State of Arizona v. Hon. Fink

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Petitioner,

v.

HON. THOMAS FINK, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF SANTA CRUZ,
Respondent,

and

GEORGE ALAN KELLY,
Real Party in Interest.

No. 2 CA-SA 2023-0071
Filed November 7, 2023

Special Action Proceeding
Santa Cruz County Cause No. S1200CR202300026

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

George E. Silva, Santa Cruz County Attorney
By Kimberly J. Hunley, Chief Deputy County Attorney, Nogales
Counsel for Petitioner

Brenna Larkin, Tumacacori
Counsel for Real Party in Interest

Brian M. McIntyre, Cochise County Attorney
By Michael A. Powell, Deputy County Attorney, Bisbee
Counsel for Amicus Curiae
 STATE v. HON. FINK
Opinion of the Court

OPINION

Vice Chief Judge Staring authored the opinion of the Court, in which
Judge Sklar and Judge O’Neil concurred.

S T A R I N G, Vice Chief Judge:

¶1 The state seeks special action review of the respondent
judge’s determination that the exception to the anti-marital fact privilege
under A.R.S. § 13-4062(1)(a) ends upon a defendant’s arrest. Under the
respondent’s interpretation, the privilege could be reasserted post-arrest,
notwithstanding the fact the testifying spouse has made a voluntary
statement to an investigating law enforcement officer.1 Because the state
has no remedy by appeal and the issue presented involves potentially
privileged information, we accept special action jurisdiction. See Ariz. R. P.
Spec. Act. 1(a); Arpaio v. Figueroa, 229 Ariz. 444, ¶ 5 (App. 2012). And
because the respondent erroneously drew a distinction not contained in the
statute by determining the anti-marital fact privilege can be reasserted after
arrest, we grant relief.

Factual and Procedural Background

¶2 On January 30, 2023, real party in interest, George Kelly,
allegedly fired his rifle at a purported group of migrants on his ranch,
killing one of them. The state charged Kelly with second-degree murder
and aggravated assault.

¶3 Later that day, Santa Cruz County Sheriff’s Office detectives
investigating the shooting interviewed Kelly’s wife, Wanda. Among other
things, she told the detectives that she and her husband had seen people
with backpacks and guns on their property that day, that Kelly had told her
to be quiet and had gone outside after seeing the people, that she had
hidden in the house, that Kelly had “usually” fired warning shots when
people were on the property in similar circumstances, and that she had
heard at least one shot earlier that day. When detectives informed Wanda

1The state also asserts the respondent judge erred by precluding text

messages sent and received by the defendant. We address that issue in a
separate memorandum decision. See Ariz. R. Sup. Ct. 111(h).

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Opinion of the Court

a dead body with a gunshot wound had been found on the property, she
stated: “Well, if you knew the things that been goin’ on out there, you
would have—you wouldn’t be waitin’ around.”

¶4 Wanda later appeared for a deposition and answered
questions about what she had seen and heard on January 30. She testified
about some statements Kelly had made but refused to answer questions
about what Kelly had later told her about what happened on the day of the
incident. Kelly’s counsel objected to the questions, asserting the couple’s
conversations were privileged.

¶5 The state then requested the respondent judge rule that the
anti-marital fact privilege did not apply and that, in any event, Wanda had
waived any marital privilege by testifying about some of Kelly’s statements
but not others. The respondent declined to reach the latter question,
limiting his analysis to the applicability of the anti-marital fact privilege.
He concluded that the privilege did not apply to any pre-arrest
conversations between Wanda and Kelly because she had voluntarily
discussed the incident with law enforcement officers. He also concluded
that any post-arrest conversations remained privileged. Acknowledging he
was not aware of any authority drawing the same distinction, he reasoned
that, once a defendant has been “arrested and charged,” the defendant’s
“5th and 6th Amendment [r]ights apply,” thus “terminat[ing] the scope of
the exception of the marital privilege.” This petition for special action
followed.2

Discussion

¶6 The anti-marital fact privilege generally prohibits spousal
testimony in criminal cases without the defendant’s consent about events
or communication occurring during the marriage. § 13-4062(1). We review
issues of statutory interpretation de novo. State v. Hernandez, 246 Ariz. 407,
¶¶ 8 (App. 2019). “When the statute’s plain language is clear, we will not
resort to other methods of statutory interpretation, ‘such as the context of
the statute, its historical background, its effects and consequences, and the
spirit and purpose of the law.’” Id. ¶ 12 (quoting State v. Gray, 227 Ariz. 424,
¶ 5 (App. 2011)). Relevant here, the privilege does not apply when the
defendant is accused of certain crimes, including second-degree murder,

2It was unclear from the record whether the state was seeking
communications Kelly had with his attorney. At oral argument, however,
the state informed us it is not seeking any attorney-client communication.

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Opinion of the Court

with which Kelly has been charged, if the testifying spouse made “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.” § 13-4062(1)(a); A.R.S. § 13-706(F)(1)(b).

¶7 The state contends the respondent judge erred by concluding
the privilege applied to post-arrest conversations despite Wanda’s
voluntary statements to the detectives. We agree. The statutory language
is unambiguous—once Wanda made the statements about the events of
January 30, the marital privilege no longer applied to “events occurring
during the marriage” or “communication[s] made by one to the other
during the marriage.” § 13-4062(1)(a). The statute does not contemplate
that the privilege may again become applicable based on later events,
including a defendant’s arrest. To the contrary, the statute expressly
provides that the privilege does not apply, and a spouse may thus be called
to testify “in a prosecution,” based on a statement to law enforcement made
“during an investigation.” Id. And, like the respondent judge, we are not
aware of any authority supporting the conclusion that Kelly’s constitutional
rights expand the spousal privilege beyond its statutory limits. The anti-
marital fact privilege is statutory and does not implicate any constitutional
right. See State v. Watkins, 126 Ariz. 293, 298 (1980).

¶8 Kelly nonetheless asserts § 13-4062(1)(a) is ambiguous
because it “does not define the limit of the examination . . . that is
permitted” and “is silent on the question of when the privilege comes
back.” Because of this purported ambiguity, he reasons, we must apply the
rule of lenity and interpret the statute favorably to him. However, even
assuming the rule of lenity applies to Arizona criminal statutes, see A.R.S.
§ 13-104, it does not aid Kelly in this instance.

¶9 A statute is ambiguous when a court can reasonably interpret
it in more than one way. Glazer v. State, 244 Ariz. 612, ¶ 12 (2018). That is
not the case here, and, absent ambiguity, the rule of lenity does not apply.
We apply that rule only when a statute is ambiguous and all other methods
of statutory construction have failed. State v. Bon, 236 Ariz. 249, ¶ 13 (App.
2014). The mere fact a statute is silent as to a particular scenario neither
makes it ambiguous nor permits us to read provisions into it. See Patches v.
Indus. Comm’n, 220 Ariz. 179, ¶ 10 (App. 2009); City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965) (“[A] court will not inflate, expand, stretch or extend
a statute to matters not falling within its expressed provisions.”). That § 13-
4062(1)(a) does not limit the scope of an examination or provide for

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Opinion of the Court

reinstatement of the privilege, therefore, does not allow us to create those
limits ourselves.

Disposition

¶10 We accept jurisdiction and, because the respondent judge
erred by concluding the anti-marital fact privilege applied to Kelly’s post-
arrest conversations with Wanda, we grant relief. We vacate the
respondent judge’s order denying the state’s motion to complete Wanda’s
deposition.

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