                                IN THE

   SUPREME COURT OF THE STATE OF ARIZONA
                      PHOENIX CITY PROSECUTOR,
                         Petitioner/Appellant,

                                    V.


                   THE HONORABLE LAURA LOWERY,
                         Respondent Judge,

                          CLAUDETTE CRAIG,
                    Respondent/Real Party in Interest.

                          No. CV-18-0101-PR
                        Filed December 3, 2018

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

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

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

COUNSEL:

Amy B. Offenberg (argued), Assistant Phoenix City Prosecutor, Phoenix,
Attorney for Phoenix City Prosecutor
       PHOENIX CITY PROSECUTOR V. HON. LOWERY/CRAIG
                      Opinion of the Court

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.

JUSTICE GOULD, opinion of the Court:

¶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

* Vice Chief Justice Robert M. Brutinel has recused himself from this case.
Pursuant to article 6, section 3, of the Arizona Constitution, the Honorable
Karl C. Eppich, Judge of the Arizona Court of Appeals, Division Two, was
designated to sit in this matter.



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       PHOENIX CITY PROSECUTOR V. HON. LOWERY/CRAIG
                      Opinion of the Court

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 § 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 testifying about the DUI charges. Phx. City Prosecutor
v. Lowery, 244 Ariz. 308, 310 ¶ 1 (App. 2018).

¶5          We granted review because the scope of the anti-marital fact
privilege and the crime exception are recurring issues of statewide
importance. We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution and A.R.S. § 12-120.24.

                                      II.

¶6            We review the municipal court’s ruling on the applicability of
the anti-marital fact privilege for an abuse of discretion. See State v.
Whitaker, 112 Ariz. 537, 542 (1975); see also State v. Cooperman, 232 Ariz. 347,
349 ¶ 7 (2013). “An error of law constitutes an abuse of discretion.” State
v. Cheatham, 240 Ariz. 1, 2 ¶ 6 (2016). We interpret statutes de novo. State
v. Boyston, 231 Ariz. 539, 543 ¶ 14 (2013).

                                       A.

¶7            In Arizona, “[a] person shall not be examined as a witness” in
the case of “[a] husband for or against his wife without her consent, nor a
wife for or against her husband without his consent, as to events occurring
during the marriage.” § 13-4062(1). This testimonial privilege, known as
the anti-marital fact privilege, enables a defendant-spouse in a criminal
proceeding “to prevent the other spouse from testifying.” Blazek v. Superior
Court, 177 Ariz. 535, 538 (App. 1994). 1

1Section 13-4062(1) also contains a second privilege, referred to as the
marital communications privilege, that “protects confidential



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        PHOENIX CITY PROSECUTOR V. HON. LOWERY/CRAIG
                       Opinion of the Court

¶8            The anti-marital fact privilege, though rooted in common law,
has existed in Arizona in some statutory form since before statehood. State
v. Crow, 104 Ariz. 579, 583 (1969), overruled in part on other grounds by State v.
Burchett, 107 Ariz. 185 (1971); see also Rev. Stat. Ariz. Territory, Penal Code
§ 1111 (1901); Trammel v. United States, 445 U.S. 40, 43–45 (1980) (noting the
“ancient roots” of the anti-marital fact privilege in the early common law).
The privilege is grounded on the policy that precluding spouses from
testifying against each other promotes marital peace and harmony. Crow,
104 Ariz. at 585; see also Trammel, 445 U.S. at 44.

¶9             In practice, however, the privilege excludes relevant evidence
and presents an obstacle to the truth-seeking goal of the justice system. See
Whitaker, 112 Ariz. at 541–42 (explaining that allowing a spouse’s testimony
better promotes truth-seeking). Thus, as with other privileges, courts have
narrowly construed the privilege. Cf. Trammel, 445 U.S. at 50 (“Testimonial
exclusionary rules and privileges contravene the fundamental principle
that the public . . . has a right to every man’s evidence. As such, they must
be strictly construed.” (first alteration in original) (internal quotation marks
and citations omitted)); State v. Drury, 110 Ariz. 447, 454 (1974) (stating that
the marital communications privilege poses “an obstacle to the pursuit of
truth” and “it should be limited rather than expanded”); Indus. Comm’n v.
Superior Court, 122 Ariz. 374, 375 (1979) (holding that “statutes creating
evidentiary privileges are strictly construed”).

                                        B.

¶10             There are several exceptions to the anti-marital fact privilege.
See, e.g., § 13-4062(1) (stating that “[e]ither spouse” may “request[] to
testify” as to “bigamy or adultery, committed by either spouse, or for sexual
assault committed by the husband” or any of the serious offenses listed in
A.R.S. § 13-706(F)(1)). Here, the City claims the “crime exception” applies
to H.C.’s testimony.
                                        1.

