Special Action Proceeding Pima County Cause No. CR20162169001
L. Fullin, Pima County Legal Defender.
James L. Fullin, Legal Defender, and Stephanie Ryan,
Assistant Legal Defender, Tucson Counsel for Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines,
Deputy County Attorney, Tucson Counsel for Real Party in
Espinosa authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Eppich concurred.
In this special action, petitioner Jarrad Barnes challenges
the respondent judge's order scheduling a jury trial to
determine whether his conviction for negligent homicide is
punishable as a dangerous offense. He maintains empaneling a
new jury to determine a fact necessary to enhance his
sentence violates double jeopardy principles. He also
contends the state waived the issue pursuant to Rule 19.1,
Ariz. R. Crim. P. For the following reasons, we accept
jurisdiction but deny relief.
While our acceptance of special-action jurisdiction is highly
discretionary, Randolph v. Groscost, 195 Ariz. 423,
¶ 6 (1999), Arizona courts "have held that 'a
petition for special action is the appropriate vehicle for a
defendant to obtain judicial appellate review of an
interlocutory double jeopardy claim.'" State v.
Moody, 208 Ariz. 424, ¶ 22 (2004), quoting
Nalbandian v. Superior Court, 163 Ariz. 126, 130 (App.
1989). Although the claim may also be raised on appeal after
retrial, see State v. Minnitt, 203 Ariz. 431, ¶
24 (2002), special-action review is appropriate
"[b]ecause the Double Jeopardy Clause guarantees the
right to be free from subsequent prosecution" and, if
applicable, "the clause is violated by the mere
commencement of retrial." Moody, 208 Ariz. 424,
¶ 22. Furthermore, the issues raised here are of first
impression in Arizona, another important factor in granting
special action review. See State ex rel. Romley v.
Martin, 203 Ariz. 46, ¶ 4 (App. 2002). Accordingly,
we accept jurisdiction of Barnes's interlocutory double
and Procedural Background
According to the state's recitation of the facts, in May
2016, Barnes was driving at excessive speeds with both
marijuana and Clonazepam in his bloodstream when he lost
control of his car, hit a center median, and was
"launched into oncoming traffic," colliding with
victim A.D.'s car head-on. A.D. died as a result of her
injuries, and the state indicted Barnes on seven charges,
including manslaughter, based on A.D.'s death (Count
One), and endangerment, a count "relating to [E.F.], who
was driving behind [A.D.]" (Count Three). The indictment
apparently did not include dangerous-nature allegations,
but, on the day it was returned, the state filed an
"Allegation of Dangerous Nature of the Offense(s)
Charged," alleging both counts one and three were of a
dangerous nature. Anticipating the possibility of jury
instructions on lesser-included offenses, this filing also
provided, "[T]he State alleges the lesser included
offense is of a dangerous nature."
At the close of trial in April 2018, the respondent judge
instructed the jury on manslaughter and endangerment, and,
consistent with jury instructions proposed by the state,
advised the jury, "The State has alleged that the
offenses in Count One, Manslaughter [, ] and Count Three,
Endangerment[, ] are of a dangerous nature." The jury
was also instructed on negligent homicide, as a
lesser-included offense of manslaughter, but not that the
state had alleged dangerousness as to that offense.
Similarly, although the verdict forms included
interrogatories on the issue of dangerousness for the
offenses of manslaughter and endangerment, there was no
dangerousness interrogatory for negligent homicide.
The jury found Barnes not guilty of manslaughter, but guilty
of the lesser-included offense of negligent homicide and some
of the other charges alleged. It also found the offense of
endangerment "to be of a dangerous nature involving the
use and/or discharge and/or threatening exhibition of a
deadly weapon or dangerous instrument, to wit a motor
After reading the verdicts, the respondent judge asked the
jurors, "[A]re these your verdicts and the verdicts of
each of you?" to which they collectively responded,
"Yes." The respondent then asked whether either
side wished to have the jury polled, and the prosecutor
responded that the state did not, but asked to approach the
bench, where the following discussion ensued:
[PROSECUTOR]: I don't-I didn't hear the Court read
out the verdict as far as whether Count One was of a
dangerous nature or not.
THE COURT: Because we didn't put dangerous nature on
homicide. And I'm not sure you can have dangerous nature
negligent homicide. But it is dangerous nature as to the
endangerment. So he's going into custody.
[PROSECUTOR]: You can certainly have dangerous nature on
[DEFENSE COUNSEL]: Yeah, you can.
THE COURT: Well, it didn't go to them on it. So that was
the Court's mistake and that's how it went to the
[PROSECUTOR]: Judge, I would ask that we ask them to
ask-answer that question for us. That makes a huge difference
in not just custody status but sentencing range.
THE COURT: It makes a huge difference. But you think I can
send them back now to make that decision?
[PROSECUTOR]: I would ask the Court [to] do that since we
alleged dangerous nature as to manslaughter and any . . .
THE COURT: Okay.
[DEFENSE COUNSEL]: I don't think you can do that. I mean
it-the jury's verdict has been rendered. It's not an
aggravating factor. It's something they have to consider
and it has to be proven beyond a reasonable doubt to the
jury. The forms were approved by the parties. We evidently
didn't catch that we didn't put it on the lesser.
The respondent judge then reviewed the jury instructions to
determine whether the jury had been instructed about
dangerousness for the negligent homicide offense, even though
the dangerousness interrogatory was missing from the verdict
form. She then stated, "We didn't instruct them on
it. So I'm not going to send them back. And we can
discuss it later as to what we're going to do.
Sorry." The respondent then asked if ...