dissenting. Four weeks ago, the majority court, in an illegal-drug case, State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), overruled this court’s long-settled case law, King v. State, 262 Ark. 342, 557 S.W.2d 387 (1977), and Ark. Rule Crim. P. 11.1, to hold that the search of the residence of a suspect who consents to that search is invalid unless the law enforcement officer says the words, “You may refuse to consent.” Because the officers in State v. Brown failed to mention those words, the majority court upheld the suppression of all the evidence ofmethamphetamine or contraband discovered in the suspects’ residence.
Today, this court is confronted with a murder case. This majority court overturns the trial court’s decision to suppress inculpatory evidence against the suspect/defendant, Carl Allen Johnson, because the officers did not inform Johnson that he could refuse to consent to a search. At the time of this search, the law did not require officers to give Johnson such a statement. The three officers testified that, when they approached Johnson’s residence (a motel room), they identified themselves as police officers, told Johnson they had information about the murder victim, and requested, without any show of force or coercion, to search his room. The officers made their approach during daylight. The officers said that Johnson invited them into the room and consented to the search. No evidence was offered to contradict the officers’ testimony. After hearing this uncontroverted testimony, the trial court denied Johnson’s motion to suppress, finding the search was voluntarily and consensually given by Johnson.
If this court applied the consensual-search law it established in King v. State and incorporated and adopted by this court in Rule 11.1 of the court’s criminal rules of procedure, it would affirm the trial court’s ruling to deny suppression of the incriminating evidence against Johnson found in his motel room. Under Arkansas law and the Fourth Amendment, it was the trial court’s duty to hear evidence and testimony of the parties to determine from the totality of the circumstances if Johnson’s consent was voluntary, keeping in mind that it is the State’s burden to prove Johnson’s consent was voluntarily given by clear and positive proof. See Scheckloth v. Bustamonte, 412 U.S. 218 (1973).
The State indisputably met its burden in the present case. Even so, because the officers failed to advise Johnson that he could refuse to consent to a search of his motel room, the majority court, under its newly adopted interpretation of Ark. Const, art. 2, § 15, must reverse the trial court’s ruling and suppress damning evidence bearing on his role in the victim’s murder.
In a case like this one, where the evidence at the trial court’s hearing on Johnson’s motion to suppress clearly shows Johnson freely gave his consent to search, it appears somewhat inane to require this court to reverse the trial court’s decision merely because the officers failed to inform Johnson that he had the right to refuse their request to search. This court, until now, has utilized a sound and reasonable procedure under the Fourth Amendment to protect people against illegal searches and seizures. Without any showing that the Fourth Amendment and this court’s Rule 11.1 fail to protect our citizens, the majority court has adopted a rule that can be misused and employed to reach an absurd result like the case now before us. Because there is no reason shown why this court should change Arkansas’s search-and-seizure law, I would follow Arkansas’s well-settled law and affirm the trial court’s decision.
Dickey, C.J., joins this dissent. Ray Thornton, Justice,dissenting. I write separately to stice, no precedent in the State of Arkansas for the holding of the majority opinion affirming the conviction of Ms. Woolbright while reversing and remanding the conviction of Mr. Johnson. I would hold that the implementation of a dual-jury procedure in this case is a violation of appellants’ right to a jury trial. Therefore, I respectfully dissent.
I. Prohibition against dual juries
The majority “condemnfs] the practice and prohibits] the use of dual juries until such time as a rule has been implemented to specifically address the practical considerations necessary for safeguarding the defendants’ rights.” The majority holds that the trial court erred in failing to suppress evidence obtained against Mr. Johnson in a warrantless search and reverses his conviction. However, the majority then affirms the conviction and life sentence imposed upon Ms. Woolbright in the same dual-jury trial. This outcome is an untenable and prejudicial result of an unauthorized procedure.
Ms. Woolbright’s life sentence is affirmed, notwithstanding her objection to a dual-jury procedure, even in the face of our own Ark. Sup. Ct. R. 4-3(h) requiring us to examine all “objections, motions, and requests” that were decided adversely to Ms. Wool-bright. Id. Here, Ms. Woolbright should have the benefit of the majority’s conclusion that this court “prohibit^] the use of dual juries until such time as a rule has been implemented.” I believe the procedure was not authorized before today’s decision, and that Ms. Woolbright’s conviction and sentence should be reversed, and her case should be remanded for a new trial.
II. Severance
The right to jury trial is established by both Article 2, Section 7, of the Arkansas Constitution and the Sixth Amendment to the United States Constitution. We have adopted Arkansas Rule of Criminal Procedure 22.3 to determine under what circumstances severance may be ordered. The rule provides:
(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court shall require the prosecuting attorney to elect one (1) of the following courses:
(i) a joint trial at which the statement is not admitted into evidence;
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or
(iii) severance of the moving defendant.
