Phx. City Prosecutor v. Lowery

• Decision Date: 13 March 2018
• Docket Number: No. 1 CA-CV 17-0168,1 CA-CV 17-0168
• Citation: 418 P.3d 1081
• Parties: PHOENIX CITY PROSECUTOR, Petitioner/Appellant, v. The Honorable Laura LOWERY, Respondent Judge, Claudette Craig, Respondent/Real Party in Interest.
• Court: Arizona Court of Appeals

418 P.3d 1081

PHOENIX CITY PROSECUTOR, Petitioner/Appellant,

v.The Honorable Laura LOWERY, Respondent Judge,Claudette Craig, Respondent/Real Party in Interest.

No. 1 CA-CV 17-0168

Court of Appeals of Arizona, Division 1.

FILED March 13, 2018

Phoenix City Prosecutor's Office, Phoenix, By Amy B. Offenberg, Counsel for Petitioner/Appellant

Debus, Kazan & Westerhausen, Phoenix, By Tracey Westerhausen, Counsel for Respondent/Real Party in Interest

Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.

OPINION

CAMPBELL, Judge:

¶ 1 Phoenix City Prosecutor (the "City") appeals the superior court's decision affirming two rulings by the municipal court in favor of Real Party in Interest Claudette Craig. The City argues the superior court erred when it found that the anti-marital fact privilege applied to Craig's driving under the influence charges and when it granted Craig's motion to sever those charges from a criminal damage charge. We hold that the anti-marital fact privilege precludes testimony by one spouse against another regarding DUI charges and that severance of the criminal damage charge from the DUI charges was proper. Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Craig was charged with three counts of driving under the influence of alcohol ("DUI"), Ariz. Rev. Stat. ("A.R.S.") §§ 28–1381(A)(1) (impaired to slightest degree), –1381(A)(2) (blood alcohol of .08 or more), –1382(A)(1) (extreme DUI), and one count of criminal damage, a domestic violence offense, A.R.S. §§ 13–1602, –2601(A). Before trial in the municipal court, Craig moved to preclude testimony and statements by her husband regarding the three DUI charges. See A.R.S. § 13–4062(A)(1) (anti-marital fact privilege). Craig also moved to sever the three DUI charges from the criminal damage charge.

¶ 3 The City responded that Craig's husband had called the police to say he was concerned that Craig had been drinking and might attempt to drive. The City claimed he parked one of the couple's vehicles behind the couple's van to prevent Craig from driving away in the van. It alleged that, Craig, intoxicated and undeterred by the car blocking her way, backed the van out, shoving the other car fifteen feet down the driveway. When the police arrived, Craig was not in a vehicle. An officer noted property damage to the van consisting of a small dent and some scratches on the rear bumper and a large dent on the front bumper of the other vehicle. The City argued that the exception to the anti-marital fact privilege for crimes committed by a wife against her husband found in A.R.S. § 13–4062(1) applied to the DUI charges as well as the criminal damage charge. The municipal court disagreed, severed the criminal damage count from the DUI counts and precluded Craig's husband from testifying in the DUI trial.

¶ 4 The City filed a petition for special action. The superior court accepted jurisdiction but denied relief to the City. The City appealed to this court.¹

DISCUSSION

¶ 5 Craig argues that this court has jurisdiction under A.R.S. § 12–2101(A)(1). Section 12–2101(A)(1) confers "appellate jurisdiction over the superior court's final judgment in a special action." State v. Chopra , 241 Ariz. 353, 355, ¶ 8, 387 P.3d 1282, 1284 (App. 2016). The superior court's ruling, however, does not appear to be a final judgment within the meaning of A.R.S. § 12–2101(A)(1). See State v. Bayardi , 230 Ariz. 195, 197 n. 4, ¶ 7, 281 P.3d 1063, 1065 (App. 2012). We need not decide this issue here. This appeal raises an issue of first impression, see State ex rel. Romley v. Martin , 203 Ariz. 46, 47, ¶ 4, 49 P.3d 1142, 1143 (App. 2002), and there is no equally plain, speedy, and adequate remedy by appeal, see Ariz. R.P. Spec. Act. 1(a). We therefore elect to exercise special action jurisdiction. See Bayardi , 230 Ariz. at 197, ¶ 7, 281 P.3d at 1065 (court sua sponte accepted special action jurisdiction).

