Tanner v. State ( 1996 )

ANDREE LAYTON Roaf, Justice,

concurring. I concur with the result reached by the majority; however, I disagree with the basis for its holding. I would also reverse and dismiss this case, but only because the state has not shown that Tanner failed to object to the trial court’s ruling on excludability, and therefore waived his right to a speedy trial. The majority opinion also holds that a defendant is not required to challenge a trial court’s ruling excluding time for speedy-trial purposes immediately upon issuance of the trial court’s order. In doing so, the opinion seems to equate such a requirement as “placing the burden on the accused to demand a speedy trial at every stage of the proceedings.” I do not agree with this equation. More importandy, I do not agree that our decisions on speedy trial mandate or even suggest such a holding.

In fact, the cases relied upon by the majority suggest the contrary. Two of the cases cited by the majority do not require further discussion. The holdings in these cases are accurately stated and they have only general application to the issue we are called upon to resolve. See Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987) (State has the burden of showing that delay was the result of defendant’s conduct or was otherwise justified); Stanley v. State, 297 Ark. 586, 764 S.W.2d 426 (1989) (exceptional circumstances justified exclusion of time for a crowded trial docket).

However, the remaining cases discussed in the majority opinion bear closer scrutiny. In Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991), the trial court, on its own motion and by letter to appellant’s attorney and the prosecutor, continued the appellant’s trial to a date outside the one-year speedy-trial period due to a “scheduling conflict.” There was no mention of excluding the time in the letter nor was an order entered or a docket entry made. Ten days later, and nine days prior to the running of the speedy-trial period, the state filed a motion requesting that the time from the original setting to the new trial date be excluded for speedy-trial purposes, due to a “congested trial calendar.” The trial court granted the motion four days later by docket entry. Ten days after the state’s motion to exclude the time, one day after the running of the speedy-trial period, and seven days prior to the new trial setting, the appellant made a timely response to the state’s motion, objecting to the exclusion of the time.

In Raglin v. State, 35 Ark. App. 181, 816 S.W.2d 618 (1991), the appellant’s trial was simply set outside the one-year speedy-trial period. There were no docket entries or written orders, or even an indication that a continuance was granted in the scheduling of the trial. Finally, in Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995), the appellant’s counsel was present when the trial court made a ruling that the speedy-trial time would be tolled pending a second mental evaluation. This court stated that Mack’s counsel did not contest the ruling in any form or fashion and that the time to raise the issue was when the trial court made the ruling.

Clearly, none of the cases cited by the majority purports to relieve a defendant of the obligation of objecting to a ruling of the trial court in a timely fashion. Today’s holding will do so. Speedy-trial objections must be raised in the trial court and prior to the trial date in order to preserve the issue for review. Ark. R. Crim. P. 28.1. This issue is not an exception to the contemporaneous-objection rule. See Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

The reason for our contemporaneous-objection rule is that a trial court should be given an opportunity to know the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994). It is understandable that a defendant would not wish to call the trial court’s attention to an erroneous ruling on the excludability of time for purposes of speedy trial; however, Mack, supra, requires that a defendant do so, and it defies logic that a defendant should be required to object to an oral ruling and not to the identical written ruling.

The majority attempts to qualify its holding by limiting it to the “circumstances of this case.” The circumstances of this case are unfortunately not divulged by the abstract before this court. We do know that, in this instance, Tanner made an oral speedy-trial motion on the day before his trial. The hearing on the motion was conducted the following day. The prosecutor had not been involved in the case when the order excluding the time for speedy-trial purposes was entered, and the order had been entered by a judge other than the one presiding in Tanner’s trial. At the hearing, the following colloquy occurred:

[Prosecutor]: Judge, you and I are in a particularly unique position in that neither one of us was at the hearing December the 12.

[Tanner’s counsel]: And neither was I.

[Prosecutor]: Well, all three of us. None of us were present on December the 12th when this order was entered, although that was [the] specific disposition date set for the defendant to appear, the defense counsel to appear, and the state to appear. And unless there’s some showing we must assume that all counsel was present for that particular order to be entered. If there was an objection to that period of time, then the court — Judge Glover — overruled that objection and made the ruling at that time that he did.

f the defense was not — did not object, then I would argue at this time that to wait for basically 90-days before objecting to that order is paramount to a waiver of that order. . . .

(Emphasis added.) It is understandable that under such short notice, the state did not present any evidence concerning the circumstances of the order. However, as it is the state’s burden to show that the delay in speedy trial is the result of the defendant’s conduct, it should also be the state’s burden to show that the defendant has clearly waived his right in this matter, and here the state has failed to do so.

I concur.