State v. Carver

• Decision Date: 28 June 2011
• Docket Number: No. 1 CA–CR 10–0594.,1 CA–CR 10–0594.
• Citation: 227 Ariz. 438,611 Ariz. Adv. Rep. 7,258 P.3d 256
• Parties: STATE of Arizona, Appellant,v.Larry Lloyd CARVER, Appellee.
• Court: Arizona Court of Appeals

227 Ariz. 438
258 P.3d 256
611 Ariz. Adv. Rep. 7

STATE of Arizona, Appellant,
v.
Larry Lloyd CARVER, Appellee.

No. 1 CA–CR 10–0594.

Court of Appeals of Arizona, Division 1, Department C.

June 28, 2011.

[258 P.3d 257]

William G. Montgomery, Maricopa County Attorney By Jeffrey Trudigan, Deputy County Attorney, Phoenix, Attorneys for Appellant.Droban & Company, P.C. By Kerrie M. Droban, Anthem, Attorneys for Appellee.OPINION KESSLER, Judge.

¶ 1 The State of Arizona appeals the trial court's ruling that a 2009 amendment to Arizona Revised Statutes (“A.R.S.”) section 13–4062(1) (2010) (the marital communications privilege) cannot be applied to compel a witness to testify about communications made during marriage and before the amendment's effective date. The court based its holding on the conclusion that the amendment is substantive and the legislature did not expressly state the amendment was retroactive. We agree with the State that the amended statute governs the admission of testimony subject to the marital communications privilege and thus is not being applied retroactively. Even if applying the amended statute to prior communications is deemed a retroactive application, the amendment is merely procedural and can be applied to prior communications without the legislature expressly stating the amendment applies retroactively. Accordingly, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 In December 2006, the police found H.Q. dead and R.W. seriously injured from gunshot wounds. In 2007, the State charged the defendant, Larry Lloyd Carver, and his son with first-degree murder, first-degree burglary, aggravated assault, and theft, all arising from the shooting. The police arrested Carver after his wife, Cheryl, told them that Carver made statements to her during their marriage that implicated him in the crimes.

[258 P.3d 258]

¶ 3 Shortly before Carver's trial, Cheryl invoked the marital communications privilege and refused to testify about what Carver had allegedly told her.¹ The State dismissed its case against Carver without prejudice.

¶ 4 In the wake of the dismissal, H.Q.'s family successfully lobbied the legislature to amend A.R.S. § 13–4062(1) to preclude a spouse from invoking the marital communications privilege if that spouse had previously voluntarily given the information to the police. The governor signed the amendment into law in July 2009.

¶ 5 With the amended language shown in italics, section 13–4062(1) reads:

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

1. [N]or can either, during the marriage or afterwards, without consent of the other, be examined as to any communication made by one to the other during the marriage. Either spouse may be examined as a witness for or against the other in a prosecution for an offense listed in § 13–706, subsection F, paragraph 1, ... if either of the following occurs :

(a) Before testifying, the testifying spouse makes a voluntary statement to a law enforcement officer during an investigation of the offense or offenses about the events that gave rise to the prosecution or about any statements made to the spouse by the other spouse about those events.

(b) Either spouse requests to testify.

A.R.S. § 13–4062(1)(a) (emphasis added).²

¶ 6 In December 2009, the State refiled the murder, burglary, and aggravated assault charges against Carver, all of which are included in A.R.S. § 13–706(F)(1) (2010). Carver moved to preclude the State from compelling Cheryl's testimony, arguing the 2009 amendment cannot be applied retroactively to communications he made to her during their marriage and before the amendment.³ The trial court granted the motion, finding the amendment “clearly regulates primary conduct and alters the legal consequences that attached to such conduct at the time it was committed.” The State timely appealed.⁴ We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 13–4032(6) (2010).

DISCUSSION

¶ 7 The State first argues that “the general requirement” of A.R.S. § 1–244 (2002) (the statute governing the retroactivity of statutes) is not implicated here because the marital communications privilege does not vest until the time of trial.⁵ Therefore, according

[258 P.3d 259]

to the State, “applying the 2009 amendment to a 2010 court proceeding does not constitute a ‘retroactive’ application” of A.R.S. § 13–4062(1)(a). The State alternatively contends that even if such application was retroactive, the amendment is merely procedural and therefore can be applied retroactively without the amendment expressly stating it is to be applied retroactively. Both questions as applied to an amendment to the marital communications privilege present issues of first impression in Arizona.

