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Arredondo v. State (1/12/2018) ap-2581

Arredondo v. State (1/12/2018) ap-2581

                                                                                         NOTICE
  

               The text           of   this opinion can be corrected before the opinion is published in the                                          

               Pacific Reporter                  .   Readers are encouraged to bring typographical or other formal                                           

               errors to the attention of the Clerk of the Appellate Courts:    



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                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                 



AARON  L.  ARREDONDO,  

                                                                                                                                                                   

                                                                                                                   Court of Appeals No. A-11380  

                                                                                                                                                                                   

                                                             Appellant,                                         Trial Court No. 3AN-11-3873 CR  



                                             v.  

                                                                                                                                  O   P   I   N   I   O   N  

STATE  OF  ALASKA,  



                                                             Appellee.                                              No.  2581  -  January   12,  2018  



                              A                                                                                                                    

                                  ppeal   from   the   Superior   Court,  Third  Judicial   District,  

                                                                                            

                              Anchorage, Gregory Miller, Judge.  



                                                                                                                                                 

                              Appearances:   Callie Patton Kim,  Assistant Public Defender,  

                                                                                                                                                               

                              and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                                                                                                                                                    

                              Appellant.   Terisia K. Chleborad, Assistant Attorney General,  

                                                                                                                                                   

                              Office of Criminal Appeals, Anchorage, and Craig W. Richards,  

                                                                                                                             

                              Attorney General, Juneau, for the Appellee.  



                                                                                                                                                   

                              Before:  Mannheimer, Chief Judge, and Allard, Judge.  



                                             

                              Judge MANNHEIMER.  



                              Aaron L. Arredondo appeals his conviction for felony                                                                           driving under the                



influence.    Arredondo's wife Jackie refused to                                                               testify at his trial.                       (She invoked her                  



spousal immunity privilege under Alaska Evidence Rule 505(a).)                                                                                        But the State called             



Jackie's mother (Arredondo's mother-in-law) to testify about a                                                                                     conversation she had                     


----------------------- Page 2-----------------------

                                                                                                                      

with Jackie on the night of this incident.                       During this conversation with her mother,  



                                                                                                                   

Jackie described a statement that Arredondo had made to her - a statement suggesting  



                                                     

that Arredondo had been driving.  



                                                                                                                             

                    Arredondo's attorney objected that Jackie's mother's testimony on this  



                                                                                                                        

subject was (1) inadmissible hearsay and,  in any event,  (2) protected by the marital  



                                                                                                                          

communications privilege codified in Alaska Evidence Rule 505(b).                                          The trial judge  



                                                                                                                 

overruled these objections and allowed the State to present this testimony.  



                                                                                                                              

                    On appeal, Arredondo renews his objections to this testimony - but for the  



                                                                                                                     

reasons explained in this opinion, we uphold the trial judge's rulings and we therefore  



                                                

affirm Arredondo's conviction.  



                             

          Underlying facts  



                                                                                                                          

                    In the early morning hours of April 3, 2011, the Anchorage police found  



                                                                                                                         

Arredondo's  truck  resting  on  a  steep  embankment  below  the  freeway  exit  where  



                                                                                                                  

Muldoon Road meets the Glenn Highway.                                Soon after,  the police found Arredondo  



                                                                                                                                    

walking  alone;  he  had  keys  to  the  vehicle  in  his  pocket,  and  he  was  intoxicated.  



                                                                                                                            

However, Arredondo told the police that the keys in his pocket were not the only keys  



                                                                                                                               

to his truck.         He  stated that he kept a spare set of keys in the vehicle itself, and he  



                                                                                       

declared that someone else had been driving the vehicle.  



                                                                                                                   

                    The primary question litigated at Arredondo's trial was whether Arredondo  



                                                                                                                          

was the person who was driving his truck when it skidded off the freeway exit and down  



                                                                                                                

the embankment - or whether (as Arredondo's attorney argued) it was Arredondo's  



                                                              

wife Jackie who was driving the truck.  



