Rowlins v. State, CR
| Decision Date | 23 January 1995 |
| Docket Number | No. CR,CR |
| Parties | Robert Dale ROWLINS, Appellant, v. STATE of Arkansas, Appellee. 94-1036. |
| Court | Arkansas Supreme Court |
Doug Norwood, Rogers, for appellant.
J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Robert Rowlins appealed his municipal court conviction for DWI to the Washington County Circuit Court where a bench trial was held by Judge William Storey. At the circuit court trial, the state asked Officer Gunter Lindermeyer questions, concerning the officer having found Rowlins in his car parked with its motor running. Lindermeyer said that he requested Rowlins to get out of his car, and after observing Rowlins and testing him, Lindermeyer concluded Rowlins was under the influence of THC in combination with alcohol. Rowlins's counsel cross-examined the officer's testimony concerning THC. Then Judge Storey asked his own questions, requesting Lindermeyer to explain what THC was and what the significance was of the tests mentioned by Lindermeyer. Rowlins's counsel objected to Judge Storey's questions and this colloquy occurred:
Defense Counsel: Your Honor, I'm going to object. I think at this point, Judge, you're asking the questions that the prosecutor should have asked and I believe that you need to decide this case on the facts as presented to the case (sic). You're the trier of facts today. If we had a jury here instead, that jury would not be able to sit here and question that officer in the manner in which you're doing and I object to the Court doing that.
(Brief pause.) That's a good point, Mr. Norwood. I'll tell you what I'm going to do, I'm going to declare a mistrial in this case and I'm going to assign it to another court and recuse and it'll be for another judge.
Defense Counsel: Thank you, Your Honor. I appreciate that.
Alright, Court will stand in recess.
About two weeks after Judge Storey recused, a new hearing commenced with Judge David Burnett presiding. Judge Burnett, circuit judge for the second judicial circuit, was on exchange to Washington County Circuit Court pursuant to Ark.Code Ann. § 16-13-403 (Repl.1994) and Ark. Const. art. 7, § 22. Before the hearing, defense counsel asked Judge Burnett if the exchange agreement between Storey and Burnett had been reduced to writing, and Judge Burnett responded in the affirmative. Rowlins's counsel asked that the agreement be placed in the case file and Judge Burnett agreed to make it a part of the record to which counsel said, "Thank you, your honor." The agreement was, in fact, filed the day of the hearing. At the same hearing, defense counsel interposed an objection, claiming double jeopardy. In this respect, Rowlins argued that, without notice, Judge Storey had declared a mistrial and as a consequence, double jeopardy precluded a retrial. Judge Burnett denied Rowlins's double jeopardy claim and Rowlins brings this appeal from Judge Burnett's final order on that issue. See Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992).
In this appeal, Rowlins resumes his argument made below that, when Judge Storey declared a mistrial, double jeopardy precluded any retrial unless the mistrial was for a manifest necessity. Rowlins argues no manifest necessity existed and, in fact, states that when Judge Storey declared a mistrial, there was nothing in the record indicating that Judge Storey was favoring one side or the other by his questions.
Under Ark.Code Ann. § 5-1-112(3) (Repl.1993), a retrial of a defendant is not permitted if a former prosecution was terminated without the express or implied consent of the defendant unless the termination was justified by overruling necessity. Here, as set out above, Rowlins greeted Judge Storey's mistrial decision and ruling to recuse by saying, Surely, no more is required to show Rowlins's agreement with Judge Storey's decisions. While Rowlins now argues he believes Judge Storey's questions were not meant to favor the state, Rowlins, when he interposed his objection, admonished Judge Storey that he was asking questions the prosecutor should have asked. Rowlins reminded Storey that as judge,...
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