{ "id": 1912811, "name": "Mickie Gean JOHNSON v. STATE of Arkansas", "name_abbreviation": "Johnson v. State", "decision_date": "1993-10-25", "docket_number": "CR 93-402", "first_page": "471", "last_page": "479", "citations": [ { "type": "official", "cite": "314 Ark. 471" }, { "type": "parallel", "cite": "868 S.W.2d 43" }, { "type": "parallel", "cite": "863 S.W.2d 305" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "641 S.W.2d 710", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1750220 ], "year": 1982, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/ark/277/0380-01" ] }, { "cite": "211 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1473329 ], "year": 1982, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ark/211/0380-01" ] }, { "cite": "459 U.S. 553", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6200055 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/459/0553-01" ] }, { "cite": "75 Pa. Cons. Stat. \u00a7 1547", "category": "laws:leg_statute", "reporter": "Pa. Cons. Stat.", "pin_cites": [ { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "535 A.2d 707", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1368064 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/pa-commw/112/0390-01" ] }, { "cite": "Ind. Code \u00a7 9", "category": "laws:leg_statute", "reporter": "Ind. Code", "opinion_index": 0 }, { "cite": "540 N.E.2d 140", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10934896 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ne2d/540/0140-01" ] }, { "cite": "285 Ark. 77", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877658 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0077-01" ] }, { "cite": "295 Ark. 129", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893762 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0129-01" ] }, { "cite": "299 Ark. 523", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888352 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0523-01" ] }, { "cite": "260 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616826 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0201-01" ] }, { "cite": "679 S.W.2d 795", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1984, "opinion_index": 0 }, { "cite": "283 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "year": 1984, "opinion_index": 0 }, { "cite": "288 Ark. 384", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721057 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0384-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-65-205", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1991, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "305 Ark. 426", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916838 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0426-01" ] }, { "cite": "841 S.W.2d 589", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1898915, 1898910 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0446-01", "/ark/310/0713-01" ] }, { "cite": "310 Ark. 713", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898910 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0713-01" ] }, { "cite": "310 Ark. 744", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898920 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0744-01" ] }, { "cite": "314 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912823 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "387" }, { "page": "841" } ], "opinion_index": 0, "case_paths": [ "/ark/314/0387-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 5-65-202", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-65-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 1 }, { "cite": "284 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878638 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/284/0340-01" ] }, { "cite": "288 Ark. 209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718884 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/288/0209-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-65-205", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 5-65-202", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 }, { "cite": "314 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912823 ], "weight": 2, "year": 1993, "opinion_index": 2, "case_paths": [ "/ark/314/0387-01" ] } ], "analysis": { "cardinality": 861, "char_count": 19884, "ocr_confidence": 0.905, "pagerank": { "raw": 4.547713166078303e-07, "percentile": 0.9244044730020939 }, "sha256": "1950338ea6642e6a7fc48d82984d7a63f5317c435c2d48fc0000880baaf8966d", "simhash": "1:cb288a44356e989b", "word_count": 3408 }, "last_updated": "2023-07-14T21:22:56.854306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Dudley, J., concurs.", "Dudley and Newbern, JJ., would grant rehearing." ], "parties": [ "Mickie Gean JOHNSON v. STATE of Arkansas" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis case involves a consideration of the Arkansas implied consent law, codified at Ark. Code Ann. \u00a7\u00a7 5-65-202, 5-65-205 (Supp. 1991), and the effectiveness of a. waiver of trial by jury. We hold that the appellant effectively waived his right to trial by jury and that his assessments of our implied consent law and a police implied-consent admonition form are of no moment.