SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ex rel. RICHARD
M. ROMLEY, Maricopa County
HON. FRANK T. GALATI, JUDGE OF
SUPERIOR COURT OF THE STATE OF
ARIZONA, in and for the County of
RUSSELL K. PETERSEN,
Real Party in Interest. )
STATE OF ARIZONA,
LANCE ALLEN ROOT,
Court of Appeals
No. 1 CA-SA 98-0143
No. CR 97-08186
Court of Appeals
No. 1 CA-CR 97-0737
No. CR 96-92542
O P I N I O N
Special Action from the Superior Court of Maricopa County
Cause No. CR 97-08186
The Honorable Frank T. Galati, Judge
Opinion of the Court of Appeals, Division One
193 Ariz. 437, 973 P.2d 1198 (1998)
Appeal from the Superior Court of Maricopa County
Cause No. CR 96-92542
The Honorable Cheryl K. Hendrix, Judge
Opinion of the Court of Appeals, Division One
193 Ariz. 442, 973 P.2d 1203 (1998)
Richard M. Romley, Maricopa County Attorney
Gerald R. Grant
Deputy Maricopa County Attorney
Attorneys for Petitioner State of Arizona
Dean W. Trebesch, Maricopa County Public Defender
and C. Daniel Carrion
and Russell G. Born
and Tammy Wray
Deputy Maricopa County Public Defenders
Attorneys for Real Party in Interest Russell K. Petersen
Janet A. Napolitano, The Attorney General
Paul J. McMurdie
Chief Counsel, Criminal Appeals Section
and Colleen L. French and Serena Christion
Assistant Attorneys General, Criminal Appeals Section
Attorneys for Appellee State of Arizona
Law Offices of David Michael Cantor, P.C.
David Michael Cantor
Attorney for Appellant Lance Allen Root
Law Offices of Michael J. Dew
Michael J. Dew
Attorneys for Amicus Curiae
City of Phoenix Public Defender
H. Allen Gerhardt, Jr., Coconino County Public Defender
Diane S. McCoy
Deputy Coconino County Public Defender
Attorneys for Amicus Curiae
Coconino County Public Defender
M c G R E G O R, Justice
These consolidated cases present the question whether a
trial judge can order a bifurcated trial that permits a defendant
to plead guilty or to stipulate to prior convictions that are
defendant’s plea or stipulation from the jury, and submit the
conflicting court of appeals’ opinions, State v. Galati, 193 Ariz.
437, 973 P.2d 1198 (App. 1998) (hereinafter Petersen), and State v.
Root, 193 Ariz. 442, 973 P.2d 1203 (App. 1998), to address this
issue of statewide importance and resolve the conflict.
CONST. art. VI, § 5(3); A.R.S. § 12-120.24; Espinoza v. Martin, 182
Ariz. 145,146, 894 P.2d 688, 689 (1995) (grant of special action
relief proper when issue is of statewide importance). We hold that
a trial judge cannot bifurcate a trial when doing so precludes a
jury from considering prior convictions that are elements of a
The State charged defendant Russell K. Petersen with two
violation of Arizona Revised Statutes (A.R.S.) sections 28-1383.A.1
These subsections provide that a person who commits a DUI
The statute was renumbered after the State brought
charges against Petersen. In this opinion, we use the current
number, A.R.S. § 28-1383, rather than the superseded number,
A.R.S. § 28-697.
while his or her driver’s licence is “suspended, canceled, revoked
or refused or while a restriction is in place on the . . .
license,” or who “within a period of sixty months commits a third
or subsequent” DUI, is guilty of aggravated DUI, a felony.
§§ 28-1383.A.1, .2.
The aggravating element of count one against Petersen was
that he committed a DUI while his driver’s license was suspended,
canceled, revoked or refused, or restricted due to a previous DUI.
The aggravating element of count two was that Petersen had been
twice convicted of DUI within the previous sixty months.
aggravating elements on the condition that the jury would not hear
Petersen agreed that, if the jury convicted him of a
misdemeanor DUI, the trial court then could enter judgment against
him on the two counts of aggravated DUI.