                                                              - 2 -                                                         2581
  


----------------------- Page 3-----------------------

                                                                                                                 

                    In fact, this was the primary question litigated at all three of Arredondo's  



                                                                                                                              

trials for this offense.  Arredondo's first two trials ended in mistrials when the jury was  



                                         

unable to reach a verdict.  



                                                                                                                               

                    At the third trial, to bolster its case that Arredondo had been driving the  



                                                                                                                                  

truck, the State called Arredondo's mother-in-law, Annette McDole, to testify about a  



                                                                                                       

conversation she had with her daughter Jackie (Arredondo's wife).  



                                                                                                                             

                    At the time of these events, Arredondo and Jackie were separated,  and  



                                                                                                                            

Jackie was staying at McDole's house.  According to McDole's testimony, Jackie woke  



                                                                                                                           

up McDole in the early morning hours and reported that Arredondo had just been inside  



                                                                                                                     

the house.  Jackie told McDole that she had awakened to find Arredondo in her bedroom,  



                                                                                                                            

and  that  Arredondo  said  that  he  needed  her  help  -  but  in  response,  Jackie  told  



                                                

Arredondo to leave the house.  



                                                                                                                               

                    (As Arredondo correctly notes in his brief, when the prosecutor made his  



                                                                                                                            

offer of proof concerning McDole's testimony, he made broader assertions about what  



                                                                                                                        

Arredondo told Jackie.  According to the prosecutor's offer of proof, Jackie told McDole  



                                                                                                                            

that Arredondo asked for her help because he had "wrecked the truck".  And later, when  



                                                                                                                       

McDole gave foundational testimony during voir dire examination outside the presence  



                                                                                                                               

of the jury, McDole said that Jackie reported that Arredondo asked for help "with his  



                                                                                                                 

vehicle".  But when McDole actually testified in front of the jury about her conversation  



                                                                                                                               

with Jackie, she never asserted that Arredondo had said anything about wrecking the  



                                                                                                                           

truck,  or about needing help with his vehicle - only about needing help  for  some  



                                   

unspecified purpose.)  



                                                                                                                        

                    Soon after Jackie had this conversation with her mother, a friend of Jackie's  



                                                                                                                    

arrived at the house.   (Apparently, Jackie had already called this friend for assistance  



                                                                                                                                

before she woke her  mother up.)  Jackie, McDole, and Jackie's friend then drove to  



                                                              - 3 -                                                          2581
  


----------------------- Page 4-----------------------

                                                                                                                         

where Arredondo's truck was resting beside the highway - but the police were already  



                                                  

in the process of impounding it.  



                                                                                                                          

                    Arredondo's attorney objected to McDole's testimony about what Jackie  



                                                                                                                     

said during their conversation.   The defense attorney argued that McDole's testimony  



                                                                                                                            

was  inadmissible hearsay to the extent that it was offered to prove the truth of what  



                                                                                                                                

Jackie said.   The defense attorney also argued  that  whatever Arredondo had said to  



                                                                                                                         

Jackie  was  protected  by  the  marital  communications  privilege  codified  in  Alaska  



                                    

Evidence Rule 505(b).  



                                                                                                                                 

                    The trial judge overruled both of these objections and allowed  McDole to  



                                                                                                                    

testify about her conversation with Jackie - including Jackie's statement that Arredondo  



                                                                                                                         

had asked for her help (although the subject of this help remained unspecified).  



                                                                                                                             

                    The jury convicted Arredondo of driving under the influence, and he now  



              

appeals.  



                                                                               

          Arredondo's hearsay objection to McDole's testimony  



                                                                                                                              

                    McDole's testimony was double hearsay:  it was offered to prove (1) that  



                                                                                                                              

Jackie  had,  in fact, had the prior conversation with Arredondo (the conversation she  



                                                                                                                          

related to her mother), and (2) that Arredondo had, in fact, asked Jackie for help during  



                            

this conversation.  



