Hyatt v. State , 2017 Ark. 296 ( 2017 )

Cite as 2017 Ark. 296
SUPREME COURT OF ARKANSAS
No. CR-16-800
VIRGINIA ANN HYATT Opinion Delivered November 2, 2017
APPELLANT
APPEAL FROM THE MILLER
V. COUNTY CIRCUIT COURT
[NO. 46CR-14-8]
STATE OF ARKANSAS HONORABLE RANDY WRIGHT,
APPELLEE JUDGE
REMAND TO SETTLE THE
RECORD .
KAREN R. BAKER, Associate Justice
On February 8, 2016, appellant, Virginia Ann Hyatt, was convicted by a Miller
County Circuit Court jury of one count of capital murder in the December 3, 2013 death of
Patricia Wheelington and was sentenced to life imprisonment without the possibility of
parole. On February 29, 2016, Hyatt timely filed her notice of appeal. On appeal, Hyatt
raises one point: the circuit court erred by denying Hyatt’s motion to direct a verdict of not
guilty based on insufficiency of the direct and circumstantial evidence to prove that Hyatt
caused the death of Wheelington with premeditated and deliberate purpose. However, based
on the record before the court, we are unable to reach the merits of this case and remand the
matter to the circuit court to settle the record.
In this case, it is impossible to determine from the record what was in front of the jury.
The State introduced multiple surveillance videos and photographs in its case-in-chief, State’s
Cite as 2017 Ark. 296
Exhibits nos. 191–196. However, State’s exhibit no. 191 is only in the record and not the
addendum, and the record is absent evidence that exhibit no. 191 was shown to the jury.
Further, the record is absent evidence that the EZ Mart video, State’s exhibit no. 194 showing
the car that was alleged to be similar to Hyatt’s, was introduced or shown to the jury because
the video submitted in the record and the addendum are indecipherable. Also, the still photos
from the EZ Mart surveillance photos, exhibits no. 195 and no. 196 are not consistent with
the testimony regarding the photos.
Accordingly, pursuant to Ark. R. App. P.–Crim. 4(a) and Ark. R. App. P.–Civ. 6(e),
we remand the matter to settle the record. Under Rule 6(e), the circuit court may settle any
difference that “arises as to whether the record truly discloses what occurred in the circuit
court.” The rule further provides that the circuit court can correct omissions from the
record by error or accident or misstatements therein. See McGehee v. State, 328 Ark. 404, 943
S.W.2d 585 (1997). Here, it is unclear what information is contained in the videos and
photos and whether that evidence was presented to, or considered by, the jury. We have
explained that it is not the purpose of settling the record to introduce evidence that was not
introduced at trial. Tackett v. First Sav. of Ark., 306 Ark. 15, 810 S.W.2d 927 (1991)
(discussing Ark. R. App. P. –Civ. 6(e), the predecessor to our current Ark. R. App. P.–Civ.
6(e)). Therefore, we remand this matter to the circuit court to settle the record.
Remanded to settle the record.
Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.
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