dissenting. I would reverse the appellant’s convictions for resisting arrest and driving on a suspended driver’s license and remand for a new trial on those charges.
The majority opinion concedes that the appellant objected to the trial court’s bifurcation of the guilt and punishment phases of the trial on these charges. Moreover, the majority opinion does not contend that there is any legislative statute or judicial rule which authorizes such procedure.
To justify the procedure used in this case the majority opinion points out that our supreme court held in Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985), that the trials of felony DWI cases should be bifurcated into guilt and punishment phases so that the jury would not know of previous DWI convictions before determining the guilt issue in the case being tried. Therefore, the majority opinion says, “We believe the same rationale would apply to protect a defendant from possible prejudice in a DWI 2nd trial.” This, however, does not answer the argument made by the appellant in this appeal. On pages 32-33 of appellant’s brief he states:
At the time Appellant was tried for the misdemeanor charges of resisting arrest and driving on suspended driver’s license, both misdemeanors, the proper procedure would have been for the Court to instruct the jury to find guilt or innocence and fix punishment the first time they retired to deliberate. This is exactly what Appellant requested.
Turning to appellant’s abstract, at page 14 of his brief, I find where he told the trial court:
Now I think it would be inappropriate to give them just a guilty or not guilty on the DWI; but on the other two, they are not bifurcated so they should already have the benefit of knowing what the punishment is and they should decide guilt or innocence and the punishment for the two offenses that aren’t DWI’s. I don’t think you can bifurcate the other two offenses.
It therefore seems clear to me that the appellant raised the same question in the trial court that he argues on appeal, but the majority opinion says the argument on appeal “is not the same specific argument he raised before the trial court.” The majority opinion does not contend that the appellant did not use the words I have quoted above; the majority opinion deals with what it views as the appellant’s “concern.” It states that “appellant’s concern revolved around the possibility that he could be prejudiced during the sentencing phase for DWI 2d because the jury might sentence him to more time on the other two misdemeanor charges after the jury learned of appellant’s prior DWI conviction.”
It is true that the appellant did tell the trial court that this was a way in which he could be prejudiced by the bifurcation of his trial on the charges of resisting arrest and driving on a suspended driver’s license. However, he also told the trial judge that “I don’t think you can bifurcate the other two offenses. I just don’t think the law allows for it.” Furthermore, as it turned out, the procedure used by the trial court — unauthorized by statute or rule and over appellant’s objection — resulted in the opportunity for those jurors who wanted to find him guilty of DWI to vote for more punishment for the other two offenses than they would have if he had been found guilty of DWI.
The scenario that appellant described to the trial judge was only slightly different than the one actually played out. The majority opinion thinks the appellant “is simply speculating that he was prejudiced” by the bifurcated proceedings but faults him for not speculating correctly about the exact scenario that could cause him prejudice. Also, the majority opinion says that the $500 fine and two weeks in jail fixed by the jury were “minimal.” Apparently the appellant — who must pay the fine and serve the time — regards the sentence so harsh that he has appealed. And while I have no way to scientifically measure the prejudice to appellant, it is difficult for me to believe that those jurors who wanted to convict appellant for DWI were completely able to fix his punishment for the other two offenses without giving some thought to the fact that he was not getting any punishment for the DWI of which they thought he was guilty.
The state’s brief in this case recognizes that Holt v. State, 300 Ark. 300, 778 S.W.2d 928 (1989), stated that in an appropriate case it would decide whether its decision in Peters v. State, supra, was sound. But regardless of whether that decision was sound, the appellant in the present case is not complaining of the bifurcation of the DWI charge. The appellant in this case contends that it was error to bifurcate his trial on the other two charges. Although the majority opinion suggests that the procedure used by the trial judge protected appellant from “possible prejudice,” I do not think this was factually true in this case and do not think we should approve the trial court’s use of an unauthorized procedure to submit, over appellant’s objection, his case to the jury.
I am authorized to state that Judge Cooper joins in this dissent.