dissenting. While I agree with the majority’s decision to reverse the appellant’s conviction due to the insufficiency of the evidence, I dissent from its remand to the trial court for a new trial because the appellant will thereby be twice placed in jeopardy. There are two bases for my conclusion. First, our conclusion that the evidence was insufficient should have ended the analysis because this finding is equivalent to acquittal by the trial court. Secondly, the majority opinion glosses over a procedural error, i.e., the State’s failure to object to the appellant’s untimely suppression motion, which resulted in its failure to preserve for appeal the issue of whether trial error was committed.
Double jeopardy considerations must be addressed when retrial of a criminal defendant arises, and the United States Supreme Court’s decisions have foreclosed the disposition of this case arrived at by the majority. It was held in Burks v. United States, 437 U.S. 1 (1978), that an appellate court’s determination that the evidence is insufficient for conviction is tantamount to a verdict of acquittal. Consequently, a State cannot retry a defendant whose case is reversed by a State appellate court because of the insufficiency of the evidence. Greene v. Massey, 437 U.S. at 25 (1978). The same day the Supreme Court decided Burks, supra, it held in Sanabria v. U.S., 437 U.S. 54 (1978), that even when an erroneous exclusion of evidence causes the insufficiency of evidence, retrial is barred.
In summary, when the defendant’s case is reversed .on appeal, retrial is barred by the rule against double jeopardy if the reversal is based upon insufficiency of the evidence, but retrial is not barred if it is based upon procedural error. S. Singer and M. J. Hartman, Constitutional Criminal Procedure Handbook, § 16.23 at 590 (1986). Because the case at bar was reversed due to insufficiency of the evidence, retrial is barred and the case should be dismissed regardless of whether the trial court’s exclusion of the appellant’s statement that he was driving was erroneous.
Arkansas has followed this reasoning. In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), our Supreme Court held that, when the sufficiency of the evidence is at issue, it must be addressed before any question of trial error may be decided. The Court of Appeals specifically held in Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990), that an appellate court may not affirm a conviction by considering evidence which the jury did not hear when sufficiency is at issue. Thus, when evidence is excluded it may not be considered on appeal.
Nevertheless, the majority relies on Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991) (supp. op. Oct. 14, 1991), in which our Supreme Court ruled that when the State offers sufficient evidence and a portion of it is erroneously excluded, the defendant may be retried without offending the right against being placed twice in jeopardy. The supplemental opinion in Crutchfield, supra, reversed the Court’s decision to dismiss, relying on dictum from an Illinois case, Webster v. Duckworth, 767 F.2d 1206 (7th Cir. 1985). Webster did conclude that the double jeopardy clause barred a second trial; however, the majority in Crutchfield relied on dictum in which the Illinois Court distinguished a hypothetical scenario where the first jury should have acquitted on the evidence it heard, unlike Burks, where acquittal was based on all the prosecutorial evidence initially presented. In my opinion, the portion of the Webster opinion relied on has little or no precedential value.
In the case at bar, the majority’s analysis finds the evidence insufficient in accordance with Harris v. State, supra, disregards the import of that conclusion, and continues to determine whether Crutchfield applies by “first [deciding] whether the trial court erred in excluding” the statement. “Trial error,” in the double jeopardy analysis, clearly means error which prejudices the defendant, not the State. Burks, supra, at 15, Accordingly, because the evidence was insufficient, the case should be reversed and dismissed; but even if the analysis were continued, no “trial error” was committed as only the State may have been prejudiced.
A second basis for dismissal is that the State failed to preserve for appeal the issue of whether the statement by the appellant that he was driving should or should not have been suppressed. Rule 16.2 of the Arkansas Rules of Criminal Procedure provides that objections to the use of evidence, including confessions or admissions of a defendant, shall be made by a motion to suppress evidence filed no later than ten days before the date set for trial unless good cause is shown by the moving party. The appellant did not file a pretrial motion to suppress admission of the statement, but instead moved to suppress it on the day of the trial, offering no explanation for the untimeliness of the motion. The State did not object.
Had the appellant adhered to Rule 16.2, the State would have had the opportunity to bring an interlocutory appeal from an order suppressing the confession under Ark. R. Crim. P. 36.10. Proceedings in the trial court would have been stayed pending the determination of the State’s appeal which is especially significant to the State because an interlocutory appeal cannot be taken by the State after jeopardy attaches, i.e., after the jury is sworn in a jury trial, or after the court begins taking evidence at a bench trial. State v. Glenn, 267 Ark. 501, 592 S.W.2d 116 (1980). As a result of the State’s failure to object, it waived any right to an interlocutory appeal.
The manner in which the State’s assertion of trial error came before the appellate court for review in Crutchfield is not apparent from the opinion, but it is clear that the Supreme Court did not hold that the appellate court in a criminal case was required to address, for the first time on appeal, an assertion of trial error made by the State in the absence of an interlocutory appeal. By addressing the asserted error, the majority has essentially allowed the State to cross-appeal without filing a notice of appeal in accordance with Ark. R. Crim. P. 36.10(b), and even if this procedure were correctly followed, the disposition of this case would not be changed. “In all such cases, regardless of the decision in this Court, the trial had below is a bar to any subsequent trial of the accused for the same offense, the only possible result of the appeal being a ruling by us on questions of law that might serve as a guide in future trials. State v. Harvest, 26 Ark. App. 241, 762 S.W.2d 806 (1989).
It is a fundamental rule in Arkansas that an assertion of error will not be considered on appeal in the absence of an appropriate objection in the trial court. This rule is applicable to the State, as well as to criminal defendants. See State v. Houpt, 302 Ark. 188, 788 S.W.2d 239 (1990). The issue of whether the statement’s exclusion was erroneous was not properly preserved and therefore, the State may not be heard to complain when it raises issues for the first time, on appeal.1
Danielson, J., joins in this dissent.
As recently as January 21, 1992, the Arkansas Supreme Court reaffirmed its holding in Harris, supra, by stating that “[w]e review the sufficiency of the evidence prior to the consideration of the other asserted trial errors because, if the evidence is insufficient, the other asserted errors do not matter.” Swanson v. State, 308 Ark. 28, 823 S. W.2d 812 (1992).