                                                                                                                              

                    When this hearsay issue was litigated in the trial court, the judge found that  



                                                                                                                                 

McDole's testimony was not barred by the hearsay rule because Jackie's statements to  



                                                                                                                             

McDole fell within the exception for excited utterances codified in Alaska Evidence Rule  



                                                                                                                          

803(2).        More  specifically,  the  judge  found  that,  at  the  time  of  Jackie's  initial  



                                                                                                                             

conversation  with  McDole,  Jackie  had  just  experienced  a  "startling event"  -  i.e.,  



                                                                                                                           

Arredondo's early-hour intrusion into her bedroom - and that Jackie "was still under  



                                                              - 4 -                                                          2581
  


----------------------- Page 5-----------------------

                                                                                                                               

the stress" of this event when she woke her mother and told her what had happened.  We  



                                                                                        

conclude that the record supports the trial judge's ruling.  



                                                                                                                              

                    When  hearsay  is  offered  under  the  excited  utterance  exception,  "the  



                                                                                                                               

ultimate  question  is  whether  the  proponent  of  the  evidence  has  shown  that  the  



                                                                                                                           

circumstances  surrounding the  utterance  produced  a  condition  of  excitement  which  



                                                                                                                                 

temporarily stilled the speaker's capacity of reflection and produced utterances free of  



                                                                                                                              

conscious fabrication."  Sipary v. State, 91 P.3d 296, 305-06 (Alaska App. 2004).  This  



                                                                                                                           

is a question of fact, and we will uphold the trial judge's conclusion on this issue unless  



                                                                                     

that conclusion is shown to be clearly erroneous.  Ibid.  



                                                                                                                                

                    As  we  have  explained,   McDole's  daughter   Jackie  was  married  to  



                                                                                                                                  

Arredondo at the time of this incident, but they were separated, and Jackie was living in  



                                                                                                                           

McDole's house.  According to McDole's testimony, Jackie awakened her in the middle  



                                                                           

of the night by shaking her and saying, "Mom".  



                                                                                                                                 

                    Duringher voir dire testimony, McDole described Jackie's demeanor at the  



                                                                                                                               

time as "startled" and "a little shocked".  When McDole was asked whether Jackie was  



                                                                                                                             

crying or angry, McDole answered, "She was just startled.                                   ...  I think [she was] more  



                                        

shocked than anything."  



                                                                                                                        

                    When Arredondo's attorney cross-examined McDole outside the presence  



                                                                                                                              

of the jury, he asked McDole a series of questions about Jackie's mental state at the time  



                                                                                                                              

of  their conversation.   But rather than challenge McDole's assertion that Jackie  was  



                                                                                                                              

"startled" and "shocked",  the defense attorney only asked McDole to confirm  that  



                                                                                                                 

Jackie's  emotional  reaction  was  mainly  in  response  to  Arredondo's   unexpected  



                                                                                                                            

appearance in her bedroom - and not in response to his request for help with his truck:  



                      

                                                                                                          

                              Defense Attorney :              Isn't it true that if [Jackie] was  

                                                                                                              

                     startled about anything, it was that Aaron [Arredondo] was in  

                           

                    the home?  



                                                               - 5 -                                                          2581
  


----------------------- Page 6-----------------------

                                                                                                          

                              McDole :  Yeah, it's a little startling to  wake up and  

                                                                                                           

                    find someone that shouldn't be there, standing over you.  



                                                                                                          

                              Defense Attorney :  But ... really, [Jackie's] focus was  

                                                                                                          

                    that  he  was in the house,  correct?   ...                     The focus of her  

                                                                                                           

                    waking you up was to let you know that  Aaron was in the  

                                                                         

                    house, and she wanted him out of there?  



                                              

                              McDole :  Right.  



                                                                                                                             

Thus,  the  defense  attorney  did  not  challenge  McDole's  assertion  that  Jackie  was  



                                                                                         

"startled" and "shocked" when she made the statements.  



