State v. Whitaker

• Decision Date: 22 December 1975
• Docket Number: No. 3252,3252
• Citation: 112 Ariz. 537,544 P.2d 219
• Parties: The STATE of Arizona, Appellee, v. John Leon WHITAKER, Appellant.
• Court: Arizona Supreme Court

Page 219

544 P.2d 219

112 Ariz. 537

The STATE of Arizona, Appellee, v. John Leon WHITAKER, Appellant.

No. 3252.

Supreme Court of Arizona, In Banc.

Dec. 22, 1975.

Rehearing Denied Jan. 27, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Ronald L. Crismon, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by Garth V. Smith, Deputy Public Defender, Phoenix, for appellant.

CAMERON, Chief Justice.

This is an appeal by John Leon Whitaker from a jury verdict and judgment of guilt of the crime of assault with a deadly weapon, a gun, A.R.S. §§ 13--241 and 249, and sentence thereto of not less than five nor more than seven years in the Arizona State Prison, said sentence to run concurrently with an identical sentence imposed as a result of a probation revocation hearing in a separate case.

Defendant raises three issues on appeal:

1. Did the court err in allowing defendant's wife to testify as a prosecution witness over defendant's objection?

2. Did the prosecuting attorney in his closing argument make improper references to defendants' failure to testify?

3. Did the trial court give improper and misleading instructions to the jury on the law of self-defense?

The facts necessary for a determination of this appeal are as follows. Defendant and Rosalynd Whitaker were married in 1969 and had one child, a daughter, Shawn. They began experiencing marital difficulties in 1971 and about one and one-half years after their marriage they separated. On 22 February 1972, Rosalynd Whitaker filed a complaint requesting a judgment of separate maintenance, which was granted by order dated 7 April 1972. In January 1974 Rosalynd filed an action for divorce, but she withdrew her petition the same month, assertedly because she wanted her husband to have no visitation rights and could not afford the attorney's fees necessary to obtain such an order.

At the time of the incident in question, Rosalynd and her daughter were living in a duplex apartment in Tempe, Arizona, with the alleged victim, Steve Sylvester. The apartment was rented in Rosalynd's name. At trial, Rosalynd asserted that her intention was to marry Sylvester as soon as she obtained a divorce from defendant and that she and Sylvester had been living together approximately one and one-half years at the time of the shooting and had been living in the apartment eight or nine months.

At approximately 5:45 p.m. on 22 June 1974, defendant arrived at his wife's apartment and knocked on the front door. Rosalynd, Shawn, and Sylvester were all inside the apartment. When no one acknowledged defendant's knock, he began to pound and kick at the door, while yelling 'telegram.' Meanwhile, Rosalynd went into the hallway to telephone the police. At that point, defendant went around to the rear door of the apartment and attempted to open it by turning the doorknob. Apparently finding the door locked, defendant broke the glass window and reached through with his hand, in which he held a pistol. Sylvester meanwhile had picked up a 16 gauge shotgun which had been purchased by Rosalynd Whitaker earlier that afternoon. There is no question that defendant fired four shots into the apartment striking no one and that Sylvester fired once, striking defendant and seriously wounding him in the right shoulder, although the order of the shots was disputed. At trial, Rosalynd and Sylvester testified that defendant fired one or two shots before Sylvester fired his gun; defendant's story, as related to Police Officer Metcalf, was that Sylvester fired first wounding the defendant in the right shoulder and then he, the defendant, pulled out his gun with his right hand and returned the fire.

Defendant was tried before a jury and found guilty. He now appeals.

ANTI-MARITAL FACT PRIVILEGE

Defendant argues that the court erred in allowing his wife to testify, over his objection, as a witness for the State.

At common law, the husband or wife of a party was incompetent to testify eithr for or against the party-spouse. This marital incompetency had two aspects, each supported by a distinct policy consideration. 8 Wigmore Evidence, McNaughton rev. 1961, § 2227; McCormick, Evidence 2nd Ed. 1972, § 66. In virtually all jurisdictions, including Arizona, the disqualification of an individual to testify in favor of his or her spouse, which was closely tied to the incompetency to testify of a party, has been abolished. See Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933); Wigmore, supra, § 2245; McCormick, supra, § 66; also see A.R.S. § 13--1802. However, in many jurisdictions the second aspect of the marital incompetency, which is in effect a privilege held by one or both of the spouses, has been maintained.

