State v. McKinnish

EAGLES, Judge. I Defendant first argues that the trial court erred by “allowing [Ms. Stanley] to testify to the contents of letters she received from defendant, and in admitting those letters into evidence.” Defendant argues the letters are privileged confidential marital communications. We disagree. In State v. Freeman, 302 N.C. 591, 598, 276 S.E.2d 450, 454 (1981) our Supreme Court held that in order for a communication to be a confidential communication it must be “induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship.” . Defendant contends that the letters were “made in reliance on the sanctity of the marital relationship^ and that it] is apparent from the language of the letters that defendant was relying on what he thought would be Ms. [Stanley’s] spousal loyalty.” The State contends, however, that the letters were not confidential communications because they contained threats and attempted to get Ms. Stanley to misrepresent the time of her departure on the trip to West Virginia. We agree with the State. In Freeman v. St. Paul Fire and Marine Ins. Co., 72 N.C. App. 292, 324 S.E.2d 307, disc. review denied, 313 N.C. 599, 330 S.E.2d 609 (1985), our Court held that a threat communicated by one spouse to another is not a privileged confidential communication. Here, exhibit 28 contains the following statements: Any way your in ... as I am so we can walk away from this or spend time in prison its up to you mary, Because if I spend time, you will too. We was together when all of this happened mary so stick By the story ok. So make sure you say that we left at 10:30 or 11:00 Sunday morning. [247] Clearly, these statements constitute unprivileged threats. Accordingly, it was permissible for the court to allow the State to cross-examine Ms. Stanley concerning exhibit 28 and admit it into evidence. Moreover, both letters show on their face that they were not “induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship.” Freeman, 302 N.C. at 598, 276 S.E.2d at 454. In both letters defendant instructed Ms. Stanley to say that she left at 10:30 or 11:00 a.m. on the day in question and offered her material reward in return for her help. Exhibit 28 contains the following statements: Mary, ill do anything in this world for you if you will help me. I talked to mom yesterday, we will pay off the bronco and everything else if you will help me. So make sure you say that we left at 10:30 or 11:00 Sunday morning. Exhibit 26 contains the following statements: Well I am fixing to go to prison for the rest of my life if you dont get down here and tell my lawyer that we did leave at 10:30 or 11:00 am that Sunday morning and I only left your sight for five minutes and that was to sweep out the Bronco because we thought that we lost it that monday morning when we took it back at McArms. ok. Mom said she will pay for your gas to and from W. Virginia ok. She wants you to call her Mary so please do so, My life is on the line here and ill do anything in this world to pay back you and [illegible] for it ok. You can call collect she said. By the way mary if you come down you can pick up those Reebocks you said you want back ok. there over moms. Both letters reflect that defendant was unable to rely on the affection, confidence and loyalty engendered by his marital relationship. Rather, the defendant relied on his offering of material reward in order to attempt to persuade Ms. Stanley to testify in his favor. Accordingly, we agree that the exhibits are not privileged and are admissible on this basis as well. [248] II Defendant next argues that the trial court erred by failing to declare Ms. Stanley an adverse witness. “The decision whether to declare a witness hostile or adverse rests within the trial court’s sound discretion and will not be reversed absent a showing of abuse.” State v. Duvall, 50 N.C. App. 684, 699, 275 S.E.2d 842, 854, rev’d on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981). Here, we find no abuse of discretion. Defendant argues that Ms. Stanley was an adverse witness because she had separated from the defendant and “sabotaged the defendant’s alibi defense” by changing her story as to when she and the defendant left for West Virginia. Ms. Stanley did testify that she began the process of having her marriage annulled in December of 1990. However, it does not appear that Ms. Stanley “sabotaged” the defendant’s alibi defense. The victim, Ms. Paige, testified that she returned to her apartment between 1:30 and 1:45 p.m. on the day in question. She changed her son’s clothes, put him down for a nap, changed her own clothes, fixed herself a bowl of ice cream and sat down on the couch. Ms. Paige had been home for approximately fifteen minutes when she fixed the ice cream. About 2:15 p.m. Ms. Paige received a phone call from her sister. She talked to her for a short while and then sat back down on the couch. About five minutes later the defendant knocked on her door. She testified on direct examination that the defendant knocked on her door at approximately 2:25 or 2:30 p.m. On cross-examination, Ms. Paige admitted telling Det. Matthews that the defendant knocked on her door at 2:40 p.m. The attack lasted approximately fifteen minutes. Ms. Stanley testified on direct examination that although she was not certain what time she and the defendant left for West Virginia she would “say it was before two-thirty. . . .” At that point a voir dire was conducted. During her voir dire testimony Ms. Stanley admitted that she told defense counsel on numerous occasions that she and the defendant left for West Virginia around 1:00 p.m. She testified, “It was something around through there. I’m not for sure about the time, though.” Ms. Stanley also admitted that she told defense counsel that she “believed it was about twelve or after twelve[]” when they left. Upon resumption of direct ex249 animation, Ms. Stanley testified that she and the defendant left “before two-thirty.” We first note that contrary to defendant’s assertion, Ms. Stanley’s testimony on direct examination is not necessarily in conflict with what she told defense counsel prior to trial. Ms. Stanley twice testified that she and the defendant left for West Virginia “before two-thirty”. She did not testify that they did not leave prior to that time. Rather, her testimony is merely that she. left “before two-thirty.” Second, we note that Ms. Stanley’s testimony is not necessarily in conflict with her statement to Det. Matthews. Her statement does not indicate exactly what time they left for West Virginia. Ms. Stanley told Det. Matthews that she took a shower a little before 2:00 p.m., and that she stayed in the bathroom about twenty-five minutes. The couple arrived in West Virginia at about 6:00 or 6:30 p.m. Moreover, even assuming arguendo, that Ms. Stanley’s testimony did conflict, when her testimony is read together with Ms. Paige’s testimony it is clear that the defendant’s alibi defense was not “sabotaged.” Ms. Paige testified that her attacker knocked on her door between 2:25 and 2:40 p.m., and that he remained in her home for approximately 15 minutes. Ms. Stanley testified that she and the defendant left for West Virginia before 2:30 p.m. Accordingly, Ms. Stanley’s testimony in fact tends to support an alibi defense. That defense was rejected by the jury when it found the defendant guilty of the crimes charged. We hold that based on the record before us, the trial court has not abused its discretion by failing to declare Ms. Stanley an adverse witness. Ill Defendant has abandoned his remaining assignments by failure to bring them forward in his brief. N.C.R. App. Pro. 28(b)(5). No error. Judges MARTIN and JOHN concur.