setting aside the contemporaneous objection requirement because a defendant does not need a contemporaneous objection to preserve his constitutional right to a trial
How later courts described this case
- setting aside the contemporaneous objection requirement because a defendant does not need a contemporaneous objection to preserve his constitutional right to a trial
- the violation of a right to a jury trial satisfies one of the “serious errors” set forth in Wicks v. State, supra
- denial of right to jury trial constituted “structural error”
Written by the judges who cited it.
The opinion
Tom Glaze Justice, dissenting. To reverse this case borders on the absurd.
Clearly, Mr. Randy Winkle had a right to appeal his municipal court convictions for DWI, third offense, hindering apprehension and suspended driver’s license to the Grant County Circuit Court. In fact he appeared with counsel in the circuit court, and received a de novo trial by the trial judge sitting without a jury. In advance of trial, Winkle was notified in writing by the court that he had a constitutional right to trial by jury, and if he desired a jury, Winkle should notify the court at least ten days before the trial date, otherwise his right to a jury trial would be waived.
Neither Winkle nor his attorney requested a jury trial. Nor did they object at trial to his being tried by the court without a jury. Instead, he waited to raise the jury trial issue only after he was again convicted, sentenced to nine days in jail, fined $1,750 and had his driver’s license suspended. In sum, Mr. Winkle lost his case before the trial judge, and now on appeal, he cites Elmore v. State, 305 Ark. 426 , 809 S.W.2d 370 (1991), and argues for the first time that he was entitled to a jury trial below. Even now, the appellant does not ask for the remedy given by the majority, that is, to have his case remanded for a jury trial. Instead, the appellant requests that this court reverse and dismiss his conviction.
Obviously, Winkle was entitled to a jury trial; the trial judge knew that and informed Winkle of such right. His right to a jury was in no way diminished by requiring him in these circumstances to object to proceeding against him without a jury. Allowing Winkle to lay behind the log to see first if he might obtain a favorable decision merely encourages game-playing in these cases involving municipal appeals.
Recently, our court expressed that few tenets are more firmly established than the rule requiring a contemporaneous objection to preserve a point for review on appeal. Miller v. State, 309 Ark. 117 , 827 S.W.2d 149 (1992). Even a constitutional question must be raised in the trial court to be reviewable on appeal. See Griggs v. State, 280 Ark. 339 , 658 S.W.2d 371 (1983). This court has applied the contemporaneous objection rule to constitutional rights such as the right to be free from double jeopardy and the sixth amendment right to present a defense. Moore v. State, 303 Ark. 514 , 796 S.W.2d 329 (1990); Harrison v. State, 303 Ark. 247 , 796 S.W.2d 329 (1990); Stephens v. State, 293 Ark. 366 , 738 S.W.2d 91 (1987).
Undisputably, Winkle had a right to a trial by jury, see Ark. Const. art. 2, § 10; nonetheless, our case law is settled that if a defendant believes he or she is going to be denied that constitutional right, the defendant must enter a contemporaneous objection. Here, if Winkle had done so, the trial court would have had an opportunity to correct any error. As evidenced by its earlier pretrial notice to Winkle, the court knew Winkle was entitled to a jury and would have assuredly granted him a jury trial.
The majority court in its opinion spends much time in discussing whether Winkle waived his right to a jury as provided by statute or rule. Such discussion begs the question since the issue is whether Winkle objected to a trial by the court, not whether he waived his right to a jury. By analogy, the United States and Arkansas Constitutions mandate a defendant has a sixth amendment right to present a defense. Nevertheless, if the defendant chooses not to waive such a right, the defendant must still interpose an objection if he or she is forced to trial contrary to such right.
In this case, Winkle never waived his jury trial right, but neither did he object to proceeding without one. Undoubtedly, he would have received a jury trial if he had interposed an objection at any stage of the trial court proceeding.
While recognizing Winkle’s inviolate right to a trial by jury, it seems more than passing strange to allow him to sit through an entire trial without mentioning his now belated expressed interest in not having had one. To the extent the majority court relies on Elmore, 305 Ark. 426 , 809 S.W.2d 370 , this court should concede it erred and overrule that decision.
Hays and Brown, JJ., join this dissent.