State v. Carver ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee
v.
LARRY LLOYD CARVER, Appellant.
No. 1 CA-CR 13-0074
FILED 03/11/2014
Appeal from the Superior Court in Maricopa County
No. 2011-007932-001
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Legal Advocate’s Office, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant
STATE v. CARVER
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.
B R O W N, Judge:
¶1 Larry Lloyd Carver appeals his convictions and sentences
for first-degree murder, burglary in the first degree, aggravated assault,
and attempted first-degree murder. For the reasons that follow, we
affirm.
¶2 In December 2006, police officers found H.Q. dead and R.W.
seriously injured from gunshot wounds. State v. Carver, 227 Ariz. 438, 439,
¶ 2, 258 P.3d 256, 257 (App. 2011). The officers arrested Carver after his
wife, Cheryl, told them that Carver made incriminating statements to her
during their marriage that implicated him in the crimes. Id.
¶3 Shortly before Carver’s trial, Cheryl invoked the marital
communications privilege and refused to testify about Carver’s alleged
statements to her. Id. at 440, ¶ 3, 258 P.3d at 258. At the time Cheryl
invoked the marital privilege, Arizona Revised Statutes (“A.R.S.”) section
13-4062 “provided, in pertinent part, that ‘[e]ither spouse, at his or her
request, but not otherwise, may be examined as a witness for or against
the other in a prosecution[.]’” Carver, 227 Ariz. at 440, ¶ 3 n. 1, 258 P.3d at
258 n.1. The State dismissed its case against Carver without prejudice. Id.
¶4 After the dismissal, the legislature amended A.R.S. § 13-
4062, which now reads as follows:
A person shall not be examined as a witness in the following
cases:
1. 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, nor can either, during
the marriage or afterwards, without consent of the other, be
examined as to any communication made by one to the other
during the marriage. . . . Either spouse may be examined as a
witness for or against the other in a prosecution for an
2
STATE v. CARVER
Decision of the Court
offense listed in § 13–706, subsection F, paragraph 1, . . . if
either of the following occurs:
(a) Before testifying, the testifying spouse makes 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.
(b) Either spouse requests to testify.
(Emphasis added). 1
¶5 In December 2009, the State re-filed the murder, burglary,
and aggravated assault charges against Carver. Carver, 227 Ariz. at 440, ¶
6, 258 P.3d at 258. Carver moved to preclude the State from compelling
Cheryl’s testimony, arguing the 2009 amendment could not be applied
retroactively to communications he made during their marriage and
before the amendment. Id. The trial court granted the motion and the
State, after dismissing the case without prejudice, filed an appeal. Id.
¶6 Addressing the 2009 amendment, we held that “the law in
effect at the time the evidence is sought by discovery or trial testimony,
not the time the offense was committed or communications made, governs
the admission of testimony subject to the marital communications
privilege.” Id. at 442, ¶ 14, 258 P.3d at 260. Accordingly, because the
amendment “became effective before Carver’s retrial,” the State could
compel Cheryl to testify against Carver. Id. We also concluded that the
amendment is procedural, not substantive, in nature and “therefore does
not need express legislative statements that it is to be applied
retroactively.” Id. at 445, ¶ 30, 258 P.3d at 263.
¶7 Following the issuance of our opinion, the State filed a new
indictment against Carver, alleging first-degree murder, burglary,
aggravated assault, and attempted first-degree murder. After a twelve-
day trial, the jury found Carver guilty on all counts. The trial court
sentenced Carver to a term of natural life on the count of first-degree
murder and a total sentence of twenty-one years on the remaining counts,
1 The exception currently found in (1)(b) existed prior to the
amendment. The 2009 amendment added what is now exception 1(a) and
moved the reference to a spouse requesting to testify to exception 1(b).
3
STATE v. CARVER
Decision of the Court
to be served consecutive to the natural life sentence. Carver timely
appealed.
¶8 Carver argues the trial court erred by permitting the State to
compel Cheryl’s trial testimony because the 2009 legislative amendment to
A.R.S. § 13-4062 should not have been applied to his case. This issue,
however, was squarely addressed in our prior opinion. Carver, 227 Ariz.
at 442, ¶ 14, 258 P.3d at 260. Carver had the opportunity to challenge that
opinion by filing a petition for review with the supreme court, which he
did not do. This court’s ruling therefore became the law of the case. See
Ariz. R. Crim. P. 16.1(d) (“Except for good cause, or as otherwise provided
by these rules, an issue previously determined by the court shall not be
reconsidered.”); see also State v. King, 180 Ariz. 268, 278, 883 P.2d 1024,
1034 (1994) (explaining that an appellate decision “is the law of that case
on the points presented throughout all the subsequent proceedings”)
(internal quotation omitted). Carver has not identified any facts or issues
that have substantially changed since issuance of our opinion addressing
the State’s appeal. Because Carver’s argument is barred by the law of the
case doctrine, we affirm his convictions and sentences.
:gsh
4