Crying not an intentional -- therefore privileged -- communication

Tears shed by a rapist while in his wife's presence eventually proved the downfall of a Port Harbor man who, on appeal, hoped that those same tears would open the prison gates for him.

But unfortunately for Lesiba Matsoake, 41, the North Carolina Court of Appeals ruled on Oct. 20 that his spontaneous emotional reaction to seeing a police sketch of himself in the local paper does not constitute protected marital communications, as he claimed.

Judge John Tyson, writing for the court, said that whether the testimony given by Matsoake's now-former wife, Ruth Hart, to jurors was protected hinged on whether a "privileged confidential communication" occurred between the couple when they were still married.

"No testimony indicates Defendant intended to communicate anything to Hart by crying at the sight of the composite sketch," Tyson wrote.

According to court documents, the 26-year-old victim in this case was with her friends at a local Kill Devils Hill restaurant, Port O'Call, on June 9, 2003. When the establishment closed at 2 a.m., she and a female friend, Julia Shefcheck, went across the street to take a swim in the ocean.

While Shefcheck, a reported strong swimmer, got undressed and hit the water, the victim found the surf to be a bit rough for her liking and simply removed her pants to wade knee-deep. Moments later, sensing that she was being watched, the victim turned around to find a man standing there. Despite her warnings that her friends were coming, the man pushed the victim to the ground, put his hands around her neck and forced her legs open.

The victim testified that she had been penetrated "a couple of times" but said she was being choked and believed she was going to die. She didn't remember how long the encounter lasted.

Reports said the victim fought back, throwing sand in her assailant's eyes before he bit down on two of her fingers and escaped down the beach.

Police, working with the victim, created a sketch of the assailant that eventually appeared in the newspaper.

Shortly after the rape, documents show, Hart and Matsoake were on their way to a doctor's appointment in Virginia Beach, Virginia, when Hart, who was driving, heard something "like water." Matsoake was in the passenger seat reading the newspaper.

"I heard a tear drop hit the paper and I looked over and [Matsoake] was crying," Hart testified.

Hart, who noticed that Matsoake was weeping while looking at the composite sketch of the rape suspect, knew that her husband frequented local bars, including Port O'Call, often by himself and would usually stay out until the wee hours of the morning.

Hart called Crime Stoppers to see if a suspect had been identified in the rape, but kept the information regarding Matsoake to herself.

In 2004, according to court documents, the couple moved to Virginia Beach for a job opportunity. For the next several years, Hart continued to occasionally call Crime Stoppers for updates.

Finally, in March 2007, she met with a detective and relayed her suspicions about her husband. She offered that she knew Matsoake had used a particular pair of hair clippers the day before, and authorities, after obtaining a warrant, seized those clippers and sent them to a North Carolina lab for testing.

DNA from Matsoake's clippers matched DNA taken nearly four years earlier from semen left in the victim's body. By the time Matsoake was indicted, in June 2008, he had fled to his native South Africa. It would take another 3 ½ years before he was extradited to face charges of first-degree rape.

According to authorities, DNA taken in 2012 from a swab of Matsoake's cheek also matched DNA left behind by the rapist.

During trial, Matsoake's attorney argued that his client's crying was a communication and "some sort of tacit admission to some sort of involvement" in the rape, a nonverbal communication that shouldn't be admitted as evidence.

The trial judge, however, found that the episode was not spousal confidential communication, reasoning that confidential communication "concerns verbal spoken words which were given in a setting of confidentiality that were prompted by the affection, confidence and loyalty engendered by such relationship."

Matsoake's sobbing, the judge held, was an act, not a communication.

On Aug. 21, 2014, Matsoake was found guilty and sentenced to 20-25 years in prison.

On appeal, Matsoake argued that the trial court should have disallowed Hart's testimony about what he considered a confidential marital communication.

Pursuant to state law, no spouse "shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage."

According to 1981's State v. Freeman, it is an extension of the common-law privilege that "allows marriage partners to speak freely to each other in confidence without fear of being thereafter confronted with the confession in litigation."

Tyson noted that the state Supreme Court has held that the "ancient privilege" is in fact codified in statutes and intended to enable either spouse to prevent the other from testifying against them.

But here, the court agreed with prosecutors that Matsoake's tears "could hardly be defined as a conscious statement, acknowledgment or gesture to his wife."

Hart, the court found, had no idea that her husband was looking at a composite sketch until she heard his teardrop hit the paper and nothing suggests that he intentionally communicated with Hart when he saw the rendering.

Matsoake's attorney, M. Alexander Charns of Charns & Donovan in Durham, provided Lawyers Weekly with a comment via the defendant's brief: "A husband 'should not have to couch and compose his confidential communications, gestures, expressions, tears and other outward displays of emotion (even his silence), lest his most intimate life partner be made a witness against him.'"

"We are considering our options as far as filing a PDR," Charns added.

Matsoake also argued that the court erred in failing to instruct the jury on the lesser charge of attempted first-degree rape, citing conflicting testimony from the victim regarding penetration. The court disagreed, noting that the state presented substantial evidence of penetration, including medical exam results.

In August, Matsoake was found guilty of sexual battery in Virginia and faces more charges there stemming from two 2004 sexual assaults and another in late 2006.

Published: Tue, Nov 10, 2015