Hewitt v. State

Robert L. Brown, Justice,

dissenting. This is an important case in that it holds that an objection by defense counsel urging that a chancellor not sit as the judge in a criminal trial was not specific enough to preserve the issue for our review. With this decision, this court has become overly technical with its requirements on objections, and for that reason I dissent.

What the defense counsel did, as the majority correctly relates, is object to Chancellor McNeil’s presiding at this criminal trial on July 20, 1993, on the grounds that he was elected as a chancery judge and not as a trial judge for criminal matters. The judge overruled the objection and referred to a recent legislative act as having cured any problem relating to his authority to hear criminal cases. The colloquy between the chancellor and defense counsel is worth repeating:

DEFENSE COUNSEL: Ready to proceed, Your Honor, but on behalf of defendant Rodney Hewitt, I did want to make one motion in chambers with respect to your sitting as the circuit judge in this action, on Rodney’s behalf. And as I indicated previously — earlier, I was going to make this objection. I am filing — 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 versus State 310 Ark. 493 1992, not to the jurisdiction of the circuit court which has jurisdiction, but to your status because you are 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.
PROSECUTOR: Obviously, we oppose the motion and a transfer, and we rely upon the — rely upon the exchange agreement that was prepared after proper research in the legislation and other court rulings as prepared by the members of the bench in the Twentieth Judicial District. An, uh, I feel that that, uh — if the three sitting judges think it’s a good agreement, I think it’s a good agreement, and 1 think that it’s proper for you to hear this case.
THE COURT: Mr. Lane, as I understand it, the Legislature has cured the problem in the State of Arkansas versus Simpson during the 1992 emergency session or special session of legislature, and that the problem that would be encountered in Simpson ver— State versus Simpson is no longer an issue.

Your motion is denied.

On appeal, the appellant asserts that the chancellor’s reliance on the 1992 Act (Act 51) was error and cites three reasons:

1. Article 7, section 22 of the Arkansas Constitution does not authorize intradistrict exchanges among circuit judges and chancellors; that is a matter for the General Assembly.
2. Act 131 of 1993 establishes a circuit-chancery judge position in the 20th judicial district to be effective January 1, 1997, which complies with Article 7 of the Arkansas Constitution.
3. The voters of the 20th judicial district did not elect Chancellor McNeil to serve as a criminal judge.

The majority concludes that the appellant did not apprise the chancellor of these precise arguments and, thus, the chancellor had no opportunity to consider them. I do not agree. Point 3 was expressly raised, although the majority opinion mistakenly concludes that it was not. Points 1 and 2 are merely supporting arguments to the objection made.

For the defense counsel to have expounded on his objection any more than he did would have been akin to telling Noah about the flood. The chancellor involved in this case was well apprised of the issues involved. Indeed, Chancellor McNeil was the chancellor in the two significant cases handed down by this court which pertain to this issue: Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992) and Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). Moreover, the effort in the 20th Judicial District to enter into exchange agreements whereby chancellors and circuit judges could exchange courts no doubt was the catalyst for the passage of Act 51 of 1992 and, later on, Act 131 of 1993. In sum, there is little reason to believe that the chancellor was in any way surprised by the arguments made on appeal.

The majority holds that not only must the defense counsel make a specific objection, but counsel must cite all legal authority in favor of that objection at the time it is made. This goes too far. Surely, Chancellor McNeil was fully aware of Article 7, Section 22 of the Arkansas Constitution which was at issue in Lee v. McNeil, supra. The invalidity of Act 51 of 1992, the appellant contends, is further acknowledged and evidenced by the fact that the General Assembly subsequently enacted Act 131 of 1993, which specifically relates to the 20th Judicial District and which specifically directs that the chancery judgeship shall become a circuit-chancery judgeship with jurisdiction over law and equity cases, effective January 1, 1997. Ark. Code Ann. § 16-13-2803 (Repl. 1994). In other words, Act 131 complied with the Arkansas Constitution where Act 51 did not. That is a supporting argument which is legitimately made on appeal. Is the majority seriously contending that if authority for one’s position is found after trial, it cannot be used on appeal?

The oft-stated policy behind specificity in objections is to let the trial judge know the basis of the objection. That was done here. Had defense counsel made a general objection to the chancellor’s judging the case, the majority’s position might be more valid, but here he asserted that the chancellor had no authority to preside over a criminal trial and alluded to a case in point — Simpson v. State, supra — which involved the same chancellor. In Simpson, we refused to review the issue of the chancellor’s ability to sit on a criminal case because an objection had not been made. In this case, defense counsel said that he was making the objection which counsel failed to make in the Simpson case regarding the same chancellor’s status. Now, having made that objection, this court holds that he still had to go further and cite his supporting arguments, chapter and verse. No doubt defense counsel is now pondering whether it is all but impossible to have this issue reviewed.

The matter of the appellant’s objection is not a close question in my opinion. But assuming it was, our predisposition should be to hear the case on the merits rather than to rush to embrace a reason which has the effect of avoiding the issue. This is a pressing matter that needs resolution. At the very least we should address the appellant’s argument that the chancellor was not elected to preside over a criminal jury trial, which was expressly raised at trial. The State does not argue the merits of this case but only lack of a specific objection. I would ask for rebriefing of the jurisdictional issue by the State and consider the merits.

Newbern, J., joins.