State law prohibits private conversations between husband and wife from being introduced at trial. But what exactly qualifies as a “confidential conversation” between a husband and wife? In a recent ruling, a closely divided N.C. Supreme Court held that a conversation at a public visiting area at a jail, even if overheard by no one else, was not a confidential communication because no expectation of privacy could exist.
On June 11, 2002, Harriett “Brownie” Highsmith was found murdered in her house in Robersonville. Mickey Rollins was soon identified as a suspect in the case, but police did not have enough evidence to arrest him.
In September 2003, Rollins was in jail on other charges. Tolvi Rollins, Mickey Rollins’ wife, was arrested for felony witness intimidation for threats she allegedly made to a witness in the case that then had her husband behind bars awaiting trial. Police interviewed her about the Highsmith murder but she denied any knowledge. The next day Tolvi Rollins requested another interview with police. At that interview, she stated that her husband had confessed to her that he had killed Highsmith.
Tolvi Rollins visited her husband in jail five different times at three different jails over the next two months. On three of those occasions, she wore a recording device. On all five occasions, Mickey Rollins admitted to killing Highsmith.
On Dec. 5, 2003, Mickey Rollins was charged with Highsmith’s murder. After trying unsuccessfully to have his wife’s statements suppressed, he eventually pleaded guilty to first-degree murder for Highsmith’s death but reserved the right to challenge the admission of his wife’s statements. On appeal, the N.C. Court of Appeals ruled in favor of Rollins, finding that his wife’s statements were covered by martial privilege and should not have been admitted.
Marital privilege, the legal doctrine that communications between spouses are private, and not admissible in court proceedings, dates back to at least 1580. That is not to say that the exact rules are the same as in 1580. The original version, found in medieval English common law, was based upon a view that the husband and wife were one, with the wife having no separate legal existence.
With the move in the 19th century to give women legal rights independent from their husbands, it became necessary to specifically spell out this privilege, which the N.C. General Assembly first did in 1868.
The privilege is currently codified as N.C. General Statue § 8-57(c), which states:
“No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.”
This ban on the admissibility of private communications is distinct from the more general question of whether one spouse can testify against the other.
The specific issue before the Supreme Court was whether Rollins’ statements to his wife were indeed “confidential communications.”
While North Carolina appellate courts have addressed this issue three times in the past, these cases were not the focus of Justice Edward Brady’s opinion for the high court. Instead, Brady drew upon a line of Fourth Amendment cases that focused upon reasonable expectations of privacy in the context of search and seizure cases.
“However, as with other confidential relationships, the protection afforded marital communications is not absolute and is inapplicable when no reasonable expectation of privacy exists,” wrote Brady for the court in the May 1 ruling.
“In the instant case, any reasonable expectation of privacy in the marital communications evaporated because each conversation took place in the public visiting areas of DOC facilities.”
Justices Mark Martin, Robert Edmunds, and Paul Newby joined in Brady’s opinion.
Chief Justice Sarah Parker and Justices Robin Hudson and Patricia Timmons-Goodson dissented from the majority holding, finding that the conversation should have been regarded as privileged.
“While I agree with the majority that the physical environment in which a marital conversation takes place may be one factor in determining whether a particular disclosure is confidential, it is neither the sole nor the determinative factor,” wrote Timmons-Goodson.
The case is State v. Rollins, (138PA08).
Michael Lowrey is an associate editor for Carolina Journal.