Husband's tears weren't protected by spousal privilege, appellate court rules

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A husband’s tears during a private drive with his wife could be used as evidence to help convict him in a rape case, a North Carolina appeals court ruled Tuesday. It rejected a defense lawyer’s argument that the man’s crying was essentially an admission by silence and hence a privileged form of spousal communication.

Although the wife of Lesiba Simon Matsoake did not go to authorities until years later, she said her suspicion of him was awakened not long after the 2003 crime when the two were driving together from their home in North Carolina to a Virginia doctor’s appointment. The wife, Ruth Hart, was at the wheel and noticed Matsoake crying as he read a newspaper that included a composite sketch of the claimed assailant, explains the North Carolina Court of Appeals in its Tuesday written opinion (PDF).

Eventually, Hart blew the whistle, a DNA match linked Matsoake to the crime, and he was extradited from his native South Africa (where he had fled after learning he was a suspect), tried and convicted by a jury in 2014. Meanwhile, the couple had divorced.

Appealing his conviction, counsel for Matsoake argued that Hart should not have been allowed to testify in the jury trial about the crying incident, because it was a privileged marital communication. The privilege can cover conduct as well as words. However, the appeals court said it did not apply in Matsoake’s case because no marital communication took place.

“The incident occurred as Hart drove to a doctor’s appointment with defendant sitting in the passenger seat. Hart did not observe defendant looking at the composite sketch of the victim’s assailant and weeping until Hart heard a teardrop hit the newspaper,” the court writes. “No testimony indicates defendant intended to communicate anything to Hart by crying at the sight of the composite sketch.”

Matsoake was sentenced last year to a 20- to 25-year prison term in the Dare County case, as the Outer Banks Voice reported at the time. He is also a suspect in other sex crimes in North Carolina and Virginia.

He was held without bond while his appeal was pending.

Hat tip: Associated Press.

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