This appeal concerns events that transpired after this court’s initial opinions in this case, following the appeal in Williams I. See Williams v. State,
In Williams I, Williams challenged the constitutionality of § 5-54-103(b), the refusal-to-submit-to-arrest statute under which he was convicted. That statute provides in subsection (b)(3) that it is not a defense that the law enforcement officer lacked legal authority to make the arrest. In a footnote in our initial opinion, this court observed that for purposes of the appeal in Williams I, the State had conceded that the arrest for disorderly conduct was illegal due to a lack of probable cause.
We later granted rehearing, however, and a supplemental opinion was handed down. See Williams v. State,
First, the trial court was wrong in not affording Williams the opportunity to present testimony on whether probable cause existed at the time of his initial arrest. Such testimony was relevant. If probable cause did, in fact, exist, Williams’ constitutiоnal arguments are arguably preempted even if those arguments had been timely preserved. Second, the trial court compounded its error by denying Williams the opportunity to proffer testimony bearing on the probable cause issue.
Williams v. State,
On July 3, 1995, the opinion granting rehearing was handed down by this court. Following the opinion, a letter from the case coordinator for the trial court dated July 26, 1995, informed the parties that Williams’s municipal court appeal had been set for “trial” on September 21, 1995, with a pretrial conference set for September 18, 1995. Williams filed a motion for discovery on August 15, 1995. On September 6, 1995, Williams formally requested a jury trial. A second letter from the case coordinator dated September 11, 1995, advised counsel for the parties that a “hearing” is scheduled for September 18, 1995, at which time the trial court would “take up the issues raised by the Supreme Court in its opinion delivered July 3, 1995.”
At the hearing on September 18, 1995, counsel for Williams first broached to the trial court whether it intended to conduct a probable-cause hearing. The trial court responded that it did. Williams complained that he had received no notice that this was to be an evidentiary hеaring and that he wanted a jury to decide questions of fact. Fie added that he was unprepared to participate in an evidentiary hearing. The trial court responded that Williams had waived his right to a jury trial in the first trial, and, thus, a jury trial was barred by law of the case. Further, the trial court-stated that it disagreed that the case coordinator’s letters designated the proceeding as a pretrial conference. The trial court ruled that the notices to Williams were adequate and that this court had remanded the matter for a probable cаuse hearing relating to the arrest. The trial court then allowed the prosecutor to present his case on probable cause to arrest, over Williams’s objection.
University of Arkansas Police Officer Michael Daub testified about the circumstances surrounding Williams’s arrest. This testimony mirrored his testimony from the first trial, which is set out in this opinion. Counsel for Williams then informed the trial court that he was unprepared to cross-examine Officer Daub, and he requested permission to recall Officer Daub for cross-examination at a later time. The trial court ruled that this would be counsel’s only opportunity to cross-examine Officer Daub, and the trial court denied the request. The trial court did inform counsel that he could subpoena Officer Daub for later examination as part of Williams’s case-in-chief. University of Arkansas Police Officer John Reid next testified for the State. He confirmed that Williams was disorderly in his presence due to pushing, shoving, and general agitation. The State rested, and the trial court continued the probable-cause hearing until September 21, 1995 — the trial date under the case coordinator’s first notice. Williams again contended that he was entitled to a jury trial, but the trial court responded that it was for the trial court to decide whether probable cause existed, not a jury.
In a letter dated September 20, 1995, counsel for Williams reiterated to the trial court that hе was not told that there would be a probable-cause hearing on September 18, 1995, and thought it was to be a pretrial conference. Williams objected to the trial court’s jurisdiction to hold a probable-cause hearing and repeated his request for a jury trial.
On September 21, 1995, Williams moved to strike the police officers’ testimony due to insufficient notice of the hearing three days earlier. The motion was denied. Counsel for Williams candidly admitted at oral argument before this court that he made a tactical decision not to call аny witnesses at that time but decided to stand on his asserted due process violations for lack of notice. The trial court then concluded that the police officers had probable cause to arrest Williams for disorderly conduct. The substance of the court’s order is as follows:
Now on this 21 [st] day of September, 1995, comes on for hearing the Defendant, Jeffery Williams, . . . said case being an appeal from the Fayetteville Municipal Court, and said case having been appealed to the Arkansas Supreme Court, and remanded back tо this court for a determination of probable cause.
The Court having been presented with testimony, statements of counsel and sufficiently advised as to all relevant matters of law and fact, finds that sufficient probable or reasonable cause existed for the arrest оf the Defendant for violating the provisions of A.C.A. § 5-71-207 [disorderly conduct],
I. Jurisdiction to Conduct Probable-Cause Hearing
Williams first asserts that the trial court lacked authority to hold a probable-cause hearing because this court had remanded the matter for a full development of the facts, which meant a new trial. We disagrеe.
Contrary to Williams’s assertion, there is no confusion or ambiguity in the supplemental opinion granting rehearing. It is clear from our opinion that all that was necessary to resolve the issue on remand was a hearing to determine whether probable cause existed to arrest Williams initially. We stated that if probable cause did exist, “Williams’ constitutional arguments are arguably preempted even if those arguments had been timely preserved.” Williams v. State,
Williams further contests this court’s authority to remand for the limited purpose of a hearing on probable cause. As the State points out, the limited-remand procedure has been used in Arkansas in other instances. See Bell v. State,
Williams counters that this court still had no authority to grant a limited remand for a probable-cause determination. His authority for this proposition, however, is distinguishable. He first cites State v. Garrison,
Nor is the second case cited by Williams — Holt v. State,
In short, Williams cites us to no authority that militates against a remand by this court for a probable-cause determination.
II. Due Process
Williams next complains that he wаs not informed until the day of the probable-cause hearing (September 18, 1995) that evidence was to be presented. Williams may well be right that the notices to him did not sufficiently inform him that evidence was to be taken on that date. Be that as it may, this court will not reverse a trial court’s ruling in such circumstances absent a showing of prejudice. Gordon v. State,
Williаms claims that he was deprived of an opportunity to cross-examine the State’s witnesses and to rebut what they testified to with his own witnesses. We do not believe this to be so. He did have the opportunity to submit proof, including a recall of State witnesses, on September 21, 1995. He decided not to do this for tactical reasons, according to his counsel at oral argument. We will not reverse a case when the appellant could have cured an alleged defect at the trial court level and made a conscious decision not to dо so. In addition, Williams does not apprise us of what his evidence might have been. In this same vein, no proffer of that evidence was made to the trial court. See Bennett v. State,
We fail to see how Williams was prejudiced by any confusion in the notices, particularly when he wаs notified by letter dated July 26, 1995, that a trial would take place on September 21, 1995. We find no error in this regard.
III. Jury Trial
For his final point, Williams contends that he was entitled to a jury trial on the issue of probable cause. Again, we find his contention to be without merit.
Williams appears to tie his argument to his point that this court’s supplemental opinion remanded the case for a new trial. As is discussed under point I, we did not do so but remanded solely for a determination of probable cause. Furthermore, our criminal rules are clear that reasonable cause to аrrest and detain is a matter to be determined by a judicial officer. See Ark. R. Crim. P. 4.1(e). This point has no merit.
Affirmed.
Notes
Ark. R. Crim. P. 4.1(e) speaks in terms of “reasonable cause” to arrest without a ■warrant in lieu of “probable cause.” The two concepts will be used interchangeably for purposes of this opinion.