State ex rel. Collins v. Superior Court In and For County of Maricopa

• Court: Arizona Court of Appeals
• Writing for the Court: FIDEL
• Citation: State ex rel. Collins v. Superior Court In and For County of Maricopa, 778 P.2d 1288, 161 Ariz. 392 (Ariz. App. 1989)
• Decision Date: 31 January 1989
• Docket Number: No. 1,CA-SA,1
• Parties: The STATE of Arizona ex rel. Thomas E. COLLINS, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Frank T. Galati, a judge thereof, Respondent Judge, David Robert VALENTI, Real Party in Interest. 88-177.

Page 1288

778 P.2d 1288

161 Ariz. 392

The STATE of Arizona ex rel. Thomas E. COLLINS, Maricopa County Attorney, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Frank T. Galati, a judge thereof, Respondent Judge David Robert VALENTI, Real Party in Interest.

No. 1 CA-SA 88-177.

Court of Appeals of Arizona Division 1, Department B.

Jan. 31, 1989.

Review Denied Sept. 19, 1989.

[161 Ariz. 393] Thomas E. Collins, Maricopa County Atty. by H. Allen Gerhardt, Deputy County Atty, Phoenix, for petitioner.

Patterson & Terribile by Daniel B. Patterson, Phoenix, for real party in interest.

OPINION

FIDEL, Presiding Judge.

In State ex rel. Collins v. Udall, 149 Ariz. 199, 717 P.2d 878 (1986), the Arizona Supreme Court ruled that the state must make a bifurcated presentation to the trial jury in a felony DWI prosecution when prior convictions are alleged. This case presents the question whether a bifurcated presentation is likewise required to the grand jury when a felony DWI indictment is sought. Because the question is of state-wide importance, we exercise our special action jurisdiction to decide it.

Procedural History

On May 31, 1988, the Maricopa County Grand Jury received evidence to the effect that the defendant David Robert Valenti was intoxicated while operating his motor vehicle within the county on April 18, 1988. This evidence provided probable cause for indictment for violation of A.R.S. § 28-692(A). ¹ The prosecutor did not pause to secure such an indictment at that stage of the evidence. Instead, he went on to present evidence that the defendant had twice within the past sixty months been convicted for violations of § 28-692(A). Had the grand jury not heard evidence of these prior convictions, it could only have charged defendant with a misdemeanor pursuant to A.R.S. § 28-692.01(B). ² On the basis of the complete evidence, however, the grand jury charged the defendant with class 5 felonies pursuant to § 28-692.01(F). ³

Thereafter, the defendant moved that the superior court remand for a new finding of probable cause, and the Honorable Frank T. Galati granted the defendant's motion. Judge Galati interpreted the Udall decision to require the bifurcation of grand jury proceedings when a felony DWI indictment is sought. He stated:

Because State ex rel. Collins v. Udall, ... clearly holds that a prior conviction for violation of A.R.S. § 28-692 is not an element of the offense of driving while under the influence of intoxicating liquor with two prior convictions within 60 months, a class 5 felony, a fair and impartial presentation of the evidence requires that proof of the defendant's prior convictions not be presented to the grand jury until after a probable cause determination has been made on the underlying offense. Therefore,

IT IS ORDERED granting Defendant's Motion to Remand for New Finding of Probable Cause.

From that order, the state sought special action relief, which we granted, indicating by our order that an explanatory opinion would follow.

Analysis

The supreme court reasoned in Udall that a prior conviction is "not an element of the basic offense" of driving while under the influence of intoxicating liquor; rather, it is a punishment-enhancer pursuant to A.R.S. § 28-692.01(F). 149 Ariz. at 200, 717 P.2d at 879. Accordingly, in felony DWI prosecutions, bifurcated proof of prior convictions is required by Rule 19.1(b), 17 A.R.S. Arizona Rules of Criminal Procedure. ⁴ Id.

The question in this case is whether bifurcation is similarly required at the grand jury level. We conclude that it is not.

First, whether or not evidence of prior convictions is regarded as elemental, it is nonetheless essential at the charging stage if the charge is felony DWI. Proof of prior convictions not only enhances the ultimate punishment; it also escalates the initial charge from misdemeanor under § 28-692.01(B) to felony under § 28-692.01(F). Absent such proof, the grand jury could not decide the proper charge.

Second, Rule 19.1(b) requires only the bifurcation of evidence at trial. No counterpart among the rules requires bifurcated proof to the grand jury.

Third, we consider the purpose of bifurcation at trial--to prevent the jury from being swayed by knowledge of past convictions when deciding the defendant's guilt or innocence of the present charge. We acknowledge similar potential for prejudice at the grand jury level. That is, in a close case, a grand jury informed of prior convictions might more readily find probable cause for present indictment than a grand jury not so informed. Judge Galati's order was responsive to that risk.

However, at the grand jury level, unlike the trial level, bifurcation would be ineffective to alleviate the risk. At the conclusion of the first stage of a bifurcated presentation, a grand jury...