Hewitt v. State

Robert H. Dudley, Justice.

Appellant was convicted of second degree murder and sentenced to twenty years imprisonment. This court took appellate jurisdiction because appellant’s arguments in his brief draw into question the interpretation of an act of the General Assembly, the Constitution of Arkansas, and the United States Constitution. See Ark. Sup. Ct. R. l-2(a)(l) & (3). However, the constitutional and statutory issues were not raised below and therefore are not preserved for appeal.

Appellant was charged and convicted in the Circuit Court of Faulkner County which is a part of the Twelfth Judicial Circuit. The Honorable Andre McNeil is a duly elected chancery and probate judge of the Twentieth Judicial District and presided over appellant’s jury trial in circuit court pursuant to a statute that allows circuit and chancery judges within the same geographically defined circuit or district to temporarily exchange circuits and districts. See Ark. Code Ann. § 16-13-403 (Repl. 1994); see also Survey of Legislation: 1991 Arkansas General Assembly, 14 U. Ark. Little Rock L.J. 727, 829-30 (1992).

At trial, appellant objected to Judge McNeil’s “status as the trial judge,” arguing that only a “person whose status is that of a duly elected circuit judge” can properly preside over a felony criminal trial. The trial judge overruled the objection by stating that a 1992 Act removed any doubt about the validity of his presiding over the trial. Appellant did not argue to the trial court that the 1992 Act, or any other act, constituted an unconstitutional delegation of legislative authority. He did not assert that there was a conflict between sections 16-13-403 and -2803 of the Arkansas Code Annotated of 1987. He did not apprise the trial judge that he was contending the voters might have been misled when they elected chancellors and probate judges. Yet those are the arguments he seeks to raise in this appeal. His objection was as follows:

lam... objecting to your status as the trial judge, the circuit judge, in this action. And, specifically, I’m wanting to raise and make the objection that the attorney failed to make in Simpson v. State, 310 Ark. 493 (1992), not to the jurisdiction of the circuit court which has jurisdiction, but to your status because you are the duly elected, serving, and acting chancellor and probate judge and not a circuit judge. And on behalf of my client, I ask that the trial of this matter be transferred to the jurisdiction of a duly elected circuit judge, or to a person whose status is that of a duly elected circuit judge.

The trial court denied the motion, stating that the “problem in State of Arkansas versus Simpson” was cured by the Legislature during its 1992 special session and that the question presented in Simpson was no longer an issue. Appellant made no argument that the 1992 Act was invalid.

A brief background will assist the reader in understanding both the nature of the objection that was made and the trial judge’s ruling. In Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992), the case cited by appellant in his objection, Simpson argued on appeal that the chancellor that presided over his criminal trial lacked “subject matter jurisdiction to do so.” Id. at 499, 837 S.W.2d at 478. He did not make an argument challenging the chancellor’s authority to hear his case. We held that his challenge to the authority of the sitting judge was not preserved for appeal, as such an argument is not a question of subject matter jurisdiction and, consequently, must be raised before the trial court to be properly preserved. Id. In another decision earlier that'year, Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992), we considered a challenge to the authority of a chancellor to try a criminal case under an exchange agreement and held that there was no legislative authority for chancellors and circuit judges within the same district to hold court for each other. On those grounds, we granted a request for a writ of mandamus to direct the judge to refrain from that action. Id. at 119, 823 S.W.2d at 840. In response to the “substantial doubt [which had arisen regarding] the legality” of such exchanges, the General Assembly at its 1992 Extraordinary Session passed Act 51, which amended section 16-13-403 of the Arkansas Code Annotated of 1987 to expressly provide for chancellors and circuit judges within the same districts and circuits to enter into temporary exchange agreements. See Acts of 1992, No. 51 § 7 (emergency clause); see also Survey, supra at 829-30. The narrow question of legislative authority which we considered in Lee was thus rendered moot.

The question appellant presented to. the trial court is the same as the one presented in Lee, but after Lee, the General Assembly enacted Act 51 of the Extraordinary Session of 1992. However, for the first time on appeal appellant attempts to dispute the validity of the 1992 Act. First, he asserts that section 16-13-403 of the Arkansas Code Annotated of 1987 is an unconstitutionally improper delegation of lawmaking authority to a judicial branch. Second, he argues that this section was superseded by Act 131 of 1993 (codified at Ark. Code Ann. § 16-13-2803 (Repl. 1994)). Effective January 1, 1997, Act 131 will change the position that Judge McNeil currently holds into a circuit-chancery judgeship having jurisdiction in law, equity, and probate. See Ark. Code Ann. § 16-13-2803(d). Appellant contends that, through the passage of Act 131, the General Assembly intended to void the exchange agreements authorized by section 16-13-403; thus, Judge McNeil cannot legally preside over criminal actions until 1997. Finally, he argues that section 16-13-403 permits chancellors to discharge particular judicial duties which they were not elected to perform. These arguments were not presented to the trial court and were not preserved for appeal.

The requirement that a defendant in a criminal case make a specific objection at trial in order to preserve his argument on appeal is well established. See Terry v. State, 309 Ark. 64, 826 S.W.2d 812 (1992); Swanson v. State, 308 Ark. 28, 823 S.W.2d 812, (1992); Brooks v. State, 256 Ark. 1059, 511 S.W.2d 654 (1974). A specific objection is one which apprises the court of the particular error to which the party complains so that the trial court can have the opportunity to correct the error. Brooks, 256 Ark. at 1063, 511 S.W.2d at 656. It is also well settled that a party cannot change the basis of argument on appeal. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993); Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). Appellant’s argument at trial did not apprise the trial court of the arguments he now makes on appeal. Thus, we do not reach the arguments and, accordingly, affirm the judgment of conviction.

Affirmed.

Newbern and Brown, JJ., dissent.