544 P.2d 219 (Ariz. 1975), 3252, State v. Whitaker

Docket Nº:3252.
Citation:544 P.2d 219, 112 Ariz. 537
Opinion Judge:[9] Cameron
Party Name:The STATE of Arizona, Appellee, v. John Leon WHITAKER, Appellant.
Attorney:[6] Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Ronald L. Crismon, Asst. Attys. Gen., Phoenix, for appellee. [7] Ross P. Lee, Maricopa County Public Defender, by Garth V. Smith, Deputy Public Defender, Phoenix, for appellant.
Case Date:December 22, 1975
Court:Supreme Court of Arizona

Page 219

544 P.2d 219 (Ariz. 1975)

112 Ariz. 537

The STATE of Arizona, Appellee,


John Leon WHITAKER, Appellant.

No. 3252.

Supreme Court of Arizona.

December 22, 1975

In Banc.

Rehearing Denied Jan. 27, 1976.

Page 220

[112 Ariz. 538] 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[112 Ariz. 539]

Page 221

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.


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...

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