State ex rel. Neely v. Sherrill In and For County of Pima

Decision Date16 July 1991
Docket NumberCV-90-0516-PR and CV-90-0491-SA,Nos. CV-90-0471-S,s. CV-90-0471-S
Citation815 P.2d 396,168 Ariz. 469
PartiesSTATE of Arizona, ex rel. Stephen D. NEELY, Petitioner, v. Hon. William N. SHERRILL, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF PIMA, Respondent. Lewis A. SEGELSON, Real Party in Interest. STATE of Arizona, ex rel. Stephen D. NEELY, Petitioner, v. Hon. Richard NICHOLS, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF PIMA, Respondent, Robert GANDARA, Real Party in Interest.
CourtArizona Supreme Court


Through these consolidated special action requests, the State of Arizona asks this court to resolve the following issue of statewide importance:

When a defendant absconds before or during a criminal trial, must the prosecution attempt to prove a prior conviction allegation to the trial jury after it returns its verdict on the underlying substantive charge, or may it attempt to prove the allegation to a different jury after the defendant's capture?

We accept jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and rule 8, Arizona Rules of Procedure for Special Actions. We grant the State's requested relief because we conclude that neither the Arizona Rules of Criminal Procedure, nor Arizona's sentencing statutes, nor the Arizona or federal constitutions prohibit the use of a second jury under these circumstances.

1. Lewis A. Segelson

Lewis A. Segelson was indicted for armed robbery. The State later alleged 6 prior felony convictions for sentence enhancement purposes. Segelson pleaded guilty to attempted armed robbery, but the trial court deferred acceptance of the plea agreement until the time set for entry of judgment and sentencing.

At sentencing, the court learned that Segelson had absconded, and the State successfully moved to withdraw from the plea agreement. The court directed that an order issue for Segelson's arrest, set a date for trial in absentia, and referred the case to the court commissioner for bond forfeiture proceedings.

The jury trial was held two months later, and Segelson was convicted of armed robbery. While the jury was deliberating, however, the State sought permission to prove the allegation of prior convictions to a second jury after Segelson was apprehended. The prosecution argued that Segelson's absence deprived it of non-testimonial evidence (in the form of a contemporaneous fingerprint exemplar) essential to establishing that he was the person who had been previously convicted. Over defense counsel's objection, the trial court granted the State's motion and discharged the jury after it returned its verdict on the robbery charge.

After Segelson was apprehended, the court reversed its ruling and refused to allow the State to prove the allegation of prior convictions to a second jury. The trial court stayed Segelson's sentencing to permit the State to seek special action relief in the court of appeals. When that court declined jurisdiction, the State petitioned this court for special action relief, 1 and we stayed all proceedings in the trial court until further order of this court.

2. Robert Gandara

Robert Gandara was indicted on one felony count of unlawful possession of drug paraphernalia. Attached to the indictment was an allegation that he previously had been convicted of another felony, criminal trespass. His trial began on May 24, 1990, with the resolution of pending motions and jury selection. The next day, however, Gandara failed to appear. The trial court found that Gandara had voluntarily absented himself, and it issued a bench warrant for his arrest. The trial then proceeded in his absence, and the jury convicted Gandara of the possession charge.

Before the trial judge discharged the jury, the State moved for permission to try the prior conviction allegation to another jury after Gandara was apprehended. As in Segelson's case, the State argued that Gandara's absence prevented it from proving that he was the person who previously had been convicted. The trial court granted the motion, and the State did not present any evidence concerning the prior conviction to the first jury.

Gandara was apprehended approximately 4 months later, and the court set the trial on the prior conviction allegation for October 26, 1990. At the time of trial, Gandara's counsel moved to dismiss the allegation, asserting that the second trial violated the rules of criminal procedure, the applicable sentencing statutes, and double jeopardy principles. The trial judge denied the motion and the second jury proceeded to find that Gandara previously had been convicted of criminal trespass. The court scheduled sentencing for November 14, 1990.

