Strickland v. State

Robert H. Dudley, Justice, concurring.

I concur with the result reached in the majority opinion. This concurring opinion is written to state the reasons I would amend A.R.Cr.P Rule 36.21 to require that a defendant state to the trial court the missing evidence in a motion for acquittal based on insufficiency of the evidence. Debate over use of the term “directed verdict” in a bench trial does not join the issue: The issue is whether specific grounds must be stated at trial in order to preserve an argument for appeal about sufficiency of the evidence, no matter what the motion is labeled.

This court repeatedly has taken the position that a party must contemporaneously raise an issue in the trial court before it can be argued on appeal. See, e.g., Marshall v. State, 316 Ark. 753 , 875 S.W.2d 814 (1994); Withers v. State, 308 Ark. 507 , 825 S.W.2d 819 (1992). The current rule disregards this axiom in bench trials. Correspondingly, in jury trials, we have repeatedly made clear the necessity of challenging the sufficiency of the evidence by stating specific grounds. Reagan v. State, 318 Ark. 380 , 885 S.W.2d 849 (1994). Injury trials, the sufficiency of the evidence must be challenged on specific grounds to apprise the trial court of the evidence that is lacking so that the trial court might be specifically apprised of the evidence lacking, and also to allow the State to reopen its case and supply the missing proof if justice so requires. Walker v. State, 318 Ark. 107 , 883 S.W.2d 831 (1994). In jury trials, the rule prevents a defense attorney from tossing out a pro forma motion for directed verdict with no missing proof in mind, and then, on appeal, arguing for the first time about some previously unknown and undisclosed missing proof. The rule ought to employ the same reasoning in providing for bench trials.

If the specific grounds are not stated in a jury trial, an “automatic waiver occurs” on appeal. Cummings v. State, 315 Ark. 541 , 869 S.W.2d 17 (1994). The same reasoning should apply to bench trials.

A number of foreign jurisdictions have rules comparable to Rule 36.21. The rationale for the rule is that a judge is supposed to know the elements of a crime and is supposed to know when the evidence is sufficient to prove those elements. Although, the rationale has some intellectual appeal, it lacks practical applicability. In both jury and bench trials, the judge must determine whether the proof is sufficient. In the jury trial, the judge must determine the sufficiency of the proof in order to rule on a motion for a directed verdict. In the bench trial, the judge must determine the sufficiency of the proof in order to rule on guilt. Thus, the basis for distinguishing between the two kinds of trials, as the rule currently does, lacks practical applicability. In addition, and perhaps unlike most other jurisdictions, special judges try felony criminal cases in this State, and, since they do not regularly sit as trial judges and may not be as familiar with the elements of multiple crimes and lesser offenses, they ought to be given the benefit of the specific grounds on which the evidence is insufficient. The case at bar was tried by a special judge.

As a practical matter, a criminal bench trial frequently involves multiple crimes. Last week we handed down an opinion in which the trial judge, in a bench trial, found the defendant guilty of six different felonies and revoked probation given on a prior conviction. Darrough v. State, 322 Ark. 251 , 908 S.W.2d 325 (1995) Just as in that case, a defendant at times is charged with three, four, or even more felonies, and those multiple charges will, in turn, include considerably more lesser offenses. The State, in presenting multiple counts at one bench trial, may overlook asking a question of a witness who is present, perhaps a new deputy prosecutor who forgot to ask the witness about the value of a stolen item in one of many counts, and justice would require that the State be allowed to reopen its case to ask the question if the missing evidence were disclosed by requiring specific grounds for a directed verdict. However, Rule 36.21, as presently written, does not require the defendant to state specific grounds. Thus, as the rule now stands, the deputy prosecutor may have forgotten to ask the question about value and, at the trial, no one realized it, and then months later while examining the transcript, the defense attorney discovers the defect in one of the multiple counts. Under the present rule, the attorney could argue the defect for the first time on appeal. The defendant will then go free on that count because of a defect caused by our rule and an unjust result will have been reached.

