

these cases are inapposite as the other spouse is not the victim in those cases, the

very issue at the heart of North Carolina General Statute § 8-57(b)(2). See, e.g.,

Rollins, 363 N.C. 232, 675 S.E.2d 334 (determining that spousal privilege under

North Carolina General Statute § 8-57 “does not extend to communications occurring

in the public visiting areas of the North Carolina Department of Correction (DOC)

facilities because a reasonable expectation of privacy does not exist in such areas”);

State v. Holmes, 101 N.C. App. 229 398 S.E.2d 873 (1990), aff’d, 330 N.C. 826, 412

S.E.2d 660 (1992) (determining spousal privilege under North Carolina General

Statute § 8-57 did apply when the defendant-husband told his wife he planned to kill

someone else).

¶ 14 Ultimately, STATE V. HARRIS

[w]hile recognizing that the cases and statutes pertinent to this issue have not been models of clarity, our Supreme Court has interpreted section 8–57 to mean that a spouse[] shall be incompetent to testify against one another in a criminal proceeding only if the substance of the testimony concerns a confidential communication between the marriage partners made during the duration of their marriage[.] This interpretation: allows marriage partners to speak freely to each other in confidence without fear of being thereafter confronted with the confession in litigation. However, by confining the spousal disqualification to testimony involving confidential communications with the marriage, we prohibit the accused spouse from employing the common law rule solely to inhibit the administration of justice. To fall within the purview of this privilege, the communication must have been made confidentially between wife and husband during the marriage. Accordingly, the determination of whether a communication is confidential within the meaning of the statute depends on whether the communication was induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship. With these rules in mind, we now turn to the facts of the case at bar.

State v. Hammonds, 141 N.C. App. 152, 169–70, 541 S.E.2d 166, 179 (2000) (citations

and quotation marks omitted), aff’d per curiam, 354 N.C. 353, 554 S.E.2d 645 (2001).

¶ 15 As applied here, defendant’s statements demanding sex from his wife after

having repeatedly stabbed her and while still wielding a knife were not “prompted by

the affection, confidence, and loyalty engendered by such relationship.” N.C. Gen. STATE V. HARRIS

Stat. § 8-57(c) (emphasis added). Further, defendant’s statements of suicidal

thoughts and concern about arrest for the crime defendant was in the process of

committing against his wife cannot be said to spring from “affection, confidence, and

loyalty” borne out of marital relations. Id. Defendant was not confessing to his wife

about a prior crime against someone else or confiding in her about his plans of a

future crime but instead speaking about the violent act he was currently committing

– assaulting Leah while still wielding a weapon as she begged for water, attempted

to escape from defendant, and desperately needed medical attention due to wounds

inflicted by defendant – and his concerns about the possible repercussions. Although

North Carolina General Statute § 8-57(c) could theoretically apply to a defendant’s

statements made during the commission of a crime, in this situation, defendant’s lack

of “affection, confidence, and loyalty” in making these statements could not be clearer.

Id.

¶ 16 Defendant has also failed to demonstrate prejudice from the admission of these

portions of Leah’s testimony. Even if we agreed with defendant that his statements

were somehow prompted by “affection, confidence, and loyalty” based on the marital

relationship, exclusion of these limited portions of Leah’s testimony would not affect

the outcome of the case. Leah’s testimony regarding what defendant did to her and

the evidence of her injuries was far more important than what defendant said while

he was stabbing or assaulting her. Id.; see generally State v. Godley, 140 N.C. App. STATE V. HARRIS

15, 26, 535 S.E.2d 566, 574–75 (2000) (“The erroneous admission of evidence requires

a new trial only when the error is prejudicial. To show prejudicial error, a defendant

has the burden of showing that there was a reasonable possibility that a different

result would have been reached at trial if such error had not occurred.” (citations and

quotation marks omitted)). This argument is overruled.

III. Conclusion

¶ 17 For the foregoing reasons, we conclude there was no error.

NO ERROR.

Judges ARROWOOD and HAMPSON concur.