¶ 6 Accordingly, we review the superior court's ruling on the applicability of the anti-marital fact privilege for an abuse of discretion. State v. Whitaker , 112 Ariz. 537, 542, 544 P.2d 219, 224 (1975). We review the interpretation and application of statutes de novo. See State v. Boyston , 231 Ariz. 539, 543, ¶ 14, 298 P.3d 887, 892–93 (2013). The anti-marital fact privilege provides, in part, that a wife may prevent her spouse from testifying for or against her regarding any "events occurring during marriage." A.R.S. § 13–4062(1). The anti-marital fact privilege does not apply, however, in "a criminal action or proceeding for a crime committed by the husband against the wife, or by a wife against the husband." A.R.S. § 13–4062(1).² Craig does not dispute that her husband can testify about the criminal damage claim because he is a co-owner of the car, and the crime therefore, allegedly was committed "against" him. Craig, however, argues that the criminal damage charge is the only charge to which the exception to the anti-marital fact privilege applies and such testimony should be precluded for the other charged offenses pursuant to the privilege.

¶ 7 The legislative purpose of the privilege is "to support the peace and tranquility of families and to protect the marital relation[ship]." Whitaker , 112 Ariz. at 540, 544 P.2d at 222. This means that "whether the marital privilege should be recognized and under what circumstances ... involves a determination of the rights and status which flow from the institution of marriage." State v. Williams , 133 Ariz. 220, 232, 650 P.2d 1202, 1214 (1982). As our supreme court has recognized, the Arizona Legislature has "made it clear that it places paramount importance on the marital relationship and believes the privilege is necessary to protect that relationship from the strain which would be placed upon it if spouses were allowed to testify against each other." Williams , 133 Ariz. at 232, 650 P.2d at 1214 ; see also State v. Watkins , 126 Ariz. 293, 298, 614 P.2d 835, 840 (1980) ("The anti-marital fact privilege exists by virtue of legislative fiat, as a matter of policy to protect certain interests" involved in the marital relationship.).

¶ 8 In construing the privilege in a predecessor statute, our supreme court concluded the exception allows "testimony in all cases in which the crime committed [s]o closely touches or affects the other spouse as to render the reason for the rule—promotion of marital peace and apprehension of marital dissension—inapplicable." State v. Crow , 104 Ariz. 579, 585, 457 P.2d 256, 262 (1969), overruled on other grounds by State v. Burchett , 107 Ariz. 185, 484 P.2d 181 (1971). Therefore, in determining whether a crime is a crime committed by one spouse against another, we look to whether the crime "places a strain on the marriage relationship." State v. Salazar , 146 Ariz. 547, 550, 707 P.2d 951, 954(App. 1985) (citing Crow , 104 Ariz. 579, 457 P.2d 256, and Williams , 133 Ariz. 220, 650 P.2d 1202 ). The exception does not require that the other spouse be the actual "victim" of the defendant-spouse's offense. While in some cases it is clear that the spouse is the victim, such as murder or assault, there are others when the victim-spouse suffered no physical injury, but the court found the exception to the privilege still applied. See Crow , 104 Ariz. at 586, 457 P.2d at 263 (husband murdered wife's brother and father, thereby effectively ending the marriage; no error in permitting wife to testify as to the first degree murder charges in addition to assault charge against her when spouses had agreed to terminate marriage and husband committed offenses when the brother and father accompanied the wife to husband's home to pick up her belongings); Whitaker , 112 Ariz. at 539–42, 544 P.2d at 221–24 (husband was convicted of assault with a deadly weapon for shooting into estranged wife's apartment and exchanging gunfire with wife's live-in boyfriend; trial court did not err in finding the exception to the anti-marital fact privilege applied because estranged husband endangered his wife and daughter by shooting into their apartment while they were inside).

¶ 9 The City argues that under Salazar , the exception for crimes committed by a wife against her husband applies to the DUI charges here. Salazar , however, is distinguishable. Salazar considered whether the crime of endangerment, which included reckless conduct, constituted a crime committed by a husband against his wife under A.R.S. § 13–4062(1). 146 Ariz. at 550, 707 P.2d at 954. The court found that "having an accident driving while intoxicated on a city street at 55 miles per hour with one's spouse as a passenger is a crime which most certainly places a strain on the marriage relationship, the test discussed by our supreme court in State v. Crow. " Id . Further, endangerment necessarily requires a defendant to place another, in that case the spouse, in substantial risk of imminent death or physical injury. See A.R.S. § 13–1201(A) ("A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury."). Here, unlike in Salazar , there is no allegation that the DUI posed any physical threat to Craig's husband. And although the defendant in Salazar was also charged with a DUI, the issue of whether the DUI offense fell within the exception to the anti-marital fact privilege was not before the court. 146 Ariz. at 550, 707 P.2d at 954.

¶ 10 The City next argues, citing Salazar , that if the exception to the anti-marital fact privilege applies to one charge, it applies to all charges when the charges arise out of the same course of conduct.³ Contrary to the City's argument, Salazar did not hold that if the exception applies to one charge, it applies to all of the others.

¶ 11 The City then argues that Arizona's Victims' Bill of Rights, Ariz. Const. art. 2, § 2.1, and its statutory counterpart, A.R.S. §§ 13–4401...