State v. SuitsAnnotate this Case
251 S.E.2d 607 (1979)
296 N.C. 553
STATE of North Carolina v. Franklin Monroe SUITS.
Supreme Court of North Carolina.
February 5, 1979.
*609 Asst. Public Defender Anne B. Lupton, Winston-Salem, for the defendant.
Atty. Gen. Rufus L. Edmisten by Associate Atty. Leigh Emerson Koman, Raleigh, for the State.
In his first assignment of error, the defendant claims the State violated G.S. 8-57. We agree; therefore, the defendant must be granted a new trial.
Over defendant's repeated objections, the State introduced State's Exhibit Number 3, a knife taken from the defendant's residence, into evidence at trial. The admission of the knife was based on the following testimony by an officer of the Greensboro Police Department:"Q. Detective Travis, subsequent to the arrest of the defendant in this case, Franklin Monroe Suits, did you have occasion to go to his residence? A. Yes, sir, I did. Q. When did you go? A. I went to 2804 Emerson Road, which is the residence of Mr. Suits, on the eighth month, 19th day, 1977, sometime in the afternoon. Q. And when you went to the residence, who, if anyone, did you see? A. Mrs. Suits, Frankie Suits' wife, came to the door and Q. Tell the Judge and the members of the jury what happened? A. Mrs. Suits and myself had some conversation. I asked her if Frankie had a knife. Q. What did Mrs. Suits do? A. We were in the front room. She went out of the front room to another part of the house, was gone just a short time and came back and a small pocket knife was given to me. Q. Detective Travis, I hand you what has been previously marked State's Exhibit No. 3. Can you identify that, sir? A. This is the pocket knife that was given to me at 2804 Emerson Road on the 19th by Mrs. Suits."
At common law, a husband or a wife was incompetent to testify either for or against his or her defendant-spouse in a criminal action. North Carolina Gen.Stat. 8-57 changed this rule to the effect that a husband or a wife can testify for a defendant-spouse. State v. Alford, 274 N.C. 125, 161 S.E.2d 575 (1968). The common law rule remains in effect, however, regarding testimony against a spouse in a criminal action. Subject to certain exceptions not relevant to this case, "[n]othing herein shall render any spouse competent or compellable to give evidence against the other spouse in any criminal action or proceeding." G.S. 8-57.
In discussing the rule, this Court has said that "[t]he prohibition extends to declarations made by one spouse not in the presence of the other. It is the duty of the presiding judge to exclude such evidence." State v. Dillahunt, 244 N.C. 524, 525, 94 S.E.2d 479, 480 (1956) (per curiam). It is unquestioned that this defendant was not present and he did not consent to his wife giving the policeman the knife.
The State and the trial judge in this case made an effort to exclude any oral statement made by defendant's wife; however, that is not the only type of evidence that must be excluded as a "declaration" of a spouse. "[A]n act, such as a gesture, can be a declaration within the meaning of this rule." State v. Fulcher, 294 N.C. 503, 517, 243 S.E.2d 338, 348 (1978).
In response to the officer's inquiry as to whether the defendant had a knife, the jury was informed that the defendant's wife left the room and returned with a pocket knife, identified as State's Exhibit Number 3. This conduct was equivalent to the wife stating, "Yes, the defendant has a knife, and here it is." "[I]t must be observed that the line of cleavage between conduct and statements is one that must be drawn in the light of substance, rather than *610 form." McCormick on Evidence § 250 (2d ed. 1972). Thus, the court committed prejudicial error in allowing the police officer to testify to the wife's actions in this case. The defendant must be granted a new trial.
At the close of the State's evidence, the defendant made a written motion in limine, requesting the court to restrict the State's cross-examination of the defendant in this manner:"1. Not to mention, refer to, interrogate concerning or attempt to convey to the jury in any way, directly or indirectly, the fact that the defendant was sentenced in cases in which he was not represented by counsel nor waived counsel, or in cases in which he plead (sic) nolo contendere. 2. Not to question the defendant regarding his criminal record or specific acts of alleged misconduct, further than to ask him what he has been tried and convicted of, without first obtaining specific permission from the court to ask further questions outside the presence and hearing of the jury."
After a hearing on the motion, the trial court denied defendant's motion, indicating that "it would not allow questions concerning previous convictions wherein the defendant did not have counsel or did not waive counsel but would allow the district attorney to make inquiry even in those cases wherein the defendant did not have counsel and had not waived counsel, on the basis of prior acts of misconduct." We feel the judge ruled correctly in this matter.
The undisputed rule in North Carolina is that when a defendant in a criminal action testifies on his own behalf, he may be impeached by being asked about prior acts of misconduct. See, e. g., State v. Black, 283 N.C. 344, 196 S.E.2d 225 (1973). After carefully reviewing the record on this point, we note that in no instance did the State couch its questions regarding prior bad acts in terms of arrests, indictments, convictions or sentences. See State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971). This argument is without merit.
The defendant brings forth numerous assignments of error to this Court relating to the kidnapping convictions. These contentions have been answered in State v. Williams, 295 N.C. 655, 249 S.E.2d 709 (1978), a recent opinion by this Court. We assume defendant's new trial will be conducted in accordance with that decision. We do not address the defendant's other assignments of error because they are not likely to recur in the new trial.
For the reasons stated above, the defendant is granted a
BRITT and BROCK, JJ., took no part in the consideration or decision of this case.
SHARP, C. J., concurs in result.