Wade v. State , 2013 Ark. App. 476 ( 2013 )

Cite as 2013 Ark. App. 476ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-12-463
Opinion Delivered September 11, 2013
SHANE DONOVAN WADE
APPELLANT APPEAL FROM THE
INDEPENDENCE COUNTY
CIRCUIT COURT
V. [NO. CR-2011-27-1]
HONORABLE JOHN DAN KEMP,
JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED
JOHN MAUZY PITTMAN, Judge
Appellant was convicted of two counts of aggravated robbery. He argues on appeal
that the trial court erred in denying his pretrial motion to suppress certain evidence (a ball
cap and shoes), and erred in permitting those items to be introduced into evidence at trial.
We cannot address this issue because appellant’s abstract is flagrantly deficient.
Rule 4-2(a)(5) of the Rules of the Arkansas Supreme Court and Court of Appeals
requires that an appellant abstract the material parts of all of the transcripts in the record.
Information in a transcript is material if the information is essential for the appellate court to
confirm its jurisdiction, to understand the case, and to decide the issues on appeal. Id.Excessive abstracting is as violative of Rule 4-2 as are omissions of material matters. Patton
v. State, 2013 Ark. App. 131; Hruska v. Baxter Regional Medical Center, 2011 Ark. App. 422.
Cite as 2013 Ark. App. 476Here, although appellant’s arguments on appeal are all directed toward the trial court’s
refusal to suppress certain physical evidence, appellant has failed to abstract the pretrial
suppression hearing on which the decision was based. In fact, the suppression hearing was
initially omitted from the record filed by appellant and was brought up only after we granted
the State’s motion to complete the record on February 27, 2013. Moreover, the State asserts
that the issue argued by appellant on appeal was not raised at the suppression hearing, and we
must likewise have an abstract of that hearing to determine whether appellant’s arguments
are preserved for appeal.
Appellant’s abstract is egregiously noncompliant in other respects as well. Although
the only question is suppression of the clothing seized while appellant was incarcerated,
appellant has included in his abstract scores of pages consisting of verbatim transcriptions of
bench conferences and testimony regarding wholly irrelevant issues such as juror selection,
jury instructions, and routine housekeeping matters that arose at trial. In addition, appellant’s
abstract includes the opening statements and closing arguments in their entirety.
Because appellant’s abstract is deficient such that we cannot reach the issues on appeal,
we order that he file within fifteen days a substituted abstract, brief, and addendum that
includes an abstract of the suppression hearing. Ark. Sup. Ct. R. 4-2(b)(3). Additionally,
before again abstracting such matters as jury selection and openings and closings, counsel
should be prepared to demonstrate that their inclusion is necessary for us to understand or
decide the arguments presented on appeal. See Patton, supra. We encourage appellant to
review our rules and to ensure that no other deficiencies are present. After service of
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Cite as 2013 Ark. App. 476appellant’s substituted brief, the State shall have an opportunity to revise its brief within
fifteen days. We point out that, should appellant fail to file a complying brief within the
prescribed time, the order from which he appealed may be affirmed for noncompliance with
the rule. Ark. Sup. Ct. R. 4-2(b)(3).
Rebriefing ordered.
WYNNE and GRUBER , JJ., agree.
Walker Law Firm, PLLC, by: Kent Walker, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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