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Phoenix City Prosecutor v. Lowery

Supreme Court of Arizona

December 3, 2018

Phoenix City Prosecutor, Petitioner/Appellant,
v.
The Honorable Laura Lowery, Respondent Judge, Claudette Craig, Respondent/Real Party in Interest.

          Special Action from the City of Phoenix Municipal Court The Honorable Laura Lowery No. 100050574

          Appeal from the Superior Court in Maricopa County The Honorable Michael D. Gordon, Judge No. LC2016-000472

         Opinion of the Court of Appeals, Division One 244 Ariz. 308 (App. 2018)

          Amy B. Offenberg (argued), Assistant Phoenix City Prosecutor, Phoenix, Attorney for Phoenix City Prosecutor

          Tracey Westerhausen, Lawrence I. Kazan, Gregory M. Zamora (argued), Debus, Kazan & Westerhausen, Ltd., Phoenix, Attorneys for Claudette Craig

          Bruce Washburn, Scottsdale City Attorney, Ken Flint, Assistant City Prosecutor, Scottsdale, Attorneys for Amicus Curiae City of Scottsdale

          Mikel Steinfeld (argued), Maricopa County Public Defender's Office, Phoenix, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice

          JUSTICE GOULD authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES PELANDER, TIMMER, BOLICK, and LOPEZ and JUDGE EPPICH [*] joined.

          OPINION

          GOULD JUSTICE.

         ¶1 In this case, we address the crime exception to the anti-marital fact privilege. A.R.S. § 13-4062(1). We hold that when a defendant commits a crime against his or her spouse and is charged for that crime, the crime exception to the anti-marital fact privilege allows the witness-spouse to testify regarding not only that charge, but also any charges arising from the same unitary event.

         I.

         ¶2 The City of Phoenix ("the City") alleges that H.C., the husband of Real Party in Interest Claudette Craig, called the police to report that Craig had been drinking and was attempting to leave their residence. H.C. tried to prevent Craig from driving by parking one of their cars behind her mini-van. Craig backed into the parked car, damaging both vehicles, which were jointly-owned by H.C. and Craig. Craig was charged with one count of criminal damage, a domestic violence offense under A.R.S. §§ 13-1602 and -3601(A), and three counts of driving under the influence ("DUI") under A.R.S. §§ 28-1381(A)(1) ("impaired to the slightest degree"), -1381(A)(2) (blood "alcohol concentration of 0.08 or more"), and -1382(A)(1) ("extreme influence of intoxicating liquor").

         ¶3 Before trial, Craig moved to preclude H.C. from testifying about the DUI charges and to sever those charges from the criminal damage charge. Both motions were based on Craig's invocation of the anti-marital fact privilege. The municipal court granted Craig's motions.

         ¶4 The City petitioned the superior court for special action relief, arguing that H.C. could testify about the DUI charges based on the crime exception to the anti-marital fact privilege. See ยง 13-4062(1). The superior court accepted review but denied relief. The court of appeals affirmed, holding that severance was proper because the anti-marital fact privilege precluded H.C. from ...


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