(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of defendants].]
Id.
With regard to the issue of severance, we stated in Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995):
Rule 22.3 of the Arkansas Rules of Criminal Procedure gives the trial court broad discretion in determining whether to grant or deny a motion to sever. Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991).We have also defined the test in deciding a severance motion and the factors to be weighed in assessing it:
The issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against the other.
Cloird v. State, 314 Ark. 296, 301, 862 S.W.2d 211, 213 (1993). Rockett, supra.
The effect of a severance order has been precisely articulated in Palmer v. State, 213 Ark. 956, 214 S.W.2d 372 (1948), when we considered the effect of severance on two severed trials arising from the same criminal acts. We stated:
When a severance is granted, the trial against each defendant [Palmer and Hamm] proceeds entirely independently of the other. The record of the trial in the case of State v. Hamm is not before us; and we have no information as to what particular facts and defenses were presented in that case. Palmer has not tendered us, either by supplemental bill of exceptions or otherwise, the record in Hamm cases: so, we do not know Hamm’s mental condition or any other factor that might have appeared in evidence in that case to cause the jury to find him guilty or to fix his sentence at life imprisonment.
Palmer, supra. In Palmer, we concluded that the imposition of a death sentence against Palmer was not subject to attack on the basis that Hamm had only received a sentence of life imprisonment. Id.
A severance such as that ordered in the case sub judice was erroneously modified to permit a dual jury after severance was ordered. The trial court abused its discretion by allowing the imposition of the dual-jury procedure, notwithstanding that appellants’ motion for severance had been granted. At issue at the hearing on the motion for severance on August 22, 2002, was whether statements, which were made by Ms. Woolbright concerning an alleged confession made by Mr. Johnson, would be redacted. The majority opinion has concluded that the evidence obtained in Johnson’s hotel room should have been suppressed, and the question of redacting Ms. Woolbright’s statements is in limbo. Reflecting the confusion, I note that the prosecutor favored severance when he stated:
[T]he case is set for trial I think in about two weeks and we are getting close in time. Basically the situation is that if the court determines after seeing the redacted statement that it is not sufficient under the law to protect the rights of Mr. Johnson, then, the court can grant the severance right there and Mr. Johnson’s trial can proceed, so we have not lost anything because the State would be asking to try Mr. Johnson first in the event that the court does not sever the defendants.
Thus, the prosecutor’s election to redact portions of Ms. Wool-bright’s testimony was made under Rule 22.3, and severance was granted. In its order dated November 7, 2002, the trial court stated, “Comes before the court the motion of the defendants for severance, and the motion is hereby granted.” Once severance has occurred, the two cases should have been considered separately.
However, the prosecutor contacted the trial court in writing, requesting that a hearing be held for the purpose of modifying the order granting severance. At that hearing, the following colloquy occurred:
The Court: [A]fter reviewing a transcription of the statements or taped interviews with one of the defendants, Rebecca Woolbright, and after reviewing some case law that was provided to the court, the court entered an order that after having read the transcriptions that the cases would be severed, and the court also received a letter from Mr. Self [attorney for Woolbright, stating that his “client’s defense would be prejudiced if her statement” were presented in the State’s proposed redacted form] relative to his position on the severance. Following that, Mr. Rhoades [prosecuting attorney] contacted the court in writing to ask if we could have a hearing for clarity purposes ...[.]
Mr. Rhoades: I’m here for clarity, Judge. . . . Your Honor, basically the situation for the State is that — and I understand the court’s ruling— I’m not arguing about the court’s ruling — is that the State, the State is given the options [sic] to, when a severance motion is made, to either redact or not use, and we indicated to the court we were going to redact.The court looked at it and decided we couldn’t redact and make it work, and I’m not prepared — and the State is not prepared to try the case without the statement, so that’s where we’re at. We’re at the fact they have been severed.
The election authorized by Rule 22.3 was made at the August 22 hearing, and the trial court ordered that the trials should be severed. Subsequently, the prosecuting attorney took another bite at the Rule 22.3 apple and sought to proceed with a dual-jury experiment. There is no provision allowing the State to take two stabs at Rule 22.3. In this case, the prosecutor sought to have portions of Ms. Woolbright’s testimony redacted under Rule 22.3(a)(ii) at the hearing on August 22, and then after a severance was granted, sought a second election during the November 7 hearing to go forward with a dual-jury procedure. By so doing, the trial court erroneously expanded Rule 22.3 by ordering a dual-jury trial. It is clear that our court has not modified or amended Ark. R. Crim. P. 22.3, and we have never approved the dual-jury procedure in the context of Rule 22.3. For these additional reasons, we should reverse and remand.
