{ "id": 6139173, "name": "Jerry Lee MARSHALL v. STATE of Arkansas", "name_abbreviation": "Marshall v. State", "decision_date": "2008-04-23", "docket_number": "CA CR 07-708", "first_page": "175", "last_page": "181", "citations": [ { "type": "official", "cite": "102 Ark. App. 175" }, { "type": "parallel", "cite": "283 S.W.3d 597" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "338 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243448 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "191" }, { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/ark/338/0178-01" ] }, { "cite": "330 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298591 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "53-54" }, { "page": "871-72" } ], "opinion_index": 0, "case_paths": [ "/ark/330/0050-01" ] }, { "cite": "13 Ark. App. 149", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138678 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "155-56" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/ark-app/13/0149-01" ] }, { "cite": "93 Ark. App. 91", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137389 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "99" }, { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/ark-app/93/0091-01" ] }, { "cite": "81 Ark. App. 17", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136265 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "19" }, { "page": "922" }, { "page": "22-23" }, { "page": "924" } ], "opinion_index": 0, "case_paths": [ "/ark-app/81/0017-01" ] }, { "cite": "322 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447476 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "47" }, { "page": "691" }, { "page": "47-48" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0045-01" ] }, { "cite": "90 Ark. App. 114", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137487 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "114-15" }, { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ark-app/90/0114-01" ] }, { "cite": "317 Ark. App'x 649", "category": "reporters:state", "reporter": "Ark. App'x", "year": 1994, "pin_cites": [ { "page": "650" } ], "opinion_index": 0 }, { "cite": "314 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912823 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0387-01" ] }, { "cite": "868 S.W.2d 42", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1993, "opinion_index": 0 }, { "cite": "314 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "year": 1993, "opinion_index": 0 }, { "cite": "314 Ark. 471", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912811 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "472" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/ark/314/0471-01" ] }, { "cite": "324 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9160025 ], "weight": 7, "year": 1996, "pin_cites": [ { "page": "327" }, { "page": "848" }, { "page": "325-26" }, { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/ark/324/0322-01" ] }, { "cite": "73 Ark. App. 45", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136950 ], "weight": 3, "year": 2001, "opinion_index": 1, "case_paths": [ "/ark-app/73/0045-01" ] }, { "cite": "60 Ark. App. 306", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140762 ], "weight": 5, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/60/0306-01" ] }, { "cite": "310 Ark. 744", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898920 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/310/0744-01" ] }, { "cite": "317 U.S. 269", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 303755 ], "year": 1942, "opinion_index": 1, "case_paths": [ "/us/317/0269-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 16-32-202", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 }, { "cite": "879 S.W.2d 435", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "436" } ], "opinion_index": 1 }, { "cite": "317 Ark. 609", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443859 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "611" } ], "opinion_index": 1, "case_paths": [ "/ark/317/0609-01" ] }, { "cite": "81 Ark. App. 17", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136265 ], "weight": 2, "year": 2003, "opinion_index": 1, "case_paths": [ "/ark-app/81/0017-01" ] }, { "cite": "322 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447476 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "50" }, { "page": "692" } ], "opinion_index": 1, "case_paths": [ "/ark/322/0045-01" ] }, { "cite": "90 Ark. App. 114", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137487 ], "weight": 2, "year": 2005, "opinion_index": 1, "case_paths": [ "/ark-app/90/0114-01" ] }, { "cite": "314 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912823 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "390" }, { "page": "843", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/ark/314/0387-01" ] } ], "analysis": { "cardinality": 705, "char_count": 14535, "ocr_confidence": 0.779, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.30557071087928295 }, "sha256": "c37d55a86a15a9a48a0a917e5677270e0f423d796ec9b458c665e0503d7beaac", "simhash": "1:5e595ec727bef39f", "word_count": 2504 }, "last_updated": "2023-07-14T21:30:35.503442+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, C.J., Bird, Griffen and Heffley, JJ., agree.", "Baker, J., dissents." ], "parties": [ "Jerry Lee MARSHALL v. STATE of Arkansas" ], "opinions": [ { "text": "D.P. Marshall Jr., Judge.