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Barnes v. Bernini

Court of Appeals of Arizona, Second Division

July 30, 2018

Jarrad Trevor Barnes, Petitioner,
Hon. Deborah Bernini, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.

          Special Action Proceeding Pima County Cause No. CR20162169001

          James L. Fullin, Pima County Legal Defender.

          By 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 Interest.

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.



         ¶1 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.


         ¶2 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 jeopardy claim.

         Factual and Procedural Background

         ¶3 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, [1] 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."[2]

         ¶4 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.

         ¶5 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 vehicle."

         ¶6 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 negligent homicide.
[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 jury.
[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 . . . lessers given.
[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.

         ¶7 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 ...

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