¶11            The crime exception provides that a spouse may testify “in a
criminal action or proceeding for a crime committed by the husband against
the wife, or by the wife against the husband.” § 13-4062(1). This exception,
like the privilege itself, is a “longstanding one at common law.” Trammel,
445 U.S. at 46 n.7.

communications made between spouses while they are married.” Blazek,
177 Ariz. at 538.     Because Craig has not invoked the marital
communications privilege, we do not address it here.


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       PHOENIX CITY PROSECUTOR V. HON. LOWERY/CRAIG
                      Opinion of the Court

¶12           The crime exception, by its terms, applies to any “crime”
committed by one spouse against the other spouse. See Bilke v. State, 206
Ariz. 462, 464 ¶ 11 (2003) (stating that in construing a statute, we look to the
plain language of the statute, giving effect to every word and phrase, and
assigning to each word its plain and common meaning). It is not limited to
crimes where one spouse physically injures or threatens the other spouse.
See Crow, 104 Ariz. at 583–84 (holding that the crime exception could be
applied to crimes against a spouse’s family, and was not limited to crimes
in which a defendant physically injured the other spouse); see also Trammel,
445 U.S. at 46 n.7 (noting that the crime exception “has been expanded . . .
to include crimes against the spouse’s property . . . and in recent years
crimes against children of either spouse” (citing Herman v. United States, 220
F.2d 219, 226 (4th Cir. 1955) (property crimes), and United States v. Allery,
526 F.2d 1362 (8th Cir. 1975) (crimes against children))).

                                       2.

¶13            We have also applied the crime exception to charges arising
out of the same unitary event as the crime committed against the spouse.
For example, in Crow, the defendant’s estranged wife arrived at his home
with her family to gather her belongings. 104 Ariz. at 580–81. An argument
ensued inside the home between the defendant and his wife’s father and
brother; the defendant shot and killed them, then ran outside and
physically assaulted his wife. Id. at 581. The defendant was charged with
two counts of first-degree murder and one count of assault-with-intent-to-
murder against his wife. Id. at 580, 582. The defendant’s wife testified at
trial, and he was convicted on all three counts. Id.

¶14             On appeal, the defendant argued that allowing his wife to
testify regarding the murders violated the anti-marital fact privilege. Id. at
582. We disagreed, concluding that the crime exception encompassed not
only the assault charge, but also permitted the wife to testify about the
murder charges. Id. at 586. In reaching this conclusion we explained that
the crime exception applies when “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.” Id.
at 585; see also State v. Salazar, 146 Ariz. 547, 548, 550 (App. 1985) (holding
that the crime exception permitted a wife to testify in her husband’s trial for
vehicular manslaughter and DUI when the husband was also charged with
endangering his wife, and all the charges arose from the same course of
events).




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       PHOENIX CITY PROSECUTOR V. HON. LOWERY/CRAIG
                      Opinion of the Court

¶15            We again addressed the crime exception in Whitaker. There,
the defendant broke his estranged wife’s apartment window and fired four
shots into the building while the wife, her boyfriend, and her daughter were
home. Whitaker, 112 Ariz. at 538–39. A jury convicted the defendant of
assault with a deadly weapon. Id. at 538. On appeal, the defendant argued
that allowing his wife to testify at trial violated the anti-marital fact
privilege. Id. at 539. Rejecting that argument, we held the wife’s testimony
was permitted under the crime exception. Id. at 540–42.

¶16            In applying the crime exception in Whitaker, we used a
different test than the one used in Crow. Specifically, we relied on a New
Jersey case, State v. Briley, 251 A.2d 442 (N.J. 1969), which involved a
defendant’s “atrocious assault and battery” of his wife and murder of her
acquaintance, with “both charges growing out of a single incident.”
Whitaker, 112 Ariz. at 541. We quoted the following principles from Briley:

       If there is a single criminal event in which she and others are
       targets or victims of the husband’s criminal conduct in the
       totality of the integrated incident and formal charges are made
       against the husband for some or all the offenses committed
       (one of which charges is for an offense against the spouse), the wife
       should be a competent and compellable witness against her
       husband at the trial of all the cases regardless of whether they
       are tried separately or in one proceeding. And, in this
       connection, it should be immaterial that the offense against
       the wife does not reach the same dimensions of criminality as
       it does against the third-party victim.

       And:

       . . . [I]n view of subsection (b) of the rule, the requirement for
       a spouse’s consent mentioned in subsection (a) must be
       regarded as applicable only to a criminal proceeding in which
       the wife’s role is strictly that of a witness, as distinguished from
       that in which she is a victim or an intended victim, or one
       victim in a unitary event in which her husband is a criminal actor.

Id. at 541–42 (emphasis added) (internal citations omitted) (quoting Briley,
251 A.2d at 446, 448). Applying this rationale, we concluded that the
superior court did not abuse its discretion in allowing the defendant’s wife
to testify, noting that “Mrs. Whitaker and her child were potential victims
of defendant’s assault” and “[t]he evidence is sufficient from which the trial



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       PHOENIX CITY PROSECUTOR V. HON. LOWERY/CRAIG
                      Opinion of the Court

court could find that Mrs. Whitaker and her daughter were endangered by
the gunfire.” Id. at 542.

