On the first day of the defendant’s jury trial, the defendant’s wife, Leah, testified that one day she and defendant got into an argument, and the defendant stabbed her multiple times in her back, arms, leg, stomach, face, and neck. Leah further testified that the defendant stopped stabbing her after he cut himself, and he requested to have sex. Leah told the defendant that she would have sex with him if he put the knife down. 

At some point, Leah gained control of the knife, and testified that the 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[.]” Slip op. at ¶ 3. The defendant took Leah’s phone into another room, and Leah ran out of the house and drove to a nearby store for help. During the first day of trial, when this testimony was presented, the defendant did not object to Leah’s testimony about the defendant’s statements.

On the second day of the 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 moved to strike her testimony from the previous day. The trial court denied the defendant’s motion to strike and compelled Leah to testify because she was under subpoena.

On appeal, the defendant argued that the trial court erred when it allowed privileged marital communications into evidence, specifically (1) requests to have sex; (2) confessions of suicidal thoughts; and (3) admissions by the defendant of guilt to crimes against his wife. The Court of Appeals rejected this argument, holding that the portions of testimony challenged by the defendant were not confidential communications. The Court cited G.S. 8-57(b)(2), which specifically provides that a spouse of a defendant “shall be both competent and compellable to testify” in a prosecution for assaulting or communicating a threat to the other spouse. Slip op. at ¶ 12. Because the defendant was on trial for attempted murder of a spouse and assault with a deadly weapon with intent to kill inflicting serious injury upon a spouse, there was no marital privilege available.

Additionally, the Court determined that the defendant’s statements to his wife while he was attacking her with a knife and while she was attempting to escape were not prompted by the affection, confidence, and loyalty of marital relations and were thus not confidential communications.

In this rape case, because the evidence was clear and positive and not conflicting with respect to penetration, the trial court did not err by failing to instruct on attempted rape. Here, among other things, a sexual assault nurse testified that the victim told her she was penetrated, the victim told the examining doctor at the hospital immediately after the attack that the defendant had penetrated her, the defendant’s semen was recovered from inside the victim’s vagina.