III. Prejudice to Ms. Woolbright
The majority determines that much of the evidence that had been presented to the dual juries must be suppressed. The items that were seized by the officers during the knock-and-talk procedure were a pair ofjeans, a pocket knife, Johnson’s statement to the police, a wristwatch with a blood stain, boots, and a set of keys. Because the majority has held that the evidence should be suppressed, I believe any consideration of this evidence that was heard by the Woolbright jury is prejudicial.
Specifically, the Woolbright jury heard testimony on these items from two witnesses, Phillip Rains and Melissa Myhand, from the Arkansas State Crime Laboratory. Both Mr. Rains and Ms. Myhand testified that they conducted tests and found the victim’s blood on the knife and watch retrieved from the Fort Smith Police Department. It is clear that consideration of this suppressed evidence was prejudicial to Ms. Woolbright when she was tried as an accomplice and convicted of first-degree murder while Mr. Johnson’s jury sat next to hers in the same courtroom. Under these circumstances, there can be no doubt that the Woolbright jury would have considered this evidence and imputed Mr. Johnson’s actions to her.
If appellants’ trials had been properly severed, the admission of any such evidence against Ms. Woolbright would have been subject to a ruling by the trial court as to whether evidence suppressed for Mr. Johnson could be admitted against his co-defendant, Ms. Woolbright. However, the trial court made no ruling as to whether such evidence could be admitted in the Woolbright trial. Again, for these reasons, I find prejudicial error and would reverse and remand.
IV Other jurisdictions ■
While Arkansas has never approved a dual-jury procedure, other states have strongly discouraged the dual-jury procedure. See United States v. Rimar, 558 F.2d 1271 (6th Cir. 1977); United States v. Sidman, 470 F.2d 1158 (9th Cir. 1972); State v. Corsi, 430 A.2d 210 (N.J. 1981); State v. Watson, 397 So. 2d 1337 (La. 1981); Scarborough v. State, 437 A.2d 672 (1981); People v. Brooks, 285 N.W.2d 307 (Mich. App. 1979).
In State v. Corsi, 430 A.2d 210 (N.J. 1981), the Supreme Court of New Jersey, affirming the conviction of two defendants tried jointly before separate juries, expressed its concern for the use of the dual-jury procedure:
The reason for the lack of widespread adoption of this technique would appear to be the belief that application of appropriate safeguards necessary to protect the rights of defendants in such a trial would be more time consuming than if separate trials were ordered. In addition, inherent in such a complicated procedure is the greatly enhanced possibility of error. It seems clear, therefore, that such procedure remains the rare exception rather than the rule.
We conclude that the multiple jury procedure utilized in the instant case can involve substantial risks of prejudice to a defendant’s right to a fair trial. . . . [T]here are too many opportunities for reversible error to take place. We do not recommend it. If it is to be used at all, it should be in relatively uncomplicated situations which will not require the excessive moving of juries in and out of the courtroom and where physical separation of the juries during the entire trial proceedings can be insured. In short, a trial court should carefully weigh the risks involved before attempting to utilize the multiple jury procedure.
Id. (citation omitted).
Notwithstanding these cases that strongly discourage the practice of dual juries, the majority cites the Seventh Circuit in the civil case of In Re High Fructose Corn Syrup Antitrust Litigation, 361 F.3d 439 (7th Cir., 2004), for the proposition that “a judge has inherent authority to impanel a dual jury.” I submit that this federal, antitrust case involving corn syrup is inapplicable to a criminal case in our state-court system and has no room in our state’s jurisprudence..
V. Conclusion
We should go beyond the rationale of the Supreme Court of New Jersey and hold that the dual-jury procedure is prohibited and is a violation of appellants’ jury-trial rights until and unless we adopt rules approving and regulating such a procedure. Here, the dual-jury procedure was thoroughly confusing at trial. The trial court, the prosecutor, and defense counsel repeatedly admitted on the record that they were confused about how to proceed. For these reasons, as well as the vastly different outcomes of appellants’ trial, I conclude that there was prejudice in this dual-jury procedure.
In my view, Arkansas should continue to disapprove of the dual-jury procedure because of the great potential for error. Accordingly, under a 4-3 (h) review, I recommend that we reverse and remand appellant Woolbright’s conviction and sentence as well as that of appellant Johnson, and that the new trials be severed in accordance with Rule 22.3.
I am authorized to state that Justice Corbin and Justice Hannah join in this dissent.