State v. Figueroa, 1

CourtCourt of Appeals of Arizona
Citation593 P.2d 940,122 Ariz. 190
Docket NumberNo. 1,CA-CR,1
PartiesSTATE of Arizona, Appellee, v. Ruben FIGUEROA, Appellant. 3275.
Decision Date22 February 1979
Ross P. Lee, Maricopa County Public Defender, by Joel M. Glynn, Deputy Public Defender, Phoenix, for appellant

SCHROEDER, Presiding Judge.

Appellant, Ruben Figueroa, was convicted of involuntary manslaughter in the homicide of his six-week-old daughter, Starlet Figueroa. Sentence was suspended and appellant was placed on probation for ten years on certain terms and conditions, including the condition that he spend a year in the County Jail. The issues on appeal are whether the court erred in compelling appellant's wife to testify against him, whether the jury was properly instructed on criminal negligence, and whether the conviction was supported by substantial evidence.

The facts taken in a light most favorable to sustaining the conviction are as follows:

Early in the morning of February 20, 1977, appellant's wife, Cathy Figueroa, went to the living room to comfort the crying child, left the baby sleeping on the living room couch and returned to bed. When the crying resumed the appellant went to the living room. Mrs. Figueroa followed her husband and noticed that the baby's head had been covered with a blanket and placed face down in a pillow propped in the corner of the couch. Appellant had apparently done this on several prior occasions in an effort to muffle the sound of the baby's crying. He told the police that he couldn't stand the baby's crying which made him nervous. As the baby began to whimper and gasp for air Mrs. Figueroa's efforts to assist the child were thwarted by the appellant who swatted her away.

Later that morning, about 8:15 a. m., appellant and his wife awoke and went to check on the baby. The child was still lying with her face pressed into the pillow but had stopped breathing.

Mrs. Figueroa administered mouth-to-mouth resuscitation. They carried the child to the apartment manager's apartment, and called the fire department. The child was pronounced dead at the Maricopa County Hospital.

When the State called the appellant's wife to testify at trial she told the court that she preferred not to testify. The court granted the State's request that she be given immunity and ordered her to testify.

The first issue on appeal is whether the court erred in ordering her to testify over the appellant's and her own objection. Husband and wife testimonial disqualifications and privileges are established in criminal cases in A.R.S. § 13-4062, formerly A.R.S. § 13-1802.

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.

The first clause of the first sentence of paragraph "1", establishes a spousal disqualification and the second clause of the same sentence sets forth a marital communications privilege. However, the second sentence of the paragraph removes any disability or privilege in criminal proceedings for crimes by one spouse against the other or for criminal abandonment or neglect proceedings. Similar exceptions were recognized at common law and have been adopted, with some variations in specificity, in virtually all common law jurisdictions. The exceptions generally encompass crimes against the person, property or children of the spouse. See McCormick on Evidence, §§ 66, 78, 84 (2d ed. 1972). The statutes are compiled in 2 Wigmore on Evidence, § 488 (3d ed. 1940). See also 8 Wigmore on Evidence, §§ 2239, 2332, 2333 (McNaughton rev. 1961). Wigmore is critical of limitations on spousal testimony and urges a broad interpretation of the exceptions. McCormick is also critical of restrictions on the testimonial capacity of spouses on the ground that they reflect an archaic view of the marital relationship. McCormick, § 66.

Appellant suggests that this is not a "crime against the wife" within the meaning of the language in the second sentence of the statute, and therefore a privilege remains. Any doubts on this score have been resolved against the appellant by the decision of our Supreme Court in State v. Crow, 104 Ariz. 579, 457 P.2d 256 (1969), which held that in a prosecution for the murder of the wife's father and brother, the crime was "against the wife" and that the defendant-husband could not prevent the wife's testimony. While appellant attempts to distinguish Crow because the spouses there were separated, the opinion does not turn on that point but rather upon the court's view that a crime against the wife's family is a crime against the wife. The instant case is an even more compelling one, for the victim was the child of the marriage and the statute expressly provides that the wife should testify in cases of child neglect. It would be anomalous indeed to prevent her testimony in a case of a child's death. Removal of a disqualification or privilege in prosecution for such crimes is supported by the Crow decision itself and authorities cited therein. E. g., O'Loughlin v. People, 90 Colo. 368, 10 P.2d 543 (1932).

Appellant also urges that in some fashion the wife herself had a privilege to refuse to testify in the case, and that therefore the court erred in ordering the testimony over her objection. There is no statutory authority for that position. The final sentence of the statute in question does provide a limited privilege for the wife to refuse to testify in certain sex related ca...

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  • State v. Mauro, 6329
    • United States
    • Supreme Court of Arizona
    • February 25, 1986 unavailable when a spouse kills a child of the marriage. State v. Ulin, 113 Ariz. 141, 145, 548 P.2d 19, 23 (1976); State v. Figueroa, 122 Ariz. 190, 192, 593 P.2d 940, 942 (App.1979). Evidence was presented at trial revealing that both spouses engaged in acts of child abuse; however, on......

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