                                                                                                                           

                    Based  on  this  record,  we  conclude  that  the  trial judge's  finding about  



                                                                                                                               

Jackie's mental state (i.e., Jackie's mental state at the time of her conversation with her  



                                                                                                                       

mother) is not clearly erroneous.   We therefore affirm the judge's ruling that Jackie's  



                                                                                                  

statements to her mother were admissible as excited utterances.  



                                                                                                                         

                    (Because we reach this conclusion, we need not address the trial judge's  



                                                                                                                             

other two rationales for finding that McDole's testimony was admissible hearsay.)  



                                                                                                             

          Arredondo's  argument  that  McDole's  testimony  violated  the  marital  

                                     

          communications privilege  



                                                                                                                               

                    Arredondo  argues that even if McDole's testimony did not violate the  



                                                                                                           

hearsay rule, her testimony nevertheless violated Arredondo's marital communications  



                                                                                                       

privilege - the privilege codified in Alaska Evidence Rule 505(b).  



                                                                                                                      

                    Alaska Evidence Rule 505 encompasses two distinct evidentiary privileges  



                                                                                                                       

that apply to married couples.  Subsection (a) defines the "spousal immunity" privilege  



                                                                                                                               

- the right of one spouse to refuse to take the stand in a legal proceeding involving the  



                                                              - 6 -                                                          2581
  


----------------------- Page 7-----------------------

other spouse.                This privilege belongs solely                              to   the   spouse who is being called as a                                  



                                                          1  

witness, not the other spouse.                                



                          As we explained at the beginning of this opinion, Jackie Arredondo invoked  

                                                                                                                                                        



the spousal immunity privilege and refused to testify at Arredondo's trial.  

                                                                                                                                              



                          Subsection (b) of Evidence Rule 505 defines a separate and distinct eviden- 

                                                                                                                                                         



tiary privilege - the "marital communications" privilege.   This privilege does not give  

                                                                                                                                                               



spouses the right to refuse to take the stand, but it does give spouses the right to refuse  

                                                                                                                                                           



to answer any questions about confidential communications they had with their other  

                                                                                                                                                            



spouse during the marriage - and the right to prevent their spouse from answering such  

                                                                                                                                                              



questions, even if their spouse would otherwise be willing to answer.  

                                                                                                                                      



                          The general rule of privilege is stated in Evidence Rule 505(b)(1):  

                                                                                                                                    



                            

                                      Neither during the marriage nor afterwards shall either  

                                                                                                                                   

                          spouse be examined as to any confidential communications  

                                                                                                              

                          made by one spouse to the other during the marriage, without  

                                                                                                                               

                          the consent of the other spouse.  

                                                                         



                          As  can  be  seen  from  the  final  clause  of  this  definition,  the  marital  

                                                                                                                                                        



communications privilege  belongs to both spouses - both the spouse who is being  

                                                                                                                                                            



examined as a witness and the other spouse.  Thus, one spouse can effectively veto the  

                                                                                                                                                                 



other spouse's willingness to testify about their confidential communications.  

                                                                                                                                                    



                          Arredondo argues that  he was entitled to invoke the marital communi- 

                                                                                                                                                   



cations privilege to prevent his mother-in-law, Annette McDole, from testifying about  

                                                                                                                                                            



her   conversation  with  her   daughter   Jackie  -  specifically,   the  portion  of   that  

                                                                                                                                                              



       1     The general rule of privilege is stated in Evidence Rule 505(a)(1):                                                        "A husband shall       



not be examined for or against his                                wife, without his consent, nor a wife for or against her                                       

husband, without her consent."                           



                                                                               - 7 -                                                                          2581
  


----------------------- Page 8-----------------------

                                                                                                                                 

conversation in which Jackie informed McDole about  Arredondo's statement that he  



                                   

needed Jackie's help.  



