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Phoenix City Prosecutor v. Lowery

Court of Appeals of Arizona, First Division

March 13, 2018

PHOENIX CITY PROSECUTOR, Petitioner/Appellant,
THE HONORABLE LAURA LOWERY, Respondent Judge, CLAUDETTE CRAIG, Respondent/Real Party in Interest.

         Appeal from the Superior Court in Maricopa County No. LC 2016-000472-001 The Honorable Michael D. Gordon, Judge

          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.


          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.


         ¶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]


         ¶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 (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 (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 (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 (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 (1975). We review the interpretation and application of statutes de novo. See State v. Boyston, 231 Ariz. 539, 543, ¶ 14 (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. 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 (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; see also State v. Watkins,126 Ariz. 293, ...

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