\nThe appellant, Mickie Gean Johnson, was arrested by State Trooper Mark Meadows on July 26, 1991, for driving while intoxicated, fleeing, and violation of the implied consent law. He was tried in the Prairie Grove Municipal Court in January 1992 and was found guilty of DWI and violation of the implied consent law. The court found him not guilty on the charge of fleeing. Following a de novo bench trial before the Washington County Circuit Court in July 1992, Johnson was again found guilty of DWI and violation of the implied consent law. The appellant raises three issues for reversal.\nI. WAIVER OF TRIAL BY JURY\nJohnson\u2019s first point addresses essentially the same question that we recently considered in Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993), where we found that an attorney\u2019s waiver of his client\u2019s right to a jury trial, made in open court and in the presence of the defendant, satisfied the requirement of Ark. R. Crim. P. 31.2 that such a waiver be made \u201cpersonally.\u201d Johnson contends that the trial court erred in not granting him a trial by jury. He asserts that the circuit court failed to obtain a valid waiver of his right to a jury trial because it did not address him personally and elicit a knowing, intelligent, and voluntary waiver. We disagree.\nJohnson\u2019s argument is based primarily upon two recent DWI cases which we considered in Bolt: Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), in which we declared that, under the Arkansas Constitution and the Arkansas Rules of Criminal Procedure, a criminal defendant is entitled to receive a trial by jury unless the right is waived in the manner provided by law.\nAs we noted in Calnan v. State, supra, the \u201cmanner prescribed by law\u201d for waiver in a criminal trial is set forth in Rules 31.2 and 31.3 of the Arkansas Rules of Criminal Procedure. Rule 31.2 provides that:\nShould a defendant desire to waive his right to trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.\nRule 31.3 states that \u201cIn misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant\u2019s attorney. . . .\u201d\nThe two cases cited by Johnson, although superficially similar to the present set of circumstances, bear marked differences, as we noted in comparing the corresponding situation in Bolt. In Calnan, the appellant was tried in Rogers Municipal Court and found guilty of DWI, disorderly conduct, violation of the implied consent law, and speeding. She appealed to the circuit court and, in a de novo bench trial, was found guilty of all charges except speeding. No mention was made of a trial by jury by either party or the court. On appeal, Calnan asserted that she had not waived her right to a jury trial, and this court agreed, noting that a waiver is an \u201cintentional relinquishment of a known right,\u201d 310 Ark. at 748, 841 S.W.2d at 595, and that, under the rules of criminal procedure, the only way a waiver of a jury trial can be effected is \u201cby personally making an express declaration in writing or in open court,\u201d 310 Ark. at 747, 841 S.W.2d at 595, the proceedings of which must be preserved.\nIn Winkle v. State, supra, the defendant faced a more serious charge \u2014 DWI, third offense, in addition to driving on a suspended license and hindering apprehension or prosecution \u2014 but, like the defendant in Calnan, neither he nor his attorney asked for a jury trial or offered any objection to the bench proceedings. Citing Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991), we stated that, under the state constitution and rules of criminal procedure, a defendant is entitled to be tried by a jury without making such a motion. Further, we emphasized that a waiver of a jury trial is constitutionally permissible only when it is made in accordance with the provisions of the rules of criminal procedure.\nThe record in the case now before this court, unlike the transcripts in Calnan and Winkle, is far from silent on the question of waiver. In fact, it is quite similar to the record in Bolt, which reflects that the defendant\u2019s attorney, in open court and in his client\u2019s presence, formally waived \u201cany requirement of a jury trial in this matter.\u201d See 314 Ark. at 387, 862 S.W.2d at 841.\nAt the beginning of Johnson\u2019s bench trial, the circuit court acknowledged the appellant\u2019s presence, calling him by his full name. During the defense counsel\u2019s closing argument, the following exchange occurred:\nTHE COURT:. . . As I understand it, the defendant in this particular case has waived his right to a jury trial.\nMR. NORWOOD: That\u2019s correct, Your Honor.\nTHE COURT: Is that not correct?\nMR. NORWOOD: Yes, we have a bench trial, yes.