                                                                                                                              

                    At first blush, Evidence Rule 505(b) seemingly does not apply to the facts  



                                                                                                                               

of Arredondo's case.  The rule declares that a "spouse [shall not] be examined" as to any  



                                                                                                                             

confidential communication between them and their spouse.  But in Arredondo's case,  



                                                                                                                                      

Jackie  was  not  examined  regarding  any  communication  she  had  with  Arredondo.  



                                                                                                                      

Indeed,  Jackie  refused  to  take  the  stand  at  all (by  invoking her  spousal immunity  



                                                                                                                           

privilege).   The evidence in question was elicited, not through the testimony of Jackie  



                                                                                                                       

Arredondo, but rather through the testimony of her mother, Annette McDole.  



                                                                                                                               

                     Several of the more recent appellate decisions in this area have held that  



                                                                                                                      

statutes worded like our Evidence Rule 505(b)(1) apply only when a spouse is examined  



                                                                                                                         

about confidential marital communications - and that "the privilege does not prevent  



                                                                                                                             

another  person  from  testifying  to  [these]  statements",   nor  does  it  prevent  "the  



                                                                                                                                  

introduction of documents containing references to such communications."  Kenneth S.  



                                                                                                                             

Broun et alia, McCormick on Evidence (7th ed. 2013),  82, Vol. 1, pp. 513-14.  



                                                                                                                           

                    See Kidd v.  State,  955 S.W.2d 505 (Ark.  1997) (holding that a police  



                                                                                                                          

detective could testify about the defendant's wife's statement to the detective); People  



                                                                                                                           

v. Fisher, 503 N.W.2d 50, 56-57 (Mich. 1993) (upholding the admission of the wife's  



                                                                                                                           

statement contained in a pre-sentence report); State v. Clark, 570 N.W.2d 195 (N.D.  



                                                                                                                        

1997) (allowing evidence of the wife's statements to a police officer); State v. Lindley,  



                                                                                                                         

502 P.2d 390, 391-92 (Or. App. 1972) (same:  wife's statements to a deputy sheriff)  



                                                                                                                               

(relying on the Oregon Supreme Court's decision in State v. Wilkins, 142 P. 589, 590  



                                                                                                                      

(Or.  1914));  State  v.  Bonaparte,  660  P.2d  334,  336  (Wash.  App.  1983)  (allowing  



                                                                                  

evidence of the wife's statements to a third person).  



                                                                                                                                

                    Although these decisions are based on statutes or rules that are worded like  



                                                                                                                              

our Evidence Rule 505(b)(1), we also note that Alaska has a separate rule, Evidence Rule  



                                                               - 8 -                                                          2581
  


----------------------- Page 9-----------------------

                                                                                                                      

511,  that forbids the admission of privileged  communications if they were disclosed  



                                                                                                            

"without opportunity to claim the privilege".  With regard to the marital communications  



                                                                                                                         

privilege,  both spouses hold the privilege.   Thus, if Jackie disclosed privileged matters  



                                                                                                                             

to her mother in circumstances where Arredondo had no opportunity to object, one could  



                                                                                                                  

argue that the privilege had been breached without Arredondo's having the "opportunity  



                                    

to claim the privilege".  



                                                                                                                               

                    We say only "one could argue", because the meaning of Evidence Rule 511  



                                                                                                                                 

in this context is itself problematic.   Here, Arredondo surprised his estranged wife by  



                                                                                                                              

appearing  unannounced  (and  uninvited)  in  her  bedroom.                                    Even  if  Arredondo  had  



                                                                                                                               

remained in the house and had accompanied Jackie when she went upstairs to waken and  



                                                                                                                                

alert her mother, and even if Arredondo had been present when Jackie began telling her  



                                                                                                                    

mother about  what  Arredondo said in the bedroom, it is unclear whether Arredondo  



                                                                                                                                

could "claim  the privilege" and stop Jackie from talking to her mother, or "claim the  



                                                                                                                             

privilege" and prospectively prevent his mother-in-law from testifying later about what  



                         

Jackie told her.  



                                                                                                                          

                    We leave these matters undecided because we conclude that we can resolve  



                                                                

Arredondo's case without resolving these questions.  



