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Appeals court rules wife can be forced to testify against husband

One man is serving a life sentence for fatally shooting 21-year-old Heather Quan on Dec. 23, 2006.

Prosecutors have had a more difficult time bringing the shooter’s father and alleged accomplice, Larry Lloyd Carver, 59, to trial for Quan’s death.

The problem for prosecutors has been Carver’s ex-wife, Cheryl, who went to police when they were still married and provided information about the crime, including details of a confession Carver made to her. However, a few months later, she invoked marital privilege, which allowed her to refuse to testify and led to the dismissal of charges against him.

The case spawned Heather’s Law, HB1254 (Laws 2009, Chapter 155), which provides an exception to the privilege if one spouse voluntarily provides cops with information about the other spouse’s involvement in a serious crime.

The Maricopa County Attorney’s Office charged Carver again in 2009, but Maricopa County Superior Court Judge Robert Gottsfield ruled that the wife couldn’t be compelled to testify about communications made during the marriage and before the law’s enactment.

On June 28, the Arizona Court of Appeals reversed that ruling and sent the case back to Gottsfield.

According to the Court of Appeals ruling, Gottsfield concluded that the amendment to the marital communications privilege was substantive and required the Legislature to expressly state that it was retroactive.

The appellate court said that previous cases have determined substantive law as when the function of the statute is to increase the burden of proof, change the elements of the offense, criminalize conduct that wasn’t criminal before or increase the punishment.

The appellate court said that the amendment became effective before new charges were filed against Carver in 2010, which was good enough to overturn Gottsfield.

But the higher court also said the law isn’t substantive, only procedural, and didn’t require the Legislature’s express declaration of retroactivity. Procedural law is defined precedent as having “no effect on the underlying offense or the resulting punishment for that offense.”

“The amendment here merely allows testimony that was previously excluded and this is not substantive,” Judge Donn Kessler wrote for the unanimous three-judge panel.

According to court documents and Senate testimony of Terry DenDulk, Quan’s mother, the young woman went to the home of Ryan Waller on Dec. 23, 2006, to watch a movie and eat pizza.

Waller and Richie Carver, 28, were former roommates and had some armed confrontations with each other in the month before the shooting and after Waller had kicked him out of the house.

Richie and Larry Carver forced their way into the house at 3039 W. Glenn Drive and Waller was shot in the eye with a .22 caliber handgun.

The gunman proceeded to shoot Quan point-blank in the head as she lay on the couch.

The victims’ families sent Phoenix police to the house for a welfare check after the pair missed Christmas. Police found Waller still alive and Quan dead.

Waller, who is now blind and suffers seizures, was able to tell police the Carvers committed the crime.

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