The opinion
Darrell Hickman, Justice, dissenting. The majority has adopted as a principle of law that it is error for a lawyer in a criminal case to stipulate to prior convictions. In this case the majority finds that the case must be reversed to correct the error. That principle may be found in two cases that we generally refer to as Cox I and Cox II (Cox v. Hutto, 589 F. 2d 394 (1979) and Cox v. Hutto, 619 F. 2d 731 (1980)). It is my judgment that the United States Supreme Court has not yet approved this principle and we are not bound by it.
The Cox rule is wrong for two reasons. First, it requires a case to be reversed without any showing of prejudice. As applied it simply means that an attorney cannot stipulate that the defendant has prior convictions even though the defendant is present in court when the stipulation is made. The defendant must orally recite in open court that the convictions are a fact. Otherwise, the/ conviction must be reversed. The rule, as applied by the Eighth Circuit Court of Appeals, makes no allowance for the truth of the matter and does not require any showing of actual prejudice. Violation of the rule simply requires reversal.
McCroskey does not even bother to argue the question of whether he had three prior convictions nor does he bother to argue any prejudice. He simply relies upon the Cox cases. It makes no difference whether he had three prior convictions; it makes no difference if they were all proper. The United States Supreme Court has held without equivocation that prejudice must be shown before an error requires reversal. In my judgment the rule that we are upholding today runs contrary to the Harrington principle. Harrington v. California, 395 U.S. 250 (1969). Isn’t one of the purposes of appellate review to see that a fair trial has been received? Shouldn’t we view errors to see if there is any relation to that goal, not just to see if some mechanical test has been performed?
The rule in Cox is also wrong because it is one more step in the advancement of a philosophy that will ultimately destroy our advocacy system. Ours is not a perfect system but it is a sound one. We have to place some faith in the lawyers representing parties. There are innumerable safeguards for a criminal defendant: the presumption of innocence; the state’s burden; strict rules of procedure and evidence; and, free counsel both at the trial and on appeal. Do we now try the case for the parties? As long as a lawyer represents a defendant or party, he should have the power to stipulate to facts or matters that are not in dispute. The rule presumes that counsel cannot act as counsel. It means to one more degree the court must inject itself in the trial, leaving its position of neutrality.
McCroskey has not even suggested that he did not receive a fair trial or that he has been prejudiced. He would have to make those assertions before I would consider reversing the decision.
Adkisson, C.J., joins in this dissent.