                                                                                                                       

                    Arredondo  does  not  contend  that  his  marital communications  privilege  



                                                                                                                            

would prevent McDole from testifying that Jackie woke her up in the middle of the night,  



                                                                                                                                

or from testifying that Jackie reported that she had awakened to find Arredondo in her  



                                                                                                           

bedroom.          Arredondo  argues  only  that  his  assertion  of  the  marital communications  



                                                                                                                               

privilege should have barred McDole from testifying "about Jackie's statement ... that  



                                                                                  

Arredondo had asked for her help with his vehicle."  



                                                                                                                            

                    As we have already explained, McDole did not testify that Arredondo asked  



                                                                                                                  

Jackie for help "with his vehicle".   This is what McDole said during her foundational  



                                                               - 9 -                                                          2581
  


----------------------- Page 10-----------------------

                                                                                                                                

testimony outside the presence of the jury.  But when McDole testified in front of the  



                                                                                            

jury, she said only that Arredondo asked Jackie "for help".  



                                                                                                           

                     Nevertheless,  if   (as   Arredondo  argues)  the  marital  communications  



                                                                                                                             

privilege  applied  in  this  situation,  then  McDole  would  arguably  be  prohibited  from  



                                                                                                               

offering even this truncated version of Arredondo's statement to Jackie.  



                                                                                                                            

                     But we conclude that the marital communications privilege does not apply  



                                                                                           

to Arredondo's statement to Jackie about needing her help.  



                                                                                                                      

                     The marital communications privilege defined in Evidence Rule 505(b)(1)  



                                                                                                                               

applies only to confidential communications between the spouses.  Evidence Rule 505  



                                                                                                                  

itself does not contain a definition of "confidential communication", but the commentary  



                                                                                                                         

to Evidence Rule 505(b)(1) declares that this phrase "is analogous to a similar concept  



                                                                                                                     

 [defined] in [the] lawyer-client and [the] physician/psychotherapist-patient privileges"  



                                                                                                                                 

-  i.e.,  it  is  analogous  to  the  definitions  of  "confidential communication"  found  in  



                                                                                       

Evidence Rule 503(a)(5) and Evidence Rule 504(a)(4).  



                                                                                                                                   

                     Evidence Rules 503(a)(5) and 504(a)(4) both codify the principle that a  



                                                                                                                                  

communication is "confidential" only if the speaker does not intend for the statement to  



                                                                                                                          

be disclosed to persons outside the umbrella of privilege.                                  And,  indeed,  the marital  



                                                                                                                                  

communications privilege has long been construed in accordance with this principle.  



                                                                                                              

                     As McCormick on Evidence explains, even when a marital communication  



                                                                                                                                

takes place when only the two spouses are present, "a variety of factors, including the  



                                                                                                                                  

nature of the message or the circumstances under which it was delivered, may serve to  



                                                                                                                  

rebut a claim that confidentiality was intended."  Kenneth S. Broun et alia, McCormick  



                                                                                                                              

on Evidence (7th ed. 2013),  80, Vol. 1, p. 508.  Thus, for example, the privilege does  



                                                                                                                               

not apply to communications that relate to business transactions where one spouse will  



                                                                                                                             

transact the business, or will otherwise deal with third parties, as the agent of the other  



                        

spouse.  Id.  at 509-510.  



                                                              - 10 -                                                          2581
  


----------------------- Page 11-----------------------

                                                                                                                         

                     See Schmied v.  Frank,  1882 WL 6459 (Ind.  1882),  where the Indiana  



                                                                                                                               

Supreme  Court held that the privilege did not apply to a wife's testimony that  she  



                                                                                                                                   

authorized her husband to buy a commercial note as her agent.  The court noted that a  



                                                                                                                       

husband's authority to act on his wife's behalf "is not confidential, nor [is it] intended  



                                                                                                                           

to be private."  Rather, the husband's authority was "intended to be known and would  



                                                             

be worthless unless known".  Id.  at *5.  



