Timothy Leron Hester v. State of Arkansas
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DIVISION IV
CACR 07250
NOVEMBER 7, 2007
V.
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SEVENTH DIVISION
[NO. CR 062416]
STATE OF ARKANSAS
HONORABLE BARRY SIMS,
JUDGE
TIMOTHY LERON HESTER
APPELLANT
APPELLEE
REVERSED AND REMANDED
JOHN B. ROBBINS, Judge
Appellant Timothy Leron Hester was convicted in a bench trial of firstdegree battery,
and was sentenced as a habitual offender to thirty years in prison. Mr. Hester’s sole
argument on appeal is that the trial court erred in denying his request to withdraw his waiver
of his right to be tried by a jury. We agree, and we reverse and remand.
On June 21, 2006, the State charged Mr. Hester with firstdegree battery committed
against Keith Cooley. A pretrial hearing was held on September 11, 2006, where the
following exchange transpired:
THE COURT: It looks like we’re here for omnibus. Any motions?
DEFENSE COUNSEL: No motions except waive a jury trial.
THE COURT: Raise your right hand, Mr. Hester.
THE COURT: Did you sign this jury waiver?
APPELLANT: Yes, sir.
THE COURT: You understand that you have a right to trial by jury and that by
signing this document, you’re waiving that right and electing to have a bench trial?
APPELLANT: Yes, sir.
THE COURT: You understand that I will determine both the facts and the law of the
case and whether you’re guilty or not guilty. And if I find you guilty, I will fix your
sentence.
APPELLANT: Yes, sir.
THE COURT: Are you under the influence of alcohol or drugs?
APPELLANT: Pardon me?
THE COURT: Are you under the influence of alcohol or drugs?
APPELLANT: No, no, sir.
THE COURT: Have you read everything in this document and are you voluntarily
waiving your right to a jury trial?
APPELLANT: Yes, sir.
THE COURT: Okay.
DEFENSE COUNSEL: I read that to him verbatim. One thing I’d like to state on the
record is that I did advise him to keep his jury trial, but he wanted a judge trial.
THE COURT: Jury waived; bench trial date?
TRIAL ASSISTANT: October 13th.
THE COURT: At?
TRIAL ASSISTANT: Nine o’clock.
THE COURT: Okay, thank you.
DEFENSE COUNSEL: Your Honor, he’s now telling me he wants to leave it as a
jury trial.
THE COURT: I think at this point it’s discretionary with me after I read him all that
stuff and done all that. So I’m not giving him a jury trial. He waived it. Thank you.
The bench trial was held as scheduled on October 13, 2006. The State called
three witnesses, which included the victim and two investigating officers. The victim,
Mr. Cooley, testified that he was friends with Mr. Hester but that on May 18, 2006,
Mr. Hester got angry with him because Mr. Hester wanted a ride home and Mr. Cooley
refused to give him a ride. According to Mr. Cooley, Mr. Hester stabbed him with a “kitchen
steak knife,” resulting in collapsed lungs and two days’ hospitalization. The defense did not
call any witnesses.
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Mr. Hester argues on appeal that the trial court abused its discretion by not allowing
him to withdraw his waiver of jury trial. A criminal defendant may waive his right to a jury
trial if there is compliance with 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.
Mr. Hester concedes that his initial waiver of his right to be tried by a jury was valid.
However, he contends that he should have been permitted to withdraw the waiver pursuant
to Ark. R. Crim. P. 31.5, which provides:
A defendant may not withdraw his voluntary and knowing waiver of trial by jury
as a matter of right, but the court, in its discretion, may permit withdrawal of the
waiver prior to the commencement of trial.
Mr. Hester notes that he made his request to withdraw his jurytrial waiver a month before
the scheduled trial date, and only moments after the waiver was accepted by the trial court.
Under these circumstances, appellant submits that his request for withdrawal was not made
in bad faith or for purposes of delay, and that there was no showing that granting his request
would have delayed the start of the trial or inconvenienced the State’s witnesses.
A denial of a request to withdraw the waiver of a jury trial will be affirmed absent an
abuse of discretion. Maxwell v. State, 73 Ark. App. 45, 41 S.W.3d 402 (2001). An abuse
of discretion occurs when the trial court makes a judgment call that is arbitrary and
groundless. Smith v. State, 90 Ark. App. 261, 205 S.W.3d 173 (2005). In the present case
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we hold that the trial court abused its discretion in denying Mr. Hester’s motion to withdraw
his waiver.
