Johnson v. State, CR
| Decision Date | 25 October 1993 |
| Docket Number | No. CR,CR |
| Citation | 863 S.W.2d 305,314 Ark. 471 |
| Parties | Mickie Gean JOHNSON, Appellant, v. STATE of Arkansas, Appellee. 93-402. |
| Court | Arkansas Supreme Court |
Doug Norwood, Rogers, for appellant.
J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.
This case involves a consideration of the Arkansas implied consent law, codified at Ark.Code Ann. §§ 5-65-202, 5-65-205 (Supp.1991), and the effectiveness of a waiver of trial by jury. We hold that the appellant effectively waived his right to trial by jury and that his assessments of our implied consent law and a police implied-consent admonition form are of no moment.
The appellant, Mickie Gean Johnson, was arrested by State Trooper Mark Meadows on July 26, 1991, for driving while intoxicated, fleeing, and violation of the implied consent law. He was tried in the Prairie Grove Municipal Court in January 1992 and was found guilty of DWI and violation of the implied consent law. The court found him not guilty on the charge of fleeing. Following a de novo bench trial before the Washington County Circuit Court in July 1992, Johnson was again found guilty of DWI and violation of the implied consent law. The appellant raises three issues for reversal.
Johnson's first point addresses essentially the same question that we recently considered in Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993), where we found that an attorney's waiver of his client's right to a jury trial, made in open court and in the presence of the defendant, satisfied the requirement of Ark.R.Crim.P. 31.2 that such a waiver be made "personally." Johnson contends that the trial court erred in not granting him a trial by jury. He asserts that the circuit court failed to obtain a valid waiver of his right to a jury trial because it did not address him personally and elicit a knowing, intelligent, and voluntary waiver. We disagree.
Johnson's argument is based primarily upon two recent DWI cases which we considered in Bolt: Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), in which we declared that, under the Arkansas Constitution and the Arkansas Rules of Criminal Procedure, a criminal defendant is entitled to receive a trial by jury unless the right is waived in the manner provided by law.
As we noted in Calnan v. State, supra, the "manner prescribed by law" for waiver in a criminal trial is set forth in Rules 31.2 and 31.3 of the Arkansas Rules of Criminal Procedure. Rule 31.2 provides that:
Should a defendant desire to waive his right to trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.
Rule 31.3 states that "In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant's attorney...."
The two cases cited by Johnson, although superficially similar to the present set of circumstances, bear marked differences, as we noted in comparing the corresponding situation in Bolt. In Calnan, the appellant was tried in Rogers Municipal Court and found guilty of DWI, disorderly conduct, violation of the implied consent law, and speeding. She appealed to the circuit court and, in a de novo bench trial, was found guilty of all charges except speeding. No mention was made of a trial by jury by either party or the court. On appeal, Calnan asserted that she had not waived her right to a jury trial, and this court agreed, noting that a waiver is an "intentional relinquishment of a known right," 310 Ark. at 748, 841 S.W.2d at 595, and that, under the rules of criminal procedure, the only way a waiver of a jury trial can be effected is "by personally making an express declaration in writing or in open court," 310 Ark. at 747, 841 S.W.2d at 595, the proceedings of which must be preserved.
In Winkle v. State, supra, the defendant faced a more serious charge--DWI, third offense, in addition to driving on a suspended license and hindering apprehension or prosecution--but, like the defendant in Calnan, neither he nor his attorney asked for a jury trial or offered any objection to the bench proceedings. Citing Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991), we stated that, under the state constitution and rules of criminal procedure, a defendant is entitled to be tried by a jury without making such a motion. Further, we emphasized that a waiver of a jury trial is constitutionally permissible only when it is made in accordance with the provisions of the rules of criminal procedure.
The record in the case now before this court, unlike the transcripts in Calnan and Winkle, is far from silent on the question of waiver. In fact, it is quite similar to the record in Bolt, which reflects that the defendant's attorney, in open court and in his client's presence, formally waived "any requirement of a jury trial in this matter." See 314 Ark. at 388, 862 S.W.2d at 842.
At the beginning of Johnson's bench trial, the circuit court acknowledged the appellant's presence, calling him by his full name. During the defense counsel's closing argument, the following exchange occurred:
The distinction between the Calnan and Winkle cases and Johnson's situation--and the analogy with Bolt--is clear. Where nothing was said one way or the other about waiver during the trials in the earlier cases, defense counsel in the present matter affirmed "in open court" (as Ark.R.Crim.P. 31.2 puts it) that Johnson's right to trial by jury had been waived. Moreover, 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. Under the circumstances of the present case, Johnson was bound by his attorney's action.
The appellant argues in his second point for reversal that the Arkansas implied consent law--and specifically Ark.Code Ann. § 5-65-205 (Supp.1991)--is facially unconstitutional because it removes from the jury's province the ability to determine whether the arresting officer had reasonable cause to believe the defendant had been driving while intoxicated. In closing argument, Johnson's attorney asserted that if his client had been tried by a jury, the implied consent law would have violated his right to trial by jury because the trial court, rather than the jury, would have determined whether the appellant had been guilty of refusing to submit to a chemical test.
The statutory section at issue provides:
If the judge determines that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person's blood, and the person refused to submit to the test upon the request of the law enforcement officer, the judge shall order the Office of Driver Services to [suspend or revoke the operator's license].
Ark.Code Ann. § 5-65-205(c) (Supp.1991).
The trial court declared the constitutional issue moot because "the defendant has specifically waived his right to a jury trial." Johnson's contention is based on a hypothetical proposition: had there had been a jury trial, the appellant's rights would have been jeopardized. But it is well established that this court does not answer academic questions. Neeley v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986); Crittenden County v. Williford, 283 Ark. 289, 679 S.W.2d 795 (1984), supp. op. on den. of reh'g; Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). Nor does the Supreme Court issue advisory opinions. Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988).
Moreover, Johnson's attorney waited until his closing argument to address the issue of the constitutionality of the implied consent law. Failure to object at the first opportunity to do so waives any right to raise the point on appeal. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).
Finally, Johnson urges that the trial court erred in refusing to dismiss the charge of refusing to submit to a chemical test on the basis that he was inadequately informed of the consequences of refusing to take the test. The language of Ark.Code Ann. § 5-65-205(c) (Supp.1991), quoted above, states that "the judge shall (emphasis added) order the Office of Driver Services" to suspend or revoke the motor vehicle operator's license upon a judicial determination that the law enforcement officer had reasonable cause to believe that the arrested driver was DWI or while there was 0.10% of alcohol in the driver's blood and the driver refused to submit to a chemical test.
The consent form which Johnson signed contained the following notice:
If I have reasonable grounds for believing you have been driving or have been in actual control of a motor vehicle while intoxicated or while impaired by alcohol or a controlled substance, I can request that you take a chemical test of my choosing to determine your blood alcohol and/or controlled substance content.
If you refuse this test and a court later determines that I had proper cause to require you to...
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