                                                                                                                         

                    See also People v. Byrd, 525 N.W.2d 507, 509 (Mich. App. 1994) (holding  



                                                                                                                                

that  a  husband's  statements  to  his  wife,  delegating to  her  the  authority  to  sell his  



                                                                                                                     

marijuana to a third person, were not confidential, and thus not within the privilege);  



                                                                                                                         

Lurty's Curator v. Lurty, 59 S.E. 405, 407 (Va. 1907) (holding that a husband's account  



                                                                                                                                      

of the money owed to his wife from the sale of their joint property was not privileged).  



                                                                                                                  

                     In Arredondo's case, the trial judge could reasonably find that Arredondo's  



                                                                                                                                

request for his wife's help with his vehicle was not intended to stay private between the  



                                                                                                                 

two of them.  According to the testimony, the vehicle was restingon a steep embankment  



                                                                                                                               

and it could not be removed without towing equipment.  Clearly, Arredondo's wife was  



                                                                                                                                

not going to locate the truck without Arredondo's assistance, nor could she remove the  



                                                                                                                              

vehicle single-handedly.                Rather,  it was reasonable to conclude that Arredondo was  



                                                                                                                         

seeking his wife's aid in summoning and dealing with third parties who could retrieve  



                                                                                                                               

the vehicle - so that Arredondo would not have to risk self-incrimination by doing this  



               

himself.  



                                                                                                                                      

                     This conclusion is supported by the State's offer of proof in the trial court.  



                                                                                                                                 

According to the prosecutor's offer, Jackie and her mother, Annette McDole, showed up  



                                                                                                                       

at the site of the accident while the police were still there, getting ready  to impound  



                                                                                                                           

Arredondo's truck.   Jackie told the officer, "That's my truck" - and when the officer  



                                                                                                                               

asked her what she meant by that statement, Jackie told the officer that Arredondo had  



                                                     

asked for her help with his truck.  



                                                              - 11 -                                                          2581
  


----------------------- Page 12-----------------------

                                                                                                                                  

                    Given these facts, Arredondo's request for Jackie's help was essentially a  



                                                                                                                 

delegation  of  authority  in  any  dealings  with  third  parties,  and  not  a  confidential  



                                                                                                                         

communication.             For this  reason,  we uphold the trial judge's ruling that the marital  



                                                                                                                         

communications privilege did not bar McDole from testifyingabout Arredondo's request  



                            

for Jackie's help.  



                                                                                                                          

                    We  note  one  other  rationale  for  allowing  McDole  to  testify  about  



                                                                                                                               

Arredondo's statement to Jackie: at Arredondo's trial, his defense attorney wished to use  



                                                                                

the marital privilege as a sword rather than a shield.  



                                                                                                                               

                    The evidence was uncontradicted that Jackie showed up at the scene of the  



                                                                                                                       

accident while the police were conducting their investigation.                                    Arredondo's attorney  



                                                                                                                             

based his trial strategy on the  fact that there was no direct evidence concerning how  



                                                                                                                             

Jackie knew that Arredondo's truck would be at that location, or how she knew that  



                                                                                                                              

intervention was required.  Arredondo's attorney took advantage of this evidentiary gap  



                                                                                                                               

by expressly arguing to the jury that Jackie  was the one who drove the truck off the  



                                          

highway exit and down the embankment:  



                      

                                                                                                         

                              Defense  Attorney :             Jackie  operated  the  truck.  She  

                                                                                                       

                    arrived at the scene; how does she know [where the truck  

                                                                                                        

                    was]?  Because she was the one who drove the truck.  She's  

                                                                                                            

                    going through a divorce.  ...  We don't know why people do  

                                                                                                   

                    things  that they do.              ...   [But] we do know ...  ,  through  

                                                                                                           

                    Ms. McDole's testimony, [that Jackie has] knowledge of the  

                                                                                                         

                    spare keys in the truck.   She wakes up Mrs.  McDole, tells  

                                                                                                        

                     [her that] Aaron needs help, and he was in my bedroom. Then  

                                                                             

                    she takes [McDole] to the scene.  ...  