Under the rule, as it is currently written, a defense attorney might unintentionally mislead a trial court. This case provides a practical example. In the trial court, the defense attorney moved for a directed verdict on the specific ground that the fourteen-year-old prosecutrix lacked credibility and her testimony should not be believed. The deputy prosecutor responded with reasons her testimony was credible. The trial court found the defendant guilty of first degree sexual abuse of the girl and, in so doing, devoted almost all of its findings of fact to the issue of credibility; however, on appeal, the lack of credibility is not even mentioned in the sufficiency of evidence argument, the sole argument on appeal. Instead, appellant argues that the evidence below was insufficient to prove that the defendant touched the prosecutrix for sexual gratification. By our retaining a rule that allows such an unjust procedure, a defendant can gain a reversal and dismissal on a ground never presented to a trial court. The result directly contradicts our rule that we only reverse a trial court for error committed, or not corrected, by the trial court. Silvey Cos. v. Riley, 318 Ark. 788 , 888 S.W.2d 636 (1994).

For all of the foregoing reasons, I would change A.R.Cr.P. Rule 36.21 to provide that a defendant must state specific grounds for acquittal because of insufficiency of the evidence in a bench trial, just as he must state specific grounds for a directed verdict in a jury trial.

Donald L. Corbin, Justice, concurring. I concur in the affirmance of this case, but would affirm based on the procedural issue rather than on the merits. I do not agree that a defendant in a criminal bench trial should be allowed to challenge the sufficiency of the evidence on appeal when he never addressed the issue below or called it to the attention of the trial court with any specificity.

The majority is unable to reconcile Igwe v. State, 312 Ark. 220 , 849 S.W.2d 462 (1993), and Stricklin v. State, 318 Ark. 36 , 883 S.W.2d 465 (1994). Today, the majority admits that the only issue presented in Igwe, and therefore the only issue decided therein, was that a motion for directed verdict, once made at some point in a criminal bench trial, need not be renewed at the close of all the evidence in order to preserve that issue on appeal. The majority then expands the holding of Igwe to mean that the defendant in a criminal bench trial need not challenge the sufficiency of the evidence at all in order to preserve that issue for appeal. Consequently, the majority concludes that “[i]f there is no need whatever for a defendant to challenge the sufficiency of the evidence to preserve that issue for review, then it is illogical to say that, if he or she does so, he or she is bound to the specifics of the challenge and may not expand or supplant them on appeal.”

Because I disagree with the majority’s expansion of Igwe, I easily reconcile Igwe and Stricklin. The only issue presented in Stricklin, and therefore the only issue decided therein, was that a defendant in a criminal bench trial cannot challenge the sufficiency of the evidence on a particular basis below and then change the basis on appeal. That holding is no more than an application of the general rule (which remained unaffected by Igwe) that, in order to preserve arguments for appellate review, they must be presented to the trial court for a ruling — for there can be no appellate review if there is no ruling to review. Therefore, Stricklin effectively held that a defendant in a criminal bench trial must challenge the sufficiency of the evidence at some point in the trial. Such a holding is consistent with the original non-expanded holding of Igwe — that a criminal defendant need not renew a motion for directed verdict once made.

The majority’s application of the assumption expressed in Igwe that a motion for directed verdict is superfluous in a bench trial because the judge would only be directing his own verdict in a trial, the main purpose of which was to have a judge rather than a jury ascertain the sufficiency of the evidence, runs afoul of the principle that the state be allowed the opportunity to supply any missing evidence identified by the defendant. Preservation of this principle is essential to the people’s right to a fair trial — a right that should exist in both bench and jury trials. The majority’s decision today deprives the state of its right to a fair trial because it allows a defendant in a bench trial to remain obtuse and silent during the course of the trial and then possibly obtain reversal on appeal on an issue that was never identified to the trial court.

It is quite fair and reasonable to presume, as the majority does in this case, that a trial court knows the elements of a crime. However, it is unreasonable to expect the people of this state and the trial court to be subject to a trial by ambush, such as when multiple offenses with different elements are tried or when a multitude of witnesses extend the trial for several days or weeks. While this state is blessed with very capable trial judges, they are still human and susceptible to human weakness. A motion for a directed verdict should be specific so as to inform the trial court what insufficiencies are exposed by failure of proof, and to allow the trial court to reflect on the issue and give an informed decision. That is the basis upon which I wrote Stricklin and the reason I continue to support a requirement that the state be treated equally in a bench trial as well as a jury trial, in that both classes of defendants must identify the alleged insufficiency in the proceedings below when challenging the sufficiency of the evidence on appeal. Judicial economy alone would justify such a requirement. This principle is so closely related to the contemporaneous objection rule as to be the norm, rather than the exception. I would therefore affirm the judgment of conviction on the basis that the issue of the sufficiency of the evidence was not preserved for appeal.

Glaze, J., joins in this concurrence.