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STATE v. BRITT
360 S.E.2d 660 (1987)
320 N.C. 705
STATE of North Carolina
v.
Jerome Parker BRITT.
No. 498A84.
Supreme Court of North Carolina.
October 7, 1987.
Lacy H. Thornburg, Atty. Gen. by Thomas J. Ziko, Asst. Atty. Gen., Raleigh, for the State.
A. Jackson Warmack, Jr., Rich Square, for defendant-appellant.
FRYE, Justice. Defendant contends on this appeal that the trial court erred in allowing his wife to testify against him at his trial and in imposing a life sentence without permitting the jury to determine his sentence. We find no reversible error in defendant's trial and sentencing. We also find no error in the denial of defendant's motion for appropriate relief. Defendant was indicted on 9 January 1984 for the murder of James Thomas Cotton. The case came on for trial before Barefoot, J., on 7 May 1984, and the jury found defendant guilty of first degree murder. The trial judge sentenced defendant to life imprisonment after the State prayed judgment on the grounds that it knew of no evidence of any of the aggravating factors set forth in N.C.G.S. § 15A-2000. Defendant appealed to this Court. The State's evidence at trial tended to show that defendant believed that his estranged wife was having an affaire with the victim, James Cotton, and that defendant
had threatened Cotton. On 19 December 1983, at about dusk, Cotton was in Lowe's Fish Market in Seaboard, North Carolina. One of the State's witnesses testified that he saw defendant drive up, get out of his car, and, shotgun in hand, apparently reconnoiter the interior of the fish market before going in. Three witnesses, who were in the fish market at the time, testified that defendant burst into the store, holding his shotgun. He yelled, "I told you, [expletive], I'm going to kill you," or words to that effect, and shot Cotton four or five times. Cotton, who died within a few minutes, was subsequently found to have been armed. Defendant offered evidence that Cotton had previously harassed and threatened him. He testified that he went into the fish market on 19 December 1983 to resolve matters with Cotton. Although he took his shotgun with him from his truck, he left it outside the door of the fish market. As soon as defendant entered the store, Cotton started to fumble in his pockets. Believing that Cotton was going for a gun, defendant reached back outside the door for his own gun and shot Cotton. I.The State called defendant's wife as one of its rebuttal witnesses. Defendant objected pursuant to N.C.G.S. § 8-57. Subsection (b) of that statute provides, "The spouse of the defendant shall be competent but not compellable to testify for the State against the defendant in any criminal action or grand jury proceedings...." N.C.G.S. § 8-57(b) (1986). See also State v. Waters, 308 N.C. 348, 302 S.E.2d 188 (1983). The trial judge accordingly held a voir dire where defendant's attorney questioned Mrs. Britt to determine whether she was being compelled to testify, and the following transpired:
1. We note that the privilege belongs to the wife, not to the defendant, and it does not appear that anyone advised her that she had a right to refuse to testify. Once challenged, the better practice is for the trial judge to advise the spouse that he or she cannot be compelled to testify in cases where this statute applies, and then to determine whether the spouse is in fact still willing to testify. 2. Defendant, citing State v. Thompson,290 N.C. 431, 226 S.E.2d 487 (1976), contends that his wife's testimony was incompetent and that therefore the error was reversible per se. However, we have said that a spouse's testimony is only incompetent if the substance of the testimony concerns a confidential communication. State v. Waters, 308 N.C. 348, 302 S.E.2d 188 (1983); State v. Freeman, 302 N.C. 591, 276 S.E.2d 450 (1981). There is no suggestion that defendant's wife was allowed to testify to confidential communications. Therefore, her testimony was not incompetent.
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