dissenting. The majority acknowledges that the right to a twelve-person jury is a fundamental right guaranteed by Ark. Const, art. 2, § 7 and that this right to a twelve-person jury is “inviolate.”
Our supreme court in Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995), discussed the court’s decision in Byrd v State, 317 Ark. 609, 879 S.W.2d 435 (1994), in which the court held that Act 592 of 1993, codified at Ark. Code Ann. §§ 16-32-202 and 16-32-203 (Repl. 1994), which provides for a jury of six persons in non-felony cases at the judge’s discretion, violated Ark. Const, art. 2, § 7. The court stated in Byrd that the article 2, § 7 guarantee of a defendant’s right to a jury trial meant the right to be tried by a twelve-member jury and that such right must be waived by the defendant “in the manner prescribed by law.” Byrd, 317 Ark. at 611, 879 S.W.2d at 436.
The manner proscribed by law for waiver of the right to a jury trial is found in Ark. R. Crim. P. 31.2, which provides:
Should a defendant desire to waive his right to trial by jury, he may do so either (1) personally in writing or in open court, or (2) through counsel if the waiver is made in open court and in the presence of the defendant. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury in person or through counsel shall be made and preserved.
The provision providing for waiver through counsel was added to memorialize the holding in Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993). In Bolt, the supreme court held that “while a defendant who desires to waive his right to a jury trial under Rule 31.2 must do so either in writing or in open court, his or her attorney may also make such a waiver so long as the defendant has acknowledged he or she had been informed of the right and the attorney waives the right in open court, on the record and in the defendant’s presence.” Id. at 390, 862 S.W.2d at 843 (emphasis added). Because the court found that Bolt had indisputably been informed of his right to a jury, acknowledged it, and was present in open court when his attorney waived the right on the record, his waiver was valid.
Unlike Bolt, nothing in the record in this case can support a finding that Marshall acknowledged that he had been informed of the right to a twelve-person jury and that his attorney waived that right in open court. The majority holds that appellant agreed “to try this case to these twelve or their survivors,” explaining that this means that he agreed, through counsel, “to the no alternate procedure with the inherent possibility of a verdict by less than twelve.” The problem with the majority’s analysis is that there is no indication this “no alternate procedure” with its “inherent possibility” was explained to Marshall so that he could knowingly waive his right to a twelve-person jury or agree to try this case to less than twelve jurors. The right to trial by jury is a “fundamental constitutional right.” Grinning, 322 Ark. at 50, 907 S.W.2d at 692. Counsel’s consent to “try this case to these twelve or their survivors” is simply insufficient to meet the requirements for a knowing, intelligent, and voluntary waiver in the manner prescribed by law.
The defendant did not acknowledge he had been informed of the right to a twelve-person jury, and the question by the trial judge was insufficient to apprise Marshall that his attorney was agreeing to try the case to something less than the jury he is guaranteed by the Arkansas Constitution. Anything less than a knowing, intelligent, and voluntary waiver of a fundamental right is not a waiver. Burrell v. State, 90 Ark. App. 114, 204 S.W.3d 80 (2005). Whether there was an intelligent, competent, and self-protecting waiver of a jury trial by an accused must depend upon the unique circumstances of each case. Adams v. United States ex rel. McCann, 317 U.S. 269 (1942). A waiver is the intentional relinquishment of a known right. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992); McCoy v. State, 60 Ark. App. 306, 962 S.W.2d 822 (1998). For a waiver to exist, there must be a voluntary abandonment or surrender, by a capable person, of a right known by him/her to exist, with the intent that such right shall be surrendered. McCoy, supra. The waiver of the right to trial by jury must be knowingly, intelligently, and voluntarily made, and such must be demonstrated on the record or by the evidence. Id. It is not required that such a waiver be accompanied by the advice of an attorney before a decision to waive a jury trial in order for that waiver to be “intelligent.” But, the view is generally taken that such a waiver must rest on an adequate preliminary statement of the trial court delineating the rights of the accused and the consequences of the proposed waiver with the implication, at least tacit, that the accused should reasonably comprehend his position and appreciate the possible effects of the choice. Maxwell v. State, 73 Ark. App. 45, 41 S.W.3d 402 (2001).
The majority judges conclude that Marshall invited error in this case. They are wrong. The defendant has no obligation to select jurors for the State. The defendant is not responsible for the misconduct of potential jurors in answering questions on voir dire. The defendant has no duty to ensure that his trial is conducted in accordance with the Arkansas Constitution. The defendant has no duty to demand a trial by jury. Davis v. State, 81 Ark. App. 17, 97 S.W.3d 921 (2003). Instead, it is the trial court’s duty to ensure that, if there is to be a waiver, the defendant waives his right to trial by jury in accordance with the Arkansas Constitution and the Rules of Criminal Procedure. Maxwell, supra; McCoy, supra.
Appellant was convicted by an eleven-person jury. Appellant did not waive his right to a twelve-person jury.
I would reverse.