\nTHE COURT: Well, I just wanted to be certain about that.\nMR. NORWOOD: Oh, no, there\u2019s no problem with that, Judge.\nTHE COURT: Okay, fine. You may proceed.\nMR. NORWOOD: What I\u2019m saying is even if we had had a jury \u2014\nTHE COURT: I understand . . . your argument. I just wanted to make it clear for the purpose of the record that you waived your right to a jury trial in this case, the case we\u2019re trying here today.\nMR. NORWOOD: Right.\nThe distinction between the Calnan and Winkle cases and Johnson\u2019s situation \u2014 and the analogy with Bolt \u2014 is clear. Where nothing was said one way or the other about waiver during the trials in the earlier cases, defense counsel in the present matter affirmed \u201cin open court\u201d (as Ark. R. Crim. P.31.2 puts it) that Johnson\u2019s right to trial by jury had been waived. Moreover, like the attorney in Bolt, defense counsel here, in the presence of the appellant, explicitly submitted the case to the court for a bench trial. Under the circumstances of the present case, Johnson was bound by his attorney\u2019s action.\nII. IMPLIED CONSENT LAW\nThe appellant argues in his second point for reversal that the Arkansas implied consent law \u2014 and specifically Ark. Code Ann. \u00a7 5-65-205 (Supp. 1991)\u2014 is facially unconstitutional because it removes from the jury\u2019s province the ability to determine whether the arresting officer had reasonable cause to believe the defendant had been driving while intoxicated. In closing argument, Johnson\u2019s attorney asserted that if his client had been tried by a jury, the implied consent law would have violated his right to trial by jury because the trial court, rather than the jury, would have determined whether the appellant had been guilty of refusing to submit to a chemical test.\nThe statutory section at issue provides:\nIf the judge determines that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person\u2019s blood, and the person refused to submit to the test upon the request of the law enforcement officer, the judge shall order the Office of Driver Services to [suspend or revoke the operator\u2019s license].\nArk. Code Ann. \u00a7 5-65-205(c) (Supp. 1991).\nThe trial court declared the constitutional issue moot because \u201cthe defendant has specifically waived his right to a jury trial.\u201d Johnson\u2019s contention is based on a hypothetical proposition: had there had been a jury trial, the appellant\u2019s rights would have been jeopardized. But it is well established that this court does not answer academic questions. Neely v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986); Crittenden County v. Williford, 283 Ark. 296-A, 679 S.W.2d 795 (1984), supp. op. on den. of reh\u2019g; Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). Nor does the Supreme Court issue advisory opinions. Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988).\nMoreover, Johnson\u2019s attorney waited until his closing argument to address the issue of the constitutionality of the implied consent law. Failure to object at the first opportunity to do so waives any right to raise the point on appeal. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).\nIII. IMPLIED-CONSENT ADMONITION FORM\nFinally, Johnson urges that the trial court erred in refusing to dismiss the charge of refusing to submit to a chemical test on the basis that he was inadequately informed of the consequences of refusing to take the test. The language of Ark. Code Ann. \u00a7 5-65-205(c) (Supp. 1991), quoted above, states that \u201cthe judge shall (emphasis added) order the Office of Driver Services\u201d to suspend or revoke the motor vehicle operator\u2019s license upon a judicial determination that the law enforcement officer had reasonable cause to believe that the arrested driver was DWI or while there was 0.10% of alcohol in the driver\u2019s blood and the driver refused to submit to a chemical test.\nThe consent form which Johnson signed contained the following notice:\nIf I have reasonable grounds for believing you have been driving or have been in actual control of a motor vehicle while intoxicated or while impaired by alcohol or a controlled substance, I can request that you take a chemical test of my choosing to determine your blood alcohol and/or controlled substance content.\nIf you refuse this test and a court later determines that I had proper cause to require you to take the test, then your driver\u2019s license may be suspended for six months or more. (Emphasis added.)\nThe arresting officer, Mark Meadows, testified that he read the rights and consent form to Johnson, who signed the line indicating his refusal to take a chemical test. Johnson himself stated at trial that he had read the form and believed that the phrase \u201cmay be suspended\u201d meant that \u201cat least I had a chance of still keeping my license.\u201d He said that \u201cI thought you didn\u2019t have to take the test, then you could go to court and argue about it.