On November 14, however, believing that trying the prior conviction allegation to a second jury had placed Gandara in double jeopardy, the trial court vacated the second jury's verdict on the prior conviction and dismissed the allegation. The court then continued sentencing until November 27, 1990, to permit the State to seek special action relief from the Arizona Court of Appeals. The court of appeals declined jurisdiction, and the State petitioned this court for special action relief. On December 20, 1990, we stayed all proceedings until further order of this court.


Although the facts of Segelson's and Gandara's cases differ with regard to when each absconded and whether the prior conviction allegations were actually tried to a separate jury, the same issue is dispositive in both cases: When a defendant absconds, must the State try prior conviction allegations to the same jury that determines the underlying substantive charge? Thus, although we may occasionally address Gandara and Segelson separately in this opinion, the commonality of the issue presented in their cases transcends any factual variations between the two, and all issues discussed are equally applicable to both.

In State v. Crumley, 128 Ariz. 302, 625 P.2d 891 (1981), we addressed the propriety of trying a prior conviction allegation to a jury that had been inadvertently discharged and later reconvened. In concluding that the trial court had improperly allowed the discharged jurors to determine the prior conviction allegation, we limited our decision to the narrow factual situation of that case. We expressly noted that we did not decide the broader issue of "whether under the proper conditions trial of the allegation of a prior conviction may be had before a different jury than the one which returned the verdict." 128 Ariz. at 306, 625 P.2d at 895. In this case, however, we must decide that precise issue.

In support of its position that a prior conviction allegation may be presented to a jury different from the one that decides the substantive charge, the State argues that, although A.R.S. § 13-604(K) and rule 19.1(b)(2) of the Arizona Rules of Criminal Procedure suggest that the same jury should hear both issues, neither the rule nor the statute requires this procedure. The State also argues that a defendant is not placed in double jeopardy simply because the prior conviction allegation, which the State asserts is distinct from the substantive offense charged in the indictment, is heard by a different jury.

In contrast, defendants argue that rule 19.1(b)(2) implies that one jury must decide both the substantive charge and the allegation of the prior offense. They assert that any other interpretation would run counter to a defendant's "valued right" under the double jeopardy clause to have his or her trial completed by a particular tribunal and would violate notions of "fundamental fairness."

A. A.R.S. § 13-604(K) and rule 19.1(b)(2)

Pursuant to § 13-604(K), a trial judge may enhance a defendant's sentence by use of a prior conviction if (1) the prior is charged in the indictment or information, and (2) the defendant admits the prior or it is found by the trier of fact. Rule 19.1(b)(2) establishes the procedure for trying the prior conviction allegation: "If the verdict is guilty, the issue of the prior conviction shall then be tried, unless the defendant has admitted the prior conviction." 2

In State v. Johnson, we recognized that our previous decisions supported a conclusion that § 13-604(K) and rule 19.1(b)(2) "provide that the allegation of prior conviction be tried by the same jury which tried the substantive or current charge." 155 Ariz. 23, 26, 745 P.2d 81, 84 (1987), citing State v. Gilbert, 119 Ariz. 384, 581 P.2d 229 (1978); Crumley, 128 Ariz. 302, 625 P.2d 891. Thus, defendants correctly conclude that both the statute and rule envision the use of one jury. This practice, however, is not without exception, and precedent exists for allowing a second jury to try a prior conviction allegation. See, e.g., Johnson, 155 Ariz. at 26-27, 745 P.2d at 84-85 (mistrial after hung jury on prior conviction); State v. Riley, 145 Ariz. 421, 421-22, 701 P.2d 1229, 1229-30 (App.1985) (finding of prior conviction reversed on appeal because trial court erred in accepting defendant's admission of the prior).

A common element distinguishes those cases in which a second jury is allowed from those in which it is prohibited--the State's responsibility for necessitating the second jury. If the State is not at fault in creating the need for the new jury, A.R.S § 13-604(K) and rule 19.1(b)(2) do not prohibit the use of a second jury to try the prior conviction allegation. Accordingly, in both Johnson and Riley, because the State did not create the need for the second jury, impaneling the new jury was proper. But cf....

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