Our statute reads as follows:

'Anti-marital fact privilege;

'A person shall not be examined as a witness in the following cases:

'1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, be, without consent of the other, examined as to any communication made by one to the other during the marriage. These exceptions do not apply in a criminal action or proceeding for a crime committed by the husband against the wife, or by the wife against the husband, nor in a criminal action or proceeding against the husband for abandonment, failure to support or provide for or failure or neglect to furnish the necessities of life to the wife or the minor children. Either spouse may, at his or her request, but not otherwise, be examined as a witness for or against the other in a prosecution for bigamy or adultery, committed by either spouse, or for rape, seduction, the crime against nature or any similar offense, committed by the husband.' A.R.S. § 13--1802(1).

The anti-marital fact privilege, as distinguished from the privilege for confidential communications between a husband and wife, see A.R.S. § 12--2232, exists only during marriage and under Arizona law gives a criminal defendant, except in enumerated types of cases, an absolute right to prevent his or her spouse from being called as a witness. We have stated:

'Section 13--1802 A.R.S. deals with two separate and distinct concepts: incompetency of one spouse as a witness for or against the other, and the privilege held by one spouse which prevents adverse testimony by the other both during and after the marriage. The incompetency portion of our statute operates to absolutely disqualify a spouse as a witness for or against the other without his or her consent. The proscription applies only so long as the parties are married.' State v. Drury, 110 Ariz. 447, 451, 520 P.2d 495, 499 (1974).

The rationale for this rule has been variously stated, but in essence is two-fold: First, it is felt that the privilege is necessary to support the peace and tranquility of families and to protect the marital relation. See e.g., Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958).

Our statute rests upon such considerations. A.R.S. § 44--2702, Code of 1939, the predecessor statute to A.R.S. § 13--1802, was prefaced with the statement that '(t)here are particular relations in which it is the policy of the law to * * * preserve it inviolate; * * *.' The Reviser's Note to A.R.S. § 13--1802 states that the provisin just quoted was 'deleted as unnecessary.' Also see Zumwalt v. State, 16 Ariz. 82, 141 P. 710 (1914).

An alternative rationale has been stated as follows:

'A second reason, * * * (is) that there is a Natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other's condemnation, and to compelling the culprit to the humiliation of being condemned by the words of his intimate life partner.' Wigmore, Supra, § 2228 at 217.

However, desirable the above policies may be in the abstract, anti-marital fact privilege has been sharply criticized by a number of writes. McCormick discusses the privilege as follows:

'The privilege has sometimes been defended on the ground that it protects family harmony. But family harmony is nearly always past saving when the spouse is willing to aid the prosecution. The privilege is an archaic survival of a mystical religious dogma and of a way of thinking about the marital relation that is today outmoded.' (footnotes omitted) McCormick, supra, § 66 at 145--146.

And Wigmore strongly argues for the total abolition of the privilege:

'This privilege has no longer adequate reason for retention. In an age which has so far rationalized, depolarized and dechivalrized the marital relation and the spirit of femininity as to be willing to enact complete legal and political equality and independence of man and woman, this marital privilege is the merest anachronism in legal theory and an indefensible obstruction to truth in practice. It is unfortunate that the United States Supreme Court, when handed the opportunity in 1958, failed to eliminate this relic from the impediments to justice in the federal courts: * * *' Wigmore, supra, § 2228 at 2221.

Nevertheless, the privilege remains in effect in Arizona and this court is bound to enforce it until such time as it is modified or abolished by the legislature. The parties being, in fact, man and wife, the admissibility of the wife's testimony must be based upon some recognized exception to the general rule. Under the common law disqualification, the wife of a defendant was allowed to testify in a criminal prosecution for a crime committed against the person of the wife. McCormick, supra, § 66 at 145. This exception has been considerably extended by statute or judicial interpretation. Our statute provides that the privileg is inapplicable:

'* * * in a criminal action or proceeding for a crime committed by the husband against the wife or by the wife against the husband, nor in a criminal action or proceeding against the husband for abandonment, failure to...