Calnan v. State

Robert L. Brown, Justice, dissenting. This case was a misdemeanor appeal in circuit court where the appellant was sentenced to two days in jail for DWI and fined. The majority has reversed her conviction and held that she was entitled to a jury trial, though neither she nor her attorney requested one in circuit court. I disagree.

The majority is correct that the right to trial by jury is a fundamental right, time-honored and revered. In a very real sense what confronts us in this case is a delineation of that right. The question is two-fold: 1) in what cases does the right attach? and 2) under what circumstances may it be waived or forfeited?

I. RIGHT TO TRIAL BY JURY

Under the majority’s theory of the case and constitutional interpretation, trial by jury is available and inviolate in “all cases at law.” Does this mean that the right attaches for all misdemeanors and small claims, regardless of the court where they are tried? Surely not. But in support of its argument the majority quotes from the Arkansas Constitution:

The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy, but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.

Ark. Const. art.2, § 7. (Emphasis added.) Though I recognize that this section has been applied in the past to criminal offenses, as well as civil matters, I question its application to criminal prosecutions. As is the case with the Seventh Amendment to the Federal Constitution, this amendment, by its terms, contemplates the amounts involved in the controversy, or damages. It also specifically refers to “civil cases.” Accordingly, I interpret the jury-trial guarantee in Section 7 as applying to civil matters — not criminal prosecutions.

The section of the Arkansas Constitution that deals with criminal prosecutions is Article 2, Section 10:

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed; provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor, and to be heard by himself and his counsel.

Ark. Const. art 2, § 10. (Emphasis added.) In the commentary to our waiver rules for trial by jury, the fact that Section 10 applies to criminal prosecutions is brought home: “Article 2, § 10 of the Arkansas Constitution confers the right to trial by jury upon an accused. Under this provision an accused enjoys the right to a jury trial in all criminal prosecutions in a circuit court.” Commentary to Article IX, Arkansas Rules of Criminal Procedure, Rule 31, p. 250.

The commentary then goes on to say that Section 10 does not distinguish between serious and petty offenses with respect to the right’s attachment. This is not correct. Specific reference is made to indictments in Article 2, the clear indication being that the right to trial by jury was intended to apply to felonies. Indictments are not filed in misdemeanor cases. See Burrow v. City of Hot Springs, 85 Ark. 396 , 108 S.W. 823 (1908).

The Federal Constitution has a similar guarantee for trial by jury under the Sixth Amendment, which has been applied to the states through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145 (1968). The right to a jury trial under the Federal Constitution attaches to “serious” crimes. Id. The U.S. Supreme Court has expanded on what it means by a serious crime. See Blanton v. City of North Las Vegas, 489 U.S. 538 (1989). In Blanton, the issue was whether the Federal Constitution required that a jury trial be afforded for a charge brought by the State of Nevada for driving under the influence of alcohol which carried a maximum sentence of six months for first offense. The Court held that DWI in Nevada was a petty offense because it entailed a penalty of not more than six months. The Court added than an objective indicator of seriousness was the maximum penalty assessed for the crime by statute:

[P]rimary emphasis, however, must be placed on the maximum authorized period of incarceration.

Following this approach, our decision in Baldwin 1 established that a defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months. [Citing authority.]

489 U.S. at 542 .

In the case before us, the criminal offenses that were tried de novo in circuit court were all misdemeanors. But first-offense DWI is punishable by a maximum prison term of one year and a fine of $150 to $1,000, even though only two days in prison were assessed in this case. Ark. Code Ann. §§ 5-65-111 (a), 5-65-112(1) (1987). Under the objective test set out in Duncan v. Louisiana, supra, and Blanton v. City of North Las Vegas, supra, the crime is deemed serious due to the potential for a maximum incarceration of one year, and the constitutional right to trial by jury attaches under the Sixth Amendment. This is so, even when the applicable state constitution appears to afford the jury trial right to felonies rather than misdemeanors as the Arkansas Constitution appears to do in Article 2, Section 10. See Duncan v. Louisiana, supra. Hence, it is not Article 2, Section 7 or Section 10, of the Arkansas Constitution that mandates a jury trial in the case, but the Federal Constitution as interpreted by decisions of the United States Supreme Court.

II. WAIVER OR FORFEITURE

The issue then becomes whether the right to a jury trial, which attached in this case, can be forfeited by non-compliance with our contemporaneous objection rule or whether the right can only be lost by an overt waiver in accordance with Ark. R. Crim. P. 31.1 - 31.3 Under these facts, I contend that the right can be forfeited.

