Appeal by the state from Gaines, Judge. Order entered 5 January 1981, in Superior Court, Mecklenburg County. Heard in the Court of Appeals 16 November 1981.
Morris, Chief Judge. Judges Hedrick and Martin (Robert M.) concur.
We note that the state did not file a record on appeal within the time stipulated by Rule 12(a) of the Rules of Appellate Procedure, and that it failed to ask for an extension of time to file cedure, and that it failed to ask for an extension of time to file from this Court. We will, however, suspend the requirement of Rule 12(a) and consider this appeal pursuant to our residual authority expressed in Rule 2 in order to prevent manifest injustice.
The central issue raised on appeal is whether the trial court erred in granting the defendant's motion to suppress the testimony of his wife, Mattie Funderburk. We find that G.S. 8-57 did not render incompetent the proposed testimony of Mrs. Funderburk in view of the North Carolina Supreme Court's recent decision in State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981).
The Supreme Court in Freeman modified the common law rule of general disqualification in criminal proceedings of the testimony of a spouse of a defendant involving confidential communications between spouse and defendant. Finding that "the common law rule no longer complies with the purposes for which it was created," Justice Copeland, for the Court, wrote:
Henceforth, spouses shall be incompetent to testify against one another in a criminal proceeding only if the substance of the testimony concerns a "confidential communication" between the marriage partners made during the duration of their marriage.
Id. at 596, 276 S.E.2d at 453. In determining whether the testimony includes a "confidential communication," the courts are to be guided by the Supreme Court's previous decisions interpreting that term under G.S. 8-56. The decisions define a confidential communication as one "induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship." Id. at 598, 276 S.E.2d at 454. By limiting the spousal disqualification to testimony involving confidential communications within the marriage, the Court insured that the rule continued to serve its historial objective of promoting marital harmony, while prohibiting a defendant spouse from using the rule to inhibit the administration of justice. Id.
We find that Mrs. Funderburk's proposed testimony includes nothing which would render it incompetent under the rule of Freeman and the case law definition of "confidential communication."
The acts complained of in Freeman occurred on 5 June 1980. The defendant in the case sub judice allegedly shot Bracy on 18 May 1980. Defendant argues that retroactive application to this case of the rule as modified by Freeman would be tantamount to the imposition of an ex post facto law, violative of Article 1, Section 16 of the North Carolina Constitution and Article 1, Section 9 of the United States Constitution. He contends that the prohibition against the enactment of ex post facto laws applies to judicial as well as legislative action.
Our Supreme Court in State v. Rivens, 299 N.C. 385, 261 S.E.2d 867 (1980); cited in State v. Cooper, 304 N.C. 701, 286 S.E.2d 102 (1982), spoke directly to this question. There the Court held that there is no violation of the ex post facto clause of either the United States or North Carolina Constitution when a court decision is applied retroactively, because the clause applies to legislative and not judicial action. State v. Rivens, supra. Moreover, decisions are presumed to operate retroactively, and
overruling decisions are given solely prospective application only when there is ...