\u201d\nJohnson cites two cases from other jurisdictions involving consent-form variants on statutory language. In State v. Huber, 540 N.E.2d 140 (Ind. App. 3 Dist. 1989), the Indiana implied consent law provided that \u201cthe refusal will result in the suspension of [the arrested person\u2019s] driving privileges.\u201d Ind. Code \u00a7 9-ll-4-7(b) (1988). The appellate court found that the warning that \u201cyour license may be suspended for one year\u201d was insufficient under the Indiana implied consent law, which \u201crequires an advisement that refusal will result in suspension.\u201d 540 N.E.2d at 141.\nIn Graves v. Commonwealth, 535 A.2d 707 (Pa. Cmwlth. 1988), the commonwealth court found the arresting officer\u2019s implied consent warning insufficient to convey the mandatory nature of the suspension entailed by refusal to submit to a chemical test. The driver had been advised that he \u201ccould\u201d lose his license as a consequence of his refusal to take the test. This, the court said, was \u201cinadequate to convey the standard of certainty of the suspension that is mandated by the statute.\u201d 535 A.2d at 708. That statute, 75 Pa. Cons. Stat. \u00a7 1547(b)(2), provided that \u201cIt shall be the duty of the police officer to inform the person that the person\u2019s operating privilege will be suspended or revoked upon refusal to submit to a chemical test.\u201d\nArkansas, unlike Indiana and Pennsylvania, does not have a statutorily prescribed implied-consent admonition form. The General Assembly did not include such a requirement when it enacted the implied consent law. The United States Supreme Court has held that a defendant need not be apprised of the consequences of refusing to submit , to a chemical test. South Dakota v. Neville, 459 U.S. 553 (1983). As we observed in another context: \u201cThe police should not be penalized for attempting to afford an unnecessary procedural safeguard to appellant.\u201d Allen v. State, 211 Ark. 380, 386, 641 S.W.2d 710, 714 (1982).\nThe trial court did not err in finding that the appellant had been adequately informed of the consequences of refusing to take the prescribed chemical test.\nAffirmed.\nDudley, J., concurs.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "Robert H. Dudley, Justice,\nconcurring. I concur in the result reached. I personally do not agree with all of the reasoning expressed in Point I, the point involving waiver of trial by jury. See dissenting opinion, Dudley, Bolt v. State, CR-93-281 (Ark. October 11, 1993). However, the majority has decided this issue, and I now accept that decision.\nI write because of a concern I have with Point III, which involves an implied consent form. We have had a number of appeals involving these forms over the last decade, and some of the cases have demonstrated some confusion by the police about the advice to be given motorists who are arrested for driving while under the influence of intoxicants. Normally, the police are required to advise a motorist on three separate and distinct matters. These three are the detained motorist\u2019s Miranda rights, a request that the detainee take a chemical test, and that the detainee can have a second chemical test at his own expense. I write this concurring opinion solely for the benefit of a prosecuting attorney, city attorney, or deputy prosecutor or deputy city attorney, or police instructor, who might wish to advise police about the forms.\nIn many of the cases, the first thing that happens after a motorist is taken to the police station is the motorist is given a Miranda warning about his right against self-incrimination. The motorist is told that anything he says can and will be used against him, that he has a right to remain silent, and that he has a right to counsel. Shortly afterwards, an officer asks the motorist if he will take a chemical test of his blood, breath, or urine. Some motorists, having just heard their Miranda rights, choose to remain silent and ask for a lawyer before they take the test. See Wright v. State, 288 Ark. 209, 703 S.W.2d 850 (1986). The motorist may not understand the distinction between the Miranda warning against self-incrimination and consequences of the refusal to take a chemical test. They may not know they have already given an implied consent to the chemical test merely by operating an automobile, Ark. Code Ann. \u00a7 5-65-202 (Supp. 1993), or that enforcement of the implied consent law does not violate the provision against self-incrimination, Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984), or that the failure to take the test can result in the loss of one\u2019s driver\u2019s license. Ark. Code Ann. \u00a7 5-65-205 (Supp. 1993).\n868 S.W.2d 43\nDoug Norwood, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee.\n. Thus, it would seem appropriate for the officer to first advise the motorist of his Miranda rights, and then to carefully tell the motorist that the chemical test is not protected under the Miranda warning and that the failure to take the chemical test will likely result in the loss of his driver\u2019s license. It seems only fair for the officer to make the distinction clear. Under the statutes, the policeman must still give a third warning to the motorist. He must advise the motorist that he can have an additional chemical test at his own expense if he so chooses. Ark. Code Ann. \u00a7 5-65-204(e) (Supp. 1993).\nI concur in every respect with the majority opinion on this point in this case. I write this concurrence solely to set out the distinctness and separateness of the three warnings the police must give in conjunction with the implied consent to chemical test of motorists.", "type": "concurrence", "author": "Robert H. Dudley, Justice," }, { "text": "SUPPLEMENTAL OPINION ON DENIAL OF REHEARING DECEMBER 13, 1993\nJack Holt, Jr., Chief Justice.\nMickie Gean Johnson urges, in his petition for rehearing, that, in the opinion recently handed down in this case, Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993), we erred in our application of Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993). More particularly, the appellant contends that we failed to mention the \u201ctwo-part test announced in Bolt\u201d regarding notice to the accused of a right to a jury trial and the presence of the accused in open court when the attorney makes the waiver.\nBolt\u2019s two-tier ruling reads as follows:\n. . .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\u2019s presence.\n314 Ark. at 390. At his arraignment, Bolt had been informed by the court of his right to a jury trial and had signed a form in which that right and others were set forth. Upon commencement of trial, his attorney, in open court, on the record, and in Bolt\u2019s presence, waived the right to trial by jury. We held this was sufficient.\nIt is true, as Johnson notes in his petition, that the record in his case is silent on the question of his personal acknowledgment of having been informed by the trial court or his attorney of his right to a jury trial, and it is true, as well, that our opinion does not specifically refer to that portion of the Bolt requirement. The record and the opinion both, however, reflect the fact that the appellant was present when waiver was accomplished, the circuit court acknowledging Johnson\u2019s presence by calling him by his full name in open court. See 314 Ark. at 474, 863 S.W.2d at 307.\nMoreover, the open-court, on-the-record exchange between the trial court and Johnson\u2019s attorney reveals that the judge employed the term \u201cright to a jury trial\u201d at a time when Johnson was present in the courtroom. Specifically, counsel expressly confirmed no less than four times (in response to questions or comments by the court) that trial by jury had been waived. In the colloquy, conducted in Johnson\u2019s presence, his attorney stated that it was \u201ccorrect\u201d that Johnson had waived his right. He went on to declare that \u201cYes, we have a bench trial, yes,\u201d and to assure the trial court that \u201cthere\u2019s no problem with that. . . .\u201d Finally, when the judge stated, \u201cI just wanted to make it clear for the purpose of the record that you waived your right to a jury trial in this case, the case we\u2019re trying here today,\u201d Johnson\u2019s attorney responded by saying, \u201cRight.\u201d Id.\nIn our opinion, we compared the situation in the present case with that in Bolt, observing that, \u201clike the attorney in Bolt, defense counsel here, in the presence of the appellant, explicitly submitted the case to the court for a bench trial.\u201d 314 Ark. at 475, 863 S.W.2d at 308. Stated another way, Johnson\u2019s presence at the time of waiver amounted to a tacit acknowledgment of his right to a jury trial. As we noted in our opinion, under these particular circumstances, he was bound by his attorney\u2019s actions.\nAlthough a signed acknowledgment that one has been informed of his right to a jury trial, such as the one in the Bolt case, is certainly preferable, when, as in the present case, counsel repeatedly confirms waiver in open court, on the record, and in the defendant\u2019s presence, the defendant may not stand idly by and later cry foul.\nThe petition for rehearing is denied.\nDudley and Newbern, JJ., would grant rehearing.", "type": "rehearing", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Doug Norwood, for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee.", "Doug Norwood, for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Mickie Gean JOHNSON v. STATE of Arkansas\nCR 93-402\n863 S.W.2d 305\nSupreme Court of Arkansas\nOpinion delivered October 25, 1993\n[Supplemental Opinion on Denial of Rehearing December 13, 1993.]\nDoug Norwood, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee.\nDudley & Newbern, JJ., would grant rehearing." }, "file_name": "0471-01", "first_page_order": 497, "last_page_order": 507 }