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ROSS v. STATE12/26/1997
decide this issue. The judgement of the superior court is AFFIRMED.
However, we wish to emphasize the limited nature of our ruling:
First, the issue presented in Ross's case does not arise if a defendant's prior convictions are relevant for some purpose other than to establish the "prior convictions" element of felony DWI. If the defendant's prior convictions are relevant for some other purpose, see Alaska Evidence Rule 404(b), and if the trial judge concludes that the probative value of this evidence is not outweighed by the danger of unfair prejudice, see Alaska Evidence Rule 403, then the jury can of course hear evidence of the prior convictions. The problem we address here arises only in cases like Ross's, where the prior convictions have no relevance other than to prove the "prior convictions" element of the crime.
Second, we do not hold that the stipulation used in Ross's case is the only correct method for dealing with the issue of the defendant's prior convictions in such cases. Nor do we hold that it is the best method. We hold only that it is a permissible method, and that it was a fair method under the facts of Ross's case.
We note that a defendant's willingness to stipulate to prior convictions does not answer the question of who will be the trier of fact on this element of the crime. Criminal cases are decided by jury unless the defendant waives the right to jury trial and the government consents to have the case tried to the court. In a jury trial, even when the parties reach a stipulation concerning the defendant's prior convictions, the stipulation will be presented to the jury, and the jury will decide the prior convictions element.
It is possible that a defendant might offer to waive the right to jury trial on the prior convictions element of the offense. This waiver could not be made through counsel; it would have to be made by the defendant personally. See McGlauflin v. State, 857 P.2d 366, 368-69 (Alaska App. 1993). If the defendant waives jury trial on the prior convictions element, and if the State is likewise willing to have the trial judge decide this element, then we see no reason why this element should not be tried to the court. If, however, the State is not also willing to waive jury trial on the element of the defendant's prior convictions, then the defendant's offer to waive jury trial would raise another unresolved question: whether a defendant can unilaterally waive jury trial on one or more elements of a criminal charge. See Alaska Criminal Rule 23(a); Horton v. State, 758 P.2d 628 (Alaska App. 1988).
Another way of dealing with this problem — one that we recommend to judges in the future — is to bifurcate the trial. In a bifurcated trial, the jury would first decide whether the defendant was guilty of driving while intoxicated on the date specified in the indictment; if the jury found the defendant guilty, the same jury would then decide the issue of the defendant's prior convictions. This solution would preserve both parties' right to a jury determination of all issues, while at the same time avoiding the potential for unfair prejudice that would otherwise be posed by evidence of the defendant's prior convictions. Moreover, this solution works equally well regardless of whether the defendant is willing to stipulate to the prior convictions or wishes to contest them.
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