As already noted, Article 2, Section 7, relates to civil cases — not criminal. Its waiver provision, as a consequence, does not control this case, as the majority maintains. Our criminal rules and our statutes provide a jury-trial waiver by the defendant which must be expressly made. Ark. Code Ann. § 16-89-108 (1987). Ark. R. Crim. P. 31.1 - 31.3. Again, though, the rules and statute must be interpreted as relating primarily to Article 2, Section 10, and Section 10 guarantees the right for felonies, not misdemeanors. 2 But, in addition, the statute and rules do not provide the exclusive means of losing a constitutionally protected right. That right may also be forfeited under circumstances such as we have here.

When a defendant has been charged with a felony, the right to a jury trial and the waiver provisions kick in under state law. When a defendant has been charged with a “serious” misdemeanor, the United States Supreme Court also says the right to a jury trial must be afforded. But the Court has not gone so far as to hold that with respect to all misdemeanors the right may not be forfeited under state law. A reasonable interpretation is that the right can be forfeited in certain misdemeanor cases by failure to demand it or to object to its absence. That is exactly what happened in the instant case.

Failure to object to a matter at the trial level deprives the circuit court of the opportunity of ruling on that issue, as we have noted many times. See, e.g., Withers v. State, 308 Ark. 507 , 825 S.W.2d 819 (1992); Wicks v. State, 270 Ark. 781 , 606 S.W.2d 366 (1980). The contemporaneous objection rule is well-entrenched in this state. For example, we said in Withers: “We have long been resolute in holding that a contemporaneous objection is a prerequisite to our review .... [Citations omitted.] Otherwise, this would give rise to a basic unfairness in that the trial court would be foreclosed from considering the point of error on appeal.” 270 Ark. at 510 , 606 S.W.2d at 821 . Parties on appeal are, therefore, bound by the scope and nature of those arguments presented to the trial court for its consideration. Williams v. State, 304 Ark. 279 , 801 S.W.2d 296 (1990).

This court has stressed that the denial of any right, even a constitutional one like due process protection, must be objected to at trial to be preserved for appeal. See, e.g., Smith v. City of Little Rock, 305 Ark. 168 , 806 S.W.2d 371 (1991) [retroactive application of legislation]; Kittler v. State, 304 Ark. 344 , 802 S.W.2d 925 (1991) [failure to receive notice prior to trial of filing of habitual offender charge]; Barnes v. State, 294 Ark. 369 , 742 S.W.2d 925 (1988) [challenge to constitutionality of probation statute]; Harvey v. State, 292 Ark. 267 , 729 S.W.2d 406 (1987) [defective recording of statement as violation of due process]; see also Wainwright v. Sykes, 433 U.S. 72, 90 (1977), where the Court noted: “If a criminal defendant thinks that an action of the state trial court is about to deprive him of a Federal Constitutional right there is every reason for following state procedure in making known his objection.”

There is precedent for a situation virtually identical to our present dilemma. See Griggs v. State, 280 Ark. 339 , 658 S.W.2d 371 (1983). In Griggs, the issue also was a misdemeanor trial before the circuit court involving third-degree burglary, and a year’s sentence was given with nine months suspended. We said there that we recognized the constitutional right to a jury trial in felony cases, but we also stated that in Griggs a constitutional issue was not involved, which, implicitly, was due to the fact that the crime was a misdemeanor. We then held that a constitutional question must be raised in the trial court for the question to be reviewable on appeal. Since it was not raised in the trial court, it was forfeited for purposes of appeal. Thus, in Griggs, we squarely associated forfeiture of the right to a jury trial in a misdemeanor case with failure to object to its absence at the trial court level. The same issue now looms before us in this case. As in Griggs, the record is silent on the jury trial question. It may have been discussed at the circuit court level or it may not have been. We can only speculate on the matter. What we do know is that no demand or objection relating to a jury trial appears of record.

No action was taken by Calnan to preserve her right to trial by jury for DWI, a misdemeanor, and she was sentenced to two days in jail. She is presumed to have known her rights, especially when she was represented by counsel. Yet, she opted for trial before the circuit judge. It was only after conviction and on appeal to this court that she asked for a jury trial.

We go too far in mandating jury trials for misdemeanors when no jury trial has been requested and no objection made. Defense counsel and the appellant were presumed to have known the appellant’s rights. By waiting until after conviction to assert a jury trial guarantee smacks of double protection. Failure to demand a right in a misdemeanor appeal must carry with it some consequences. In this case, the consequence should be forfeiture of that right.

I respectfully dissent.

Hays and Glaze, JJ., join. Baldwin v. New York, 399 U.S. 66 (1970) (plurality opinion).

Ark. R. Crim. P. 31.3 does authorize a waiver by counsel in misdemeanor cases where a fine is involved.