This case is unlike Scates and Blaylock v. State, 244 Ark. 333, 424 S.W.2d 876
(1968), where our supreme court affirmed when the motion to withdraw the jurytrial waiver
was not made until the date on which the trial was set, and the trial court denied the motion
as being too late. In a more recent case, Maxwell v. State, supra, this court stated that the
trial court should consider such matters as the timeliness of the motion to withdraw and
whether delay of the trial will impede justice or inconvenience witnesses. In that case, we
held that the trial court abused its discretion in denying Maxwell’s motion to withdraw her
waiver in part because her motion was filed more than one month prior to trial, and no
inconvenience to witnesses or to the administration of justice was demonstrated.
We are also persuaded by cases from other jurisdictions. In Thomas v.
Commonwealth, 238 S.E.2d 834, 835 (Va. 1977), the Virginia Supreme Court wrote:
Whether one accused of crime who has regularly waived a jury trial will be permitted
to withdraw the waiver and have his case tried before a jury is ordinarily within the
discretion of the trial court. The rule, as expressed in some cases, is that if an
accused’s application for withdrawal of waiver is made in due season so as not to
substantially delay or impede the cause of justice, the trial court should allow the
waiver to be withdrawn.
The authorities are uniformly to the effect that a motion for withdrawal of
waiver made after the commencement of the trial is not timely and should not be
allowed. Whether a motion for the withdrawal of a waiver of trial by jury made prior
to the actual commencement of the trial of the case is timely depends primarily upon
the facts and circumstances of the individual case. Where there is no showing that
granting the motion would unduly delay the trial or would otherwise impede justice,
the motion is usually held to be timely. In some cases, however, it has been held that
a motion for withdrawal of a waiver of jury trial, although made prior to the trial, was
not timely and was properly denied by the trial court, the decisions in these cases
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being based primarily upon the ground that granting the motion would have resulted
in an unreasonable delay of the trial.
In People v. Hamm, 298 N.W.2d 896 (Mich. App. 1980), the appeals court recognized that
a waiver should be strictly construed in favor of preservation of the sacred right to a jury
trial. Relevant factors for the trial court include evidence of bad faith and the nature or
extent of prosecutorial objection. See People v. Miller, 566 N.Y.S.2d 429 (N.Y. Sup. Ct.
1990). And in State v. Cloud, 393 N.W.2d 123 (Wis. App. 1986), the appellate court stated
that the trial court’s discretion in deciding a withdrawal motion is not unbridled and should
be exercised liberally in favor of granting the defendant’s right to a jury trial. Upon
reviewing cases from other jurisdictions, that court wrote:
Generally, the cases hold that if a defendant’s motion to withdraw a jury waiver is
made sufficiently in advance of trial so as not to interfere with the orderly
administration of court business or to result in unnecessary delay, inconvenience to
the witnesses, or prejudice to the state, the court should exercise its discretion to
allow the defendant to have a jury trial. Decisions upholding the trial court’s denial
of a withdrawal motion made prior to trial are primarily based on the ground that
granting withdrawal would have resulted in unreasonable delay or inconvenience.
Id. at 126 (citations omitted).
In the case at bar, Mr. Hester waived his right to a jury trial and then immediately
changed his mind and decided to take his counsel’s advice and request a trial by jury. There
was no indication of any bad faith, and the prosecutor made no objection to appellant’s
request to withdraw the waiver. Moreover, given the timeliness of the withdrawal request,
there was no indication that this would have caused any delay, inconvenience to witnesses,
or prejudice to the State.
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The State argues in its brief that because appellant offered no argument or explanation
below in support of his request to withdraw the waiver, any supporting arguments raised on
appeal are outside the scope of appellate review. We disagree. A trial by jury is perhaps the
most basic of rights afforded an accused. See Bartlett v. U.S., 354 F.2d 745 (8th Cir. 1966).
A criminal defendant is not required to explain his decision for attempting to exercise this
right, and under the circumstances presented before the trial court in this case its decision to
deny appellant’s withdrawal request was arbitrary and groundless, even in the absence of any
accompanying argument by appellant. It appears that the trial court denied the request on
the sole basis that there had been a valid waiver, and this was an abuse of discretion.
Reversed and remanded.
VAUGHT and BAKER, JJ., agree.
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