dissenting. I respectfully dissent for two reasons. First, I depart with the majority’s view that the record does not reflect that the appellant was so intoxicated that he was unable to stand trial. The appellant had registered. 19 on a breathalyzer test just before the trial, which is an objective indication of appellant’s intoxicated condition. Despite the officer’s testimony, the fact that they were even prompted to test the appellant is particularly revealing on this question. I also cannot agree with the characterization of appellant’s testimony as being “clear, precise and candid.” In my view, his testimony reflects a high degree of confusion, and is replete with instances of contradiction, beyond that normally displayed by a defendant on trial and when subjected to the rigors of cross-examination. On the whole, his testimony was damaging to his defense, in which appellant claimed that the undercover officer had mistaken him for someone else. In this regard, the credibility of the appellant as opposed to that of the officer was crucial. While the majority does not deny that appellant was intoxicated, I believe the record objectively demonstrates that he was so impaired as to be unable to fully understand the proceedings of or effectively participate in his defense, and that ultimately he was prejudiced by having to go forward with the trial. I cannot improve upon the eloquence of the supreme court in Taffe v. State, 23 Ark. 36 (1861), wherein it stated:
If the intoxication of a juror be sufficient cause for discharging a jury: If a court, upon discovering the intoxication of a material witness, should adjourn it till the witness becomes sober, or if necessary, defer the trial a term, certainly the intoxication of a defendant on trial for his liberty should be deferred by the court, upon discovery of the fact during the trial; or if not brought to its notice till a verdict was rendered, that should be set aside.
Id. at 38. (citations omitted.)
Secondly, rather than relying on the subjective impressions of the police officers who testified, I believe that the better course for the trial court, when confronted with this question, would be to examine the defendant personally in order to evaluate his fitness to stand trial. To await the progress of trial for decision on this matter, without first addressing the defendant, is akin to putting the cart before the horse, so to speak. In sum, I believe that the trial court should have granted appellant’s motion for a continuance, and that this cause should be reversed and remanded for a new trial.
SUPPLEMENTAL OPINION ON DENIAL ON REHEARING APRIL 10, 1991
Darrell F. Brown and Assoc., by: David O. Bowden, for appellant.
Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
Per Curiam. Appellant has filed this petition for rehearing contending that our original opinion is flawed. He argues that we erred in holding that he had failed to preserve the issue of ineffective assistance of counsel since, he argues, “the record is devoid of any proceeding on the record indicating that the personal advisment [sic] of the appellant as to his right to allege ineffective assistance of counsel was ever carried out by the trial court.” See Ark. R. Crim. P. 36.4. We deny the petition.
Initially, we note that appellant failed to raise any such alleged failure by the trial court in either his original brief or his reply brief, despite the State’s contention in its brief that he had failed to preserve the issue of ineffective assistance.
In any event, we find that the record does show that appellant was informed of his rights under Rule 36.4. That rule requires that the admonition as to ineffective assistance of counsel be given at the time sentence is imposed. Here, the record furnished us ends with the reading of the jury’s verdict. It does not contain a transcript of appellant’s formal sentencing by the court. However, the judgment and commitment order recites that appellant appeared before the court personally and through his attorney and was informed of both his right to appeal and his right to assert ineffective assistance of counsel. Under these circumstances, in the absence of something in the record showing the contrary, it will be presumed that the court did its duty according to the rule and as recited in the order. See Coleman v. State, 257 Ark. 538, 518 S.W.2d 487 (1975).