The State objected to
that procedure, arguing that the trial court could not preclude the
jury from hearing evidence related to the aggravating elements.
The trial court concluded that permitting the jury to
hear evidence about the aggravating elements would result in unfair
prejudice, and that the State need not present evidence of those
elements if Petersen admitted to them.
The trial court then
ordered that it would bifurcate the trial and conduct a modified
intelligently, and voluntarily admit the aggravating elements.
the trial court accepted his plea, trial to the jury would proceed
only on the current DUI charge, and the jury would never hear
evidence of the aggravating elements.
From this ruling, the State
filed a petition for special action to the court of appeals.
The court of appeals accepted jurisdiction, reversed the
ruling of the trial court, and vacated the bifurcation order.
Relying upon Rule 19.1.b of the Arizona Rules of Criminal Procedure
(Rule 19.1.b) and this court’s opinion in State v. Geschwind, 136
Ariz. 360, 666 P.2d 460 (1983), and distinguishing Old Chief v.
United States, 519 U.S. 172, 117 S. Ct. 644 (1997), the court of
appeals held that the trial court could not prevent the jury from
knowing about the aggravating elements.
In Root, the State charged defendant Lance Allen Root
with two counts of aggravated DUI, invoking the same subsections of
A.R.S. section 28-1383 applicable in Petersen.
Before trial, Root offered to stipulate to his two prior
DUI convictions, and filed a motion in limine seeking to preclude
the State from presenting evidence of those prior convictions to
The trial court denied Root’s motion on the ground that
the two prior DUI convictions constituted elements of the charged
offense of aggravated DUI.
The jury convicted Root of aggravated
Root appealed his conviction and sentence to the court of
A second division of the court of appeals, relying upon
the United States Supreme Court’s decision in Old Chief, reasoned
that Root’s stipulation satisfied the aggravating elements of the
offense charged and avoided the risk that the jury would convict
Root solely because he had committed the same offense on two
The court reversed Root’s conviction and
remanded the matter for a new trial.
Neither Petersen nor Root disputes that prior convictions
for DUI or driving on a suspended license while committing a DUI
are elements of aggravated DUI.
They argue, however, that a court
can bifurcate those elements from trial of a current DUI charge and
permit the jury to consider only the evidence offered to establish
the current charge.
This court’s own rules prohibit using that
Rule 19.1.b defines the procedure a court should follow
when a defendant is charged with prior convictions.
states that a defendant is entitled to a bifurcated trial “[i]n all
prosecutions in which a prior conviction is alleged, unless such
conviction is an element of the crime charged.”
The procedure described in the rule, which is essentially the
procedure these defendants request, expressly applies when a prior
conviction is not an element of the crime charged.
facts to which these defendants offered to stipulate constituted
elements of aggravated DUI, they were not entitled to a bifurcated
trial under the clear language of Rule 19.1.b.
The distinction made in Rule 19.1.b reflects the central
determining whether the State has proved each element of the
charged offense beyond a reasonable doubt.
That obligation cannot
be delegated, in part, to the trial judge.
See State v. Powers,
154 Ariz. 291, 293, 742 P.2d 792, 794 (1987) (a jury must determine
the existence of all elements of a crime beyond a reasonable
similar to that raised here, also recognized the importance of
submitting all elements of a crime to the jury for decision.
Geschwind, we held that when a prior conviction is an element of
the present charge, the trial court cannot preclude the jury from
hearing evidence of that conviction.
136 Ariz. at 362, 666 P.2d at
462. We reasoned that the nature “of the prior [DWI] conviction as
an element of the crime rather than a mere sentencing consideration
settles the question of appellant’s entitlement to a bifurcated
trial [in the negative] . . . because proof of the prior conviction
was part of the state’s burden of proving all the elements of the
Id.; see also State v. Flood, 149 Ariz. 199, 717
P.2d 878 (1986) (holding that a prior DWI conviction, the existence
convictions under previous Arizona law, did not constitute an
element of the offense, and thus the trial court could bifurcate
the defendant’s DWI trial).
