Crying can be used as evidence against spouse, court rules

RALEIGH, N.C. (AP) — When a husband or wife cries, can their tears be used as evidence against them?

Yes, the North Carolina Court of Appeals says in one case, ruling Tuesday that crying isn't protected by confidential communication between spouses.

The case involves alleged serial rapist Lesiba Simon Matsoake, a South African man who appealed his conviction in the rape of a woman on a Kill Devil Hills beach in June 2003. His now ex-wife, Ruth Hart, testified that she first became suspicious of her husband when he started crying while looking at a composite sketch of the attacker, presumably a drawing that looked similar to him.

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Shortly after the rape, Matsoake and Hart were traveling from their home in Point Harbor, North Carolina, to a doctor's appointment in Virginia Beach, Virginia. Hart was driving. Matsoake was sitting in the passenger seat reading the paper.

"I heard like water, I heard a tear drop hit the paper and I looked over and (the defendant) was crying," she said at trial, over the objection of Matsoake's attorneys.

Although Hart called Crime Stoppers several times over the years to find out whether anyone had been arrested in the rape, she didn't go to police with her suspicions until March 2007, nearly four years later, when the couple was living in Virginia Beach, Virginia.

Matsoake was indicted in June 2008, but by that time, he was living in his native South Africa. He was extradited in January 2012.

In addition to his crying, Hart also wondered whether Matsoake was the rapist because she knew he went to bars, including the one where the victim was, three or four nights a week.

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DNA found on the victim matched DNA found in electric hair clippers that Matsoake had used, the evidence showed.

Before Hart's testimony, Matsoake's defense attorney argued that the crying was a communication and that the defendant was making "some sort of tacit admission to some sort of involvement" in the attack, which was a "form of nonverbal communication (that) shouldn't be allowed."

The Court of Appeals noted that the North Carolina Supreme Court has held that either spouse can prevent the other from testifying to a confidential communication. But the appeals court agreed with the trial court that spoken words, not crying, are a protected communication.

"Defendant did not communicate with his then-wife by crying in the car while looking at the composite sketch of the victim's assailant," the appeals court ruled. "Defendant also didn't make an admission to his spouse through that act."

Matsoake was convicted of first-degree rape and sentenced to 20 to 25 years in prison. Because the appeals court decision was unanimous, the Supreme Court doesn't have to consider the case if it's appealed.

Matsoake is also accused of three rapes in Virginia, stemming from two attacks in 2004 and one in 2006.

In August, Matsoake, 41, appeared in court in Virginia Beach. He was found guilty of sexual battery in one assault, and his case went to the grand jury for felony charges, WTKR-TV reported (http://bit.ly/1W2G9KB).

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