¶ 8 “We review de novo issues involving interpretation, application, and retroactivity of statutes.” State v. Williams, 220 Ariz. 331, 335, ¶ 11, 206 P.3d 780, 784 (App.2008). “If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction.” State v. Barnett, 209 Ariz. 352, 354, ¶ 7, 101 P.3d 646, 648 (App.2004) (quoting State v. Johnson, 171 Ariz. 39, 41, 827 P.2d 1134, 1136 (App.1992)).

¶ 9 The question before us is the same as in In re Shane B.: “[T]he dispositive issue is whether the ... court's application of [the statute] was indeed retroactive, and if so, whether such application is permissible.” 198 Ariz. 85, 86, ¶ 4, 7 P.3d 94, 95 (2000).

¶ 10 We hold that application of the 2009 amendment of A.R.S. § 13–4062(1) to testimony offered after its effective date is not retroactive in nature, regardless of whether the underlying conduct that gave rise to the proceedings or the communication occurred prior to the amendment. We agree with the reasoning of other courts that applying an amendment to the marital communications privilege to court proceedings on or after the amendment's effective date is not a retroactive application even if the crime and communication occurred before the amendment. People v. Dolph–Hostetter, 256 Mich.App. 587, 664 N.W.2d 254, 262 n. 7 (2003) (“The marital-communications privilege is invoked at the time of the pertinent court proceedings and thus is not ‘vested’ at an earlier date.”); State v. Clevenger, 69 Wash.2d 136, 417 P.2d 626, 631 (1966) (holding that the marital communications privilege is invoked only at the time testimony is offered and not at the time the communication occurred).

¶ 11 In Clevenger, the Washington Supreme Court found unpersuasive the criminal defendant's argument that retroactive application of an amendment to the marital communications privilege was erroneous because the legislature did not expressly state the amendment was retroactive.⁶ Id. The court held that because “the privilege is not asserted at the time the action is filed but only when the testimony of the spouse is offered at a trial or hearing,” “the fair meaning of the statute is that it shall apply in trials or hearings which are held after the effective date of the act”; thus, applying the restriction of the privilege to later testimony is prospective in nature. Id. The Michigan Court of Appeals reached the same result in Dolph–Hostetter, relying upon Clevenger. 664 N.W.2d at 262, 262 n. 7.⁷

¶ 12 Additionally, many courts have held that in general, the “applicability and availability of a privilege should be governed by the current law in force at the time of trial and not at the time the alleged confidential communication took place.” Scott v. McDonald, 70 F.R.D. 568, 573 (N.D.Ga.1976) (citing 97 C.J.S. Witnesses § 51, p. 439 (1957) (now 98 C.J.S. Witnesses § 298) (stating that the competency of witnesses to testify is determined by the law in force at the time of

[258 P.3d 260]

trial)); see, e.g., Wrape v. Hampson, 78 Ind. 499, 500 (1881); Burk v. Putman, 113 Iowa 232, 84 N.W. 1053, 1054 (1901); O'Bryan v. Allen, 108 Mo. 227, 18 S.W. 892, 893 (1891) (regarding an amendment changing the competency of witnesses to testify in a contract case: “Laws which change the rules of evidence relate to the remedy only, may be applied to existing causes of action, and are not precluded from such application by the constitutional provision.... The changes which are enacted may lawfully be made applicable to existing causes of action, even in those states in which retrospective laws are forbidden”); Whitehurst v. Pettipher, 87 N.C. 179, 179 (1882); Prod. Credit Ass'n of Mandan v. Olson, 280 N.W.2d 920, 927 (N.D.1979); John v. Bridgman, 27 Ohio St. 22, 43 (1875); Dyer v. Blackhawk Leather LLC, 313 Wis.2d 803, 758 N.W.2d 167, 176 (Wis.App.2008).⁸

¶ 13 We agree with the reasoning in Clevenger and Dolph–Hostetter that the marital communications privilege as applied here does not vest until a person is called as a witness or sought to be deposed. We note that the contrary decisions cited in n.8, supra, are distinguishable because the communicating party, such as a client speaking with her attorney or mental health professional, has an expectation that communications that are privileged will remain so if the law changes. The marital communications privilege here is different because at the time of the communication in this case, the testifying spouse (Cheryl) held the privilege in cases involving offenses listed in A.R.S. § 13–706(F)(1) or the other offenses enumerated in the privilege statute, while the defendant spouse (Carver) held the privilege at all other times that an exception did not apply. Supra, n. 3. Thus, unlike other privileges in which the party opposing disclosure has a valid expectation that he or she holds the privilege ( e.g., a client relating information privileged under the attorney-client privilege), Carver had no expectation that his statements to Cheryl would be privileged if Cheryl requested to testify. Thus, the amendment adding...