\nAn eleven-person jury convicted Jerry Lee Marshall of maintaining a drug premises and delivering crack cocaine. At the start of trial, the circuit court seated twelve jurors and asked the parties if they would agree to try the case to these twelve jurors or their survivors. The prosecutor and Marshall\u2019s counsel both agreed. The court seated no alternates and the trial proceeded. During deliberations, it was revealed to the court that one of the twelve jurors was Marshall\u2019s second cousin. After she was questioned by the lawyers, the court excused her. Marshall then sought a mistrial because the jury no longer contained twelve people. The court denied the motion. Though Marshall also asserts error on an unrelated point, the main question presented is whether the circuit court made an error of law when it allowed the jury to continue deliberating and reach a verdict with only eleven members.\nI.\nThe right to a twelve-person jury is a fundamental right guaranteed by our State Constitution. Collins v. State, 324 Ark. 322, 327, 920 S.W.2d 846, 848 (1996). The Constitution says that this right is \u201cinviolate\u201d but may be \u201cwaived by the parties in all cases in the manner prescribed by law. ...\u201d Ark. Const, art. 2, \u00a7 7. The defendant in a criminal case may waive this right in several ways, including \u201cthrough counsel if the waiver is made in open court and in the presence of the defendant.\u201d Ark. R. Crim. P. 31.2; see also Johnson v. State, 314 Ark. 471, 472, 863 S.W.2d 305, 306 (1993), supplemental opinion denying rehearing, 314 Ark. 478-A, 868 S.W.2d 42 (1993). The waiver-through-counsel provision came into this Rule by amendment in 1994 to reflect the holding in Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993). In re Arkansas Rules of Criminal Procedure, 317 Ark. App\u2019x 649, 650 (1994).\nIn this case, we do not have a waiver of a jury in favor of a bench trial. Compare Burrell v. State, 90 Ark. App. 114, 114-15, 204 S.W.3d 80, 81 (2005). We have an agreement to start with a twelve-person jury and end with however many of those jurors survived to reach a verdict, thus eliminating the need for alternate jurors. This agreement between counsel was definite. After the circuit court seated the twelve-person jury and no alternates, this exchange occurred:\nThe Court: All right. Can we agree to try this case to these twelve or their survivors?\n[Prosecutor]: That\u2019s fine with The State, Your Honor.\n[Marshall\u2019s Lawyer]: Yes, Your Honor.\nMarshall was present. Later, when Marshall\u2019s counsel sought a mistrial after the circuit court had excused the cousin juror, he said \u201c[w]e understand that we agreed to try the case to whatever jurors survived,\u201d and then tried to backtrack on that agreement. Because Rule 31.2 and Johnson would have allowed the defendant to waive a jury entirely in these circumstances, we hold that they allowed the parties\u2019 agreement: a twelve-person jury without alternates and a verdict by all the surviving jurors.\nThis case is unlike Grinning v. City of Pine Bluff, 322 Ark. 45, 47, 907 S.W.2d 690, 691 (1995). There a six-person jury was seated \u2014 with no waiver or agreement \u2014 pursuant to a statutory procedure for a six-person jury that was later ruled unconstitutional. 322 Ark. at 47-48, 907 S.W.2d at 691. This case did not start with half a jury; it started with the agreed possibility of a verdict by less than the original twelve.\nNor does our decision in Davis v. State, 81 Ark. App. 17, 97 S.W.3d 921 (2003) control. First, Davis is a jury/non-jury case, not a no-alternates case. Second, and more importantly, counsel there responded \u201cyeah\u201d when the circuit court asked if the parties were ready for trial, and then counsel said nothing when the court proceeded with a bench trial. 81 Ark. App. at 19, 97 S.W.3d at 922. Unlike in this case, no exchange on the record about a jury occurred. Davis is thus in the Collins line of cases: silence can never waive the defendant\u2019s right to a twelve-person jury. Finally, the clear prescription of Rule 31.2, not Davis\u2019s concluding words about the defendant making a knowing and intelligent waiver, governs this case. 81 Ark. App. at 22-23, 97 S.W.3d at 924. Under the Rule, Marshall\u2019s acknowledged agreement \u2014 through his lawyer \u2014 for no alternates establishes, at least presumptively, that the defendant made a considered choice. If we had to inquire behind every Rule 31.2(2) waiver by counsel, and seek to discern the defendant\u2019s understanding of the issue no matter what his lawyer had said, then the Rule would be undone. The peculiar circumstances of this case present no occasion for any such extraordinary inquiry.\nNo precedent is exactly in point, but Collins is closest. There the circuit court asked if the State and the defendant would agree to try the case to the jury or however many of the twelve jurors survived until the verdict. Collins, 324 Ark. at 325-26, 920 S.W.2d at 848. The State said \u201cyes\u201d and the defendant said nothing. Ibid. Collins\u2019s lawyer also said nothing. Ibid. In the face of this complete silence from the defendant\u2019s table, the circuit court proceeded and then allowed the trial to continue when one juror had to leave the trial because of a sick child. Ibid. The supreme court reversed in strong words, and rightly so. No waiver or agreement occurred.\nThis case is different. Marshall\u2019s lawyer \u2014 in the defendant\u2019s presence and in open court \u2014 agreed to the no-alternate procedure with the inherent possibility of a verdict by less than twelve. Marshall\u2019s lawyer confirmed his prior agreement when the circuit court excluded the cousin juror. Just as a defendant \u201ccannot sit idly by while his counsel proceeds to waive his right to a jury[,]\u201d Tumlison v. State, 93 Ark. App. 91, 99, 216 S.W.3d 620, 625 (2005), he cannot sit idly by while counsel agrees to a jury without alternates.