*1 Deb- in. Lemmon said to break her door in an attempt on ing and nervous. frightened bie appeared of coun- and arguments of the record After careful review Therefore, affirm. sel, we we hold no error occurred. reversible PINE BLUFF CITY of Betty Lou GRINNING CR 94-964 Court of Arkansas 9, 1995 delivered October
Opinion *2 Howard, Jr., William M. for appellant. Bryant,
Winston Gen., J. Brent Standridge, Asst. Att’y by; Gen., Att’y for appellee. Corbin,
Donald L.
Justice.
Betty
Grinning,
Lou
Appellant,
appeals
order of the Jefferson
Circuit Court convict-
County
her of
ing
disorderly conduct and
and
refusal
submit
arrest
$500.00,
$100.00
her
fining
She raises two
respectively.
for
points
reversal of
order: that the trial court erred in over-
her
ruling
based on
Kentucky,
Batson
After voir the trial court the edification “[f]or of the jury, these charges today are misdemeanor charges, actually under the statute wе call them which non-felony, means that we can utilize to a pursuant 1993 enactment of the legisla- ture a six-person jury.” did Appellant to the utilization of a jury, six-member nor did she the challenge legislation to alluded, which the trial court Act presumably 592 of 1993. In fact, court, after the foregoing statement the by there fur- was no ther court, discussion of the jury issue the by the prosecutor, аppellant, or counsel.
On appeal, appellant argues for the first time that the Con stitutions of the United and the States State of Arkansas entitle her to be tried aby twelve-membеr jury. She relies v. Byrd upon State, 609, 317 Ark. (1994), reversal, for and 744, cites Calnan v. 310 Ark. (1992), 713, Winkle v. (1992), for the proposition that the right to trial jury is not to the subject con temporaneous objection rule such that she raise may argu this ment for the first time on appeal.
We first consider appellant’s argument to pursuant the United States Constitution. The United States Court has held that a twelve-member is not a panel necessary ingredi ent of the Sixth Amendment right by made jury, applic able to the states through Fourteenth Amendment. Williams Florida, 78, (1970). 399 U.S. 86 The United States Court of for the Appeals Circuit Eighth applied hоlding Williams 48 stated,
criminal in no prosecutions state courts is “[t]here binding federal rule the state to use a twelve-member jury courts in state criminal courts are bound their prosecutions. by statе Lockhart, own sets 420, criminal rules.” Vinston v. 850 procedure F.2d was in court appellant As tried state for crime, state there no federal here. presented issues we turn Accordingly, apрellant’s argument pursuant Const, Arkansas Constitution. relies on Appellant primarily 7, 2, cases, art. in criminal consistently by applied § which states in “The pertinent jury of trial shall part: inviolate, law, remain and shall extend to all cases at without regard to the in amount but a trial controversy; jury may be waived by the parties all in the manner cases prescribed by law[.]” tried,
After was but appellant before this appeal us, 609, Byrd, submitted to this court decided 435, in which this court held that Act 592 of cod 16-32-202, 1994), ified at Ark. Code Ann. -203 which (Repl. §§ for a provides persons non-felony six cases at the Cоnst, discretion, judge’s violated Ark. art. 7. This court § Byrd stated in art. guarantee of defendant’s right § to a meant the right to be tried aby twelve-member and that such right must be waived the defendant “in Thus, manner prescribed by Byrd law.” Court concluded that Act 592 violated art. effectively eliminating *4 requirement and the matter to the leaving judge’s discretion. unconstitutional,
Since Act 592 was declared sections lb- 32-202 and -203 rеmained they viable as existed to the prior 614, 609, 435, enactment of Act Byrd, 592. 317 Ark. 879 S.W.2d 592, 438. to Prior Act section by 16-32-202 for trial provided of jury less than twelve only members the upon agreement of Rules parties. 31.1 31.5 thrоugh of the Arkansas Rules of Crim- inal Procedure establish the a process by may which defendant rules, waive trial right by his to jury. According to those except court, in misdemeanor cases wherе fine a is the only imposed by a defendant waive right must his either in personally writing in open court and the waiver the must be assented to by prose- court; cutor and approved by the a verbatim record the of waiver is required.
Our case law has been clear a century for more than
49
right
denial of the
failure to
to the
a defendant’s
that
of that
Warwick
right.
not constitute a waiver
trial
does
by jury
State,
568,
trial
every
2
335
In
criminal
47
S.W.
v.
