¶1concurring. Although I am compelled to agree with the majority opinion that Adams v. State requires that we reverse this case, I think this case demonstrates that the rule in Adams needs to be modified.
¶2First, the judge in the case at bar apparently did not remember that he had been the prosecuting attorney at the time the earlier plea agreement was approved by the then circuit judge; there is no evidence that the present prosecuting attorney was aware of that fact; and defense counsel stated that he was unaware of that fact. Second, no objection to the trial judge hearing the matter was ever brought to the attention of the court, and we do not usually reverse on trial errors which were not presented to the trial court and which are raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Third, we do not reverse for error unless the appellant can demonstrate prejudice, Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), and there is no demonstration of prejudice in the case at bar.
¶3In Adams, the Supreme Court essentially said that the appearance of impropriety (by the failure to recuse) was sufficient to mandate reversal. There, as in the case at bar, the decision did not turn on demonstrated prejudice, and Adams leaves no room for this Court to consider whether prejudicial error occurred. Berna was decided in 1984, four years after Adams, and changed the rule concerning prejudicial error. Prior to Berna, the rule in Arkansas was that error was presumed to be prejudicial unless the appellate court could say with confidence that the error was not prejudicial. Chapman v. State, 257 Ark. 415, 516 S.W.2d 598 (1974); McCauley v. State, 257 Ark. 119, 514 S.W.2d 391 (1974).
¶4Finally, the rulings in Adams and in the case at bar present an opportunity for defense counsel, knowing that the trial judge once acted as prosecuting attorney in a similar situation as to the one at bar, to fail to bring the matter to the trial court’s attention, see what result is reached in the revocation (or other type proceeding), and then, if the result is unsatisfactory, perfect an appeal in what will, under Adams, require an automatic reversal. (I do not mean to imply that counsel in the case at bar knew the facts; I only point out a potential problem area and emphasize the reason our rules and case law require an objection, even on questions of constitutional import, before a matter will be considered on appeal.)
¶5I concur, but I believe the Supreme Court’s holding in Adams should be reexamined in light of Berna.
¶6Corbin, C.J., and Cracraft, J., join in this concurring opinion.