Ex Parte Billingsley

At issue is whether a prosecutor may comment on a defendant's failure to call his spouse to testify where it appears the spouse's testimony would be probative on the question of defendant's guilt or innocence. We hold that such comment is improper.

Defendant/petitioner was convicted of second degree murder and sentenced to twenty years' imprisonment. The Court of Criminal Appeals affirmed. As one basis for its decision, the Court of Criminal Appeals held that a spouse is a competent witness until he or she elects not to testify. The court reasoned that, since the spouse is competent and is…