Ark.
proceed
the court should
by
is
to trial
right
jury,
where there
trial,
it is the court’s burden
if there will be a
waiver,
that,
her
defendant waives
if
to be a
the
there is
ensure
Constitu
in accordance with the Arkansas
to trial
right
by jury
744,
Calnan,
Ark.
310
Criminal Procedure.
tion
Rules of
short,
in the
case
there
no waiver
this
The stаte contends that appellant the state’s reject her review. We must argument for appellate The facts on the of the Winkle case. argument basis responsive In both remarkably present Winkle similar to the case. cases, neither nor their counsel appellants objected Winkle, that right. violation of their In this court stated case, denial of the to trial in a criminal without by jury right law, is a error for accordance with the serious requisite intervene, which trial court should and is therefore an excep Winkle, tion to the 713, 717, rule. 310 Ark. contemporаneous objection 589, v. Wicks (citing (1980)). The state Winkle distinguishable pre- contends is from involved a trial sent case because it bench trial instead of a We find jury. Byrd affirming forecloses the possibility Byrd сase based on unequiv- the state’s asserted distinction. states that art. that the to trial ocally clearly right contemplates Byrd, a twelve-member jury. means 609, 612, 879 S.W.2d 437. The state cites Ford
(1953), in of its cоntention that support contemporaneous true, rule to this It is as the state con- case. applies tends, that did of the twelve-member dispose jury argument Ford However, rule. by aрplying contemporaneous objection error, an invited inas- rule was in Ford context of applied *5 being much Ford failed to tried only members, than in to be so of less twelve but agreed open There agreement tried. no such appellant present case. two civil Finally, cases cited state as incon- sistent with the result we reach today not so. In Venablе v. Becker, (1985) and Mode v. Bar- nett, (1962), this court found that law; valid waivers occurred the manner prescribed by specif- ically, in the manner ARCP Rule prescribed by 38 and the for- mer statute which Rule 38 Ark. Stat. Ann suрerseded, 27-1743.
Therefore, conclude, waiver, we given absence of a appellant’s argument that she was denied her by jury bemay raised without a contemporaneous objection. We are well aware of the view by the state that expressed some abuse of criminal justice system could result from our construction of the Arkansas Constitution and the Arkansas оf Rules Criminal Pro However, cedure. as the Arkansas Court of Appeals recently and observed, accurately bemay “this price judicial system must pay ensure that a defendant is not fun dеprived his damental constitutional right to a trial by jury.” Reaser 7, 11, 47 Ark. App. (1994). 883 S.W.2d As for appellant’s Batson argument, we first observe that the record is insufficient to demonstrate error. We do not error, presume and it is therefore burden to produce a record sufficient to demonstrate error. Sutherland v. The record on is con appeal fined to that which is abstracted. Id. The failure of the record to demonstrate error is due to the lack of perhaps attention that was given the Batson challenge by the parties and the trial court. Appellant’s counsel created confusion by the term using “jury pool” loosely. record does not clearly indicate whether coun sel was referring to the venire or the petit jury that tried this cаse. The prosecutor’s proffered racially-neutral explanation “past performance” is painfully lacking detail. The trial court’s cursory disposition of appellant’s challenge completely over looked one juror the state had struck. Most importantly, the record does not disclose the total number of African-American jurors in venire, thе number of African-Americans who were seated on the petit jury, and whether any questions were asked voir during dire, be they racially-based or racially-neutral. reversed,
The order of conviction is and the case is remanded for a new trial. *6 JJ.,
Jesson, C.J., dissent. Brown, Glaze Justice, relies on Calnan dissenting. Grinning Glaze, Tom (1992) and Winkle v. Ark. (1992) that the arguing Both I disagree. rule is inapplicable. objеction contemporaneous was provided. in which no jury involve cases Calnan and Winkle con- exception relied in on an The court in Calnan part rule, when an exception which allows for temporaneous motion to correct seri- intervene on its own a trial court should absence of a jury; error was the total ous error. serious here. In both Win- bеfore us is not the issue case simply had whether there been and Calnan an issue addressed was kle does The issue here simply a waiver of the to a trial. We affirm. so far. should go Jesson, C.J., J., this dissent. join Brown, Arkansas
Everett L. KING v. STATE of CR 94-1205 Court of Arkansas delivered October
Opinion