\nThis defendant invited this alleged error. If Marshall had not agreed to start without alternates, then the circuit court could have seated some when the trial began. As the court said during the mistrial colloquy, Marshall had to know that his second cousin had been seated as a juror. Yet he let the matter go. Then, when the defect was discovered, he wanted a mistrial. Marshall thus created a win/win situation for himself: a possibly partisan juror and no available alternates, which might justify a mistrial. None of the reported cases involve this kind of conduct, which invited the problem that Marshall now complains about on appeal. Clinkscale v. State, 13 Ark. App. 149, 155-56, 680 S.W.2d 728, 732 (1984).\nThe right to a twelve-person jury is fundamental. But this is all the more reason that our law should not allow that right to be manipulated to make sure one gets either a corrupted jury or two trials.\nII.\nMarshall argues one other point for reversal. He was charged with other crimes, including being a felon in possession of a firearm. These other charges were severed and tried later. (We recently affirmed Marshall\u2019s convictions for those crimes. Marshall v. State, CACR07-1090, slip op. (Ark. App. 19 March 2008)). No one reminded the circuit court about the severance, however, until it began to read the charges for the venire at the start of this trial on the drug-related charges. When the circuit judge said that Marshall was also charged with being a felon in possession of a rifle, the prosecutor interrupted and said that the drug counts were \u201cthe only two counts that we will be trying.\u201d The circuit court told the jury that he did not have his \u201cpaperwork in proper order\u201d and that the \u201clast charge I was reading to you is not a charge.\u201d The court also instructed the jury to disregard his statements beyond the first two charges. After about ten transcript pages\u2019 worth of voir dire, Marshall sought a mistrial because the jury had been told inadvertently that he was a felon.\nThe circuit court did not abuse its discretion by denying this motion. Marshall waived this alleged error by not objecting at the first opportunity. Smith v. State, 330 Ark. 50, 53-54, 953 S.W.2d 870, 871-72 (1997). Moreover, the circuit court\u2019s prompt explanation and cautionary instruction adequately protected the defendant and cured any prejudice in the circumstances. Williams v. State, 338 Ark. 178, 191, 992 S.W.2d 89, 97 (1999).\nAffirmed.\nPittman, C.J., Bird, Griffen and Heffley, JJ., agree.\nBaker, J., dissents.", "type": "majority", "author": "D.P. Marshall Jr., Judge." }, { "text": "Karen R. Baker, Judge,\ndissenting. The majority acknowledges that the right to a twelve-person jury is a fundamental right guaranteed by Ark. Const, art. 2, \u00a7 7 and that this right to a twelve-person jury is \u201cinviolate.\u201d\nOur supreme court in Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995), discussed the court\u2019s 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. \u00a7\u00a7 16-32-202 and 16-32-203 (Repl. 1994), which provides for a jury of six persons in non-felony cases at the judge\u2019s discretion, violated Ark. Const, art. 2, \u00a7 7. The court stated in Byrd that the article 2, \u00a7 7 guarantee of a defendant\u2019s 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 \u201cin the manner prescribed by law.\u201d Byrd, 317 Ark. at 611, 879 S.W.2d at 436.\nThe manner proscribed by law for waiver of the right to a jury trial is found in Ark. R. Crim. P. 31.2, which provides:\nShould 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.\nThe 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 \u201cwhile 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\u2019s presence.\u201d 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.\nUnlike 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 \u201cto try this case to these twelve or their survivors,\u201d explaining that this means that he agreed, through counsel, \u201cto the no alternate procedure with the inherent possibility of a verdict by less than twelve.\u201d The problem with the majority\u2019s analysis is that there is no indication this \u201cno alternate procedure\u201d with its \u201cinherent possibility\u201d 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 \u201cfundamental constitutional right.\u201d Grinning, 322 Ark. at 50, 907 S.W.2d at 692. Counsel\u2019s consent to \u201ctry this case to these twelve or their survivors\u201d is simply insufficient to meet the requirements for a knowing, intelligent, and voluntary waiver in the manner prescribed by law.\nThe 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 \u201cintelligent.\u201d 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).\nThe 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\u2019s 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.\nAppellant was convicted by an eleven-person jury. Appellant did not waive his right to a twelve-person jury.\nI would reverse.", "type": "dissent", "author": "Karen R. Baker, Judge," } ], "attorneys": [ "Leah Lanford, Christian Legal Service, for appellant.", "Dustin McDaniel, Att\u2019y Gen., by: Vada Berger, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jerry Lee MARSHALL v. STATE of Arkansas\nCA CR 07-708\n283 S.W.3d 597\nCourt of Appeals of Arkansas\nOpinion delivered April 23, 2008\nLeah Lanford, Christian Legal Service, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Vada Berger, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0175-01", "first_page_order": 211, "last_page_order": 217 }