We distinguish Old Chief, on which defendants rely, on
In Old Chief, the government charged the defendant
with being a felon in possession of a firearm.
The defendant, who
did not want the jury to learn that his prior felony conviction
that he had been previously convicted of a felony.
The jury therefore would know he was a felon, but not the nature of
the prior offense.
Id. at 175, 117 S. Ct. at 648.
Court held that submitting the stipulation was proper because
evidence of the nature of the defendant’s felony conviction could
cause unfair prejudice, given its capacity to “lure the factfinder
into declaring guilt on a ground different from proof specific to
the offense charged.”
Id. at 180, 117 S. Ct. at 650.
The first point of distinction between these cases and
Old Chief is that the defendant in Old Chief agreed the jury would
hear his stipulation, whereas Petersen and Root wanted their
stipulations kept from the jury.
The second point of distinction
is that in Old Chief, the element at issue was the existence of any
prior felony conviction; the government did not have to show the
nature of the felony to establish the charged offense.
75, 117 S. Ct. at 647.
Id. at 174-
To convict Petersen and Root of aggravated
DUI, however, the State needed to establish they committed
while driving on a suspended license or sustained two prior DUI
establish these elements of the charged offense without showing the
We conclude that because the prior convictions to which
the defendants agreed to stipulate constitute elements of the
charged offense, they were not entitled to a bifurcated trial.
For the foregoing reasons, we approve the court of
appeals’ opinion reversing the trial court’s judgment in Petersen;
we vacate the court of appeals’ opinion in Root and reinstate
Ruth V. McGregor, Justice
Thomas A. Zlaket, Chief Justice
Charles E. Jones, Vice Chief Justice
Frederick J. Martone, Justice
FELDMAN, Justice, specially concurring
I disagree with the analysis applied and therefore write
analysis is well set forth in the court of appeals' opinion in
State v. Root, 193 Ariz. 442, 973 P.2d 1203 (App. 1998), and need
not be repeated here.
The Wisconsin Supreme Court reached a
conclusion similar to that in Root in State v. Alexander, 571
N.W.2d 662 (Wis. 1997).
The Wisconsin court held that when the
defendant offers to stipulate to a prior status offense and the
state rejects the offer for no purpose other than to present
propensity evidence, hoping to stir up whatever prejudice may
result when the jury learns of the defendant's prior convictions,
the trial judge has discretion to withhold the evidence under
In my view, these rules are not trumped by Rule 19.1,
Ariz.R.Crim.P., which was promulgated just to avoid prejudice in
situations similar to that in the present case.
Rule 19.1 was
intended to cover cases in which, to avoid unnecessary prejudice,
the defendant offered to stipulate to the fact of conviction.
text does not deal with the present situation but, rather, with
trial of contested issues regarding prior convictions. I therefore
believe Rule 19.1 co-exists with Rule 403 and, as recognized by
Root, the trial judge may accept the stipulation and withhold
evidence of the prior convictions from the jury.
If Rule 19.1
prevents this, it should be changed.
By enacting the current statute, the legislature changed
prior convictions in DUI cases from sentence enhancers to elements
of the crime.
This, of course, does not overcome the provisions of
Rule 403 permitting judges to exclude relevant evidence when
probative value is outweighed by prejudice.
cannot, by the simple expedient of changing labels, interfere with
the court's rule-making power. State ex rel. Napolitano v. Brown,
1999 WL 356436 (Ariz. 1999).
The provisions of article VI, § 5(5)
of the Arizona Constitution, which give the court the power to make
procedural rules, including the Rules of Evidence, is designed to
ensure that courts will operate in a manner that will ensure a fair
trial for everyone.
Root, 193 Ariz. at 445, 973 P.2d at 1206-07.
In the situations presented by the cases before us, this can only
be accomplished by recognizing the trial judge's discretion to
handle the case under Rule 403.
But the issue the court chooses to address in these cases
is whether Defendants were entitled to a bifurcated trial under
inapplicable to these cases, I join in the narrow holding that
Defendants were not entitled to a bifurcated trial.
Stanley G. Feldman, Justice