Summary
holding the constitutional issue was not preserved and thus declining to issue an advisory opinion
Summary of this case from Arms v. StateOpinion
Norman Douglas Norwood, Rogers, for appellant.
Winston Bryant, Atty. Gen., Little Rock, for appellee.
[314 Ark. 478-A] HOLT, Chief Justice.
Mickie Gean Johnson urges, in his petition for rehearing, that, in the opinion recently handed down in this case, Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993), we erred in our application of Bolt v. State, 314 Ark. [314 Ark. 478-B] 387, 862 S.W.2d 841 (1993). More particularly, the appellant contends that we failed to mention the "two-part test announced in Bolt " regarding notice to the accused of a right to a jury trial and the presence of the accused in open court when the attorney makes the waiver.
Bolt's two-tier ruling reads as follows:
... while a defendant who desires to waive his right to a jury trial under Rule 31.2 must do so either in writing or in open court, his or her attorney may also make such a waiver so long as the defendant has acknowledged he or she had been informed of the right and the attorney waives the right in open court, on the record and in the defendant's presence.
314 Ark. at 390, 862 S.W.2d 841. At his arraignment, Bolt had been informed by the court of his right to a jury trial and had signed a form in which that right and others were set forth. Upon commencement of trial, his attorney, in open court, on the record, and in Bolt's presence, waived the right to trial by jury. We held this was sufficient.
It is true, as Johnson notes in his petition, that the record in his case is silent on the question of his personal acknowledgment of having been informed by the trial court or his attorney of his right to a jury trial, and it is true, as well, that our opinion does not specifically refer to that portion of the Bolt requirement. The record and the opinion both, however, reflect the fact that the appellant was present when waiver was accomplished, the circuit court acknowledging Johnson's presence by calling him by his full name in open court. See 314 Ark. at 474, 863 S.W.2d at 306.
Moreover, the open-court, on-the-record exchange between the trial court and Johnson's attorney reveals that the judge employed the term "right to a jury trial" at a time when Johnson was present in the courtroom. Specifically, counsel expressly confirmed no less than four times (in response to questions or comments by the court) that trial by jury had been waived. In the colloquy, conducted in Johnson's presence, his attorney stated that it was "correct" that Johnson had waived his right. He went on to declare that "Yes, we have a bench trial, yes," and to assure the trial court that "there's no problem with that...." Finally, when the judge stated, "I just wanted to make it clear for the purpose of the record that you waived your right to a jury trial in this case, the case we're trying here today," Johnson's attorney responded by saying, "Right." Id.
In our opinion, we compared the situation in the present case with that in Bolt, observing that, "like the attorney in Bolt, defense counsel here, in the presence of the appellant, explicitly submitted the case to the court for a bench trial." 314 Ark. at 475, 863 S.W.2d at 307. Stated another way, Johnson's presence at the time of waiver amounted to a tacit acknowledgment of his right to a jury trial. As we noted in our opinion, under these particular circumstances, he was bound by his attorney's actions.
Although a signed acknowledgment that one has been informed of his right to a jury trial, such as the one in the Bolt case, is certainly preferable, when, as in the present case, counsel repeatedly confirms waiver in open court, on the record, and in the defendant's presence, the defendant may not stand idly by and later cry foul.
The petition for rehearing is denied.
Dudley and Newbern, JJ., would grant rehearing.