It is hornbook law that "[a] confidential communication between husband and wife is privileged and neither spouse may be compelled to disclose it when testifying as a witness." 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence 419 (6th ed. 2004). See also G.S. 8-57(c). Just today, the court of appeals decided a case that addresses when a spousal communication is "confidential." The case is State v. Terry. Officers received reports of drug activity at the defendant's home and obtained a search warrant for the residence. When they executed the warrant, they found marijuana and drug paraphernalia. They arrested the defendant and his wife. The two arrestees were placed, alone, in an interview room at the sheriff's office. They proceeded to discuss their situation, and in the course of the conversation, both "showed obvious knowledge of the drugs found in the residence." Without the knowledge of the defendant and his wife, video and audio of the conversation was recorded. Prior to trial, the defendant moved to suppress any evidence about the conversation, contending that it was protected by the confidential spousal communication privilege. The trial judge denied the motion on two grounds. First, he concluded that the "conversation appeared to be a conversation between two individuals . . . suspected of a crime and was not a conversation that would appear to be one between a husband and wife, per se. It was not a conversation that appeared to be . . . induced by the marital relationship . . . [...]
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