¶17           In sum, Whitaker holds that when a defendant commits a
crime “against” his or her spouse and is charged for that crime, the crime
exception allows the witness-spouse to testify not only regarding that
charge, but also as to any charges arising out of that same unitary event. Id.
at 539, 541–42.
                                       3.

¶18           We recognize some differences between the tests used in Crow
and Whitaker. Although Whitaker relied on Crow, it also further developed
and refined the test applied in Crow. We therefore conclude that Whitaker
sets forth the proper test that courts should follow in applying the crime
exception.

¶19           Our conclusion is supported by decisions from other
jurisdictions having an identical or nearly identical crime exception as
Arizona’s. In several of these jurisdictions, courts have applied a “unitary
event” approach similar to the test used in Whitaker. See, e.g., People v. Ford,
388 P.2d 892, 901 (Cal. 1964) (concluding that crime exception applied to
wife’s testimony where defendant kidnapped wife and shot police officer
because “the crime of kidnaping was still being committed when the
shooting occurred”), overruled in part on other grounds by People v. Satchell,
489 P.2d 1361 (Cal. 1971); People v. Vieau, 357 N.W.2d 736, 738 (Mich. Ct.
App. 1984) (relying on Briley and concluding that the crime exception
applied where defendant shot his wife and her acquaintance because the
shootings happened “at the same time” and were “part of the same
transaction,” even if the crimes were tried separately); Miller v. State, 111
N.W. 637, 638–39 (Neb. 1907) (concluding that crime exception applied
where defendant shot his wife and her parents because “the shots fired by
the defendant . . . were so closely connected in point of time as to be a part
of the res gestæ”); State v. Mowery, 438 N.E.2d 897, 900–01 (Ohio 1982)
(relying on Briley and holding that the crime exception applied where
defendant broke into home and shot estranged wife and her companion
because the crimes were “one continuous transaction or happening
culminating in offenses against two individuals” and “[t]he three offenses
were not well-defined and separate, but rather, were overlapping and
intertwined”); Brown v. Commonwealth, 292 S.E.2d 319, 323 (Va. 1982)
(relying on Briley in construing crime exception and holding that “where
one spouse is indicted for an offense against the other and an offense
against a third party, and both offenses arose from a common criminal
enterprise, the witness-spouse can testify against the defendant-spouse in


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       PHOENIX CITY PROSECUTOR V. HON. LOWERY/CRAIG
                      Opinion of the Court

the prosecution of both charges”); State v. Thompson, 564 P.2d 315, 317–18
(Wash. 1977) (following Briley and concluding that crime exception applied
in “this carefully defined situation” where during one night, defendant beat
his wife and killed her romantic partner, because there was a “logical
relationship of the crimes”), overruled on other grounds by State v. Thornton,
835 P.2d 216 (Wash. 1992).
                                       C.

¶20           As Craig concedes, H.C. may testify about the criminal
damage charge. If we assume the City’s allegations are true, Craig clearly
committed a crime “against” H.C. when she became intoxicated and
damaged their vehicles. See § 13-4062(1); see also § 13-1602(A)(1) (“A person
commits criminal damage by . . . [r]ecklessly defacing or damaging
property of another person.” (emphasis added)).

¶21           The crime exception also applies to the DUI charges. The
conduct forming the basis for both the criminal damage charge and the DUI
charges—Craig’s alleged intoxication and subsequent reckless behavior in
trying to drive the mini-van—is based on one unitary event.

                                     III.

¶22            Finally, we address whether the municipal court erred in
severing Craig’s DUI charges from the criminal damage charge. We review
a trial court’s ruling on severance for an abuse of discretion. See State v.
Murray, 184 Ariz. 9, 25 (1995); Whitaker, 112 Ariz. at 542. “An error of law
committed in reaching a discretionary conclusion may, however, constitute
an abuse of discretion.” Busso-Estopellan v. Mroz, 238 Ariz. 553, 554 ¶ 5
(2015) (quoting State v. Wall, 212 Ariz. 1, 3 ¶ 12 (2006)).

¶23           Craig conceded at oral argument that if the crime exception
applies to H.C.’s testimony regarding the DUI charges, there is no basis for
severance. We agree. Because H.C. may testify about Craig’s DUI charges,
severance is no longer “necessary to promote a fair determination of [the]
defendant’s guilt or innocence of any offense.” Ariz. R. Crim. P. 13.4(a).

                              CONCLUSION

 ¶24          We reverse the municipal court’s ruling on the anti-marital
fact privilege and remand the case to that court for further proceedings
consistent with this opinion. Additionally, we vacate the decisions of the
superior court and the court of appeals and lift the stay we previously
granted.


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