                                                                                                          

                               [Jackie] made a phone call to her friend before she  

                                                                                                        

                    woke up her mother, then they [all] go to the scene.   Now  

                                                                                                       

                    how does [Jackie] know where the truck is?  Because that's  

                                                                                                         

                    who crashed the truck  - her and her friend, Sarah.   You  

                                                                                                        

                    heard  the  911  recording,  the  woman  on  the  phone  said  



                                                             - 12 -                                                          2581
  


----------------------- Page 13-----------------------

                                                                                                 

                    "they":  "they" may have been driving under the influence;  

                                                                        

                    I saw "them" drive off the road.  



                                                                                       

                               This is why Aaron Arredondo's not guilty.  



                                                                                                                              

                    Courts  have  long  held  that  litigants  should  not  be  allowed  to  use  



                                                                                                                            

evidentiary privileges in ways that affirmatively distort the fact-finding process.   "The  



                                                                                                                         

privilege may implicitly be waived when [a] defendant asserts a claim that in fairness  



                                                                                                                              

requires examination of protected communications."  United States v. Bilzerian, 926 F.2d  



                                                                                                                              

1285, 1292 (2nd Cir. 1991); see also Clark v. United States, 289 U.S. 1, 15; 53 S.Ct. 465,  



                                                                                                                            

469; 77 L.Ed. 993 (1933) ("The privilege takes flight if the relation is abused.").  



                                                                                                                            

                    Thus,  a party waives the marital communications privilege if the party  



                                                                                                                                  

"injects a matter that, in the context of the case, creates such a need for the opponent to  



                                                                                                                                 

obtain the information allegedly protected by the privilege that it would  be unfair to  



                                                                                                                                

allow that party to assert the privilege".  State Farm Mutual Auto. Ins. Co. v. Lee, 13  



                                                                                                                            

P.3d  1169,  1178  (Ariz.  2000).                   Similarly,  a  party  waives  the  privilege  if  the  party  



                                                                                                                     

"selectively disclose[s] part of a privileged communication in order to gain an advantage  



                                                                                                         

in litigation".  S.E.C. v. Lavin, 111 F.3d 921, 933 (D.C. Cir. 1997).  



                                                                                                           

                    In  the  present  case,  Arredondo  asserted  his  marital  communications  



                                                                                                                              

privilege for the purpose of excluding evidence that would have helped to explain how  



                                                                                                                       

Jackie  came  to  know  that  Arredondo's  truck  was  sitting disabled  on  the  highway  



                                                                                                                  

embankment - thus allowing the defense attorney to argue that Jackie's unexplained  



                                                                                                                                

presence at the accident scene showed that she was the one who drove the truck off the  



                                                           

highway and down the embankment.  



                                                                                                                  

                     (The defense attorney had made this same argument at both of Arredondo's  



                                                                                                                            

earlier trials - the two trials that ended in a mistrial when the jury was unable to reach  



                 

a verdict.)  



                                                              - 13 -                                                          2581
  


----------------------- Page 14-----------------------

                                                                    Under these circumstances, even if we assume that Arredondo's marital                                                                                                                                                                                                                                                                            



communications privilege might otherwise have given him the right to prevent McDole                                                                                                                                                                                                                                                                                                                         



from testifying about                                                                                            her conversation with Jackie (to the extent that Jackie revealed                                                                                                                                                                                                                         



Arredondo's communications to her), Arredondo's litigation strategy worked a waiver                                                                                                                                                                                                                                                                                                                                  



of that privilege.                                                                 For this reason as well, we uphold the trial judge's ruling on the marital                                                                                                                                                                                                                                                        



communications privilege.                                                                                                               



                                   Conclusion  



                                                                    The judgement of the superior court is AFFIRMED.                                                                                                                                                                                                                              



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