Rainey v. State , 2016 Ark. App. 505 ( 2016 )

Cite as 2016 Ark. App. 505
ARKANSAS COURT OF APPEALS
DIVISION I
No.CR-12-950
Opinion Delivered: OCTOBER 26, 2016
THOMAS RAINEY APPEAL FROM THE DALLAS
APPELLANT COUNTY CIRCUIT COURT
[NO. 20CR-10-26]
V.
HONORABLE DAVID CLINGER,
JUDGE
STATE OF ARKANSAS
APPELLEE REBRIEFING ORDERED; COUNSEL
SUBSTITUTED
KENNETH S. HIXSON, Judge
Appellant Thomas Rainey appeals after a Dallas County jury found him guilty of
possession of cocaine with intent to deliver and possession of drug paraphernalia. He was
sentenced to an aggregate term of 480 months’ imprisonment. Appellant lists four points
on appeal in his substituted brief: (1) the trial court erred in denying his motion to suppress
evidence; (2) the trial court erred in denying his motion to suppress statements; (3) whether
“the legal status of a confidential informant in providing information to officers is relevant
to the determination of the officers[’] conclusion of probable cause to stop a vehicle, even
though the officers articulated another reason for effectuating the stop”; and (4) he was
denied the right to confront the confidential informant. Because of briefing deficiencies,
we previously ordered rebriefing. See Rainey v. State, 2015 Ark. App. 341. Although
appellant has filed a substituted brief, the brief is still deficient, and appellant has failed to
Cite as 2016 Ark. App. 505
correct the deficiencies identified in our previous order. Therefore, we order rebriefing
again and appoint substituted counsel.
Arkansas Supreme Court Rule 4-2(a)(5) (2015) provides in pertinent part,
(5) Abstract. The appellant shall create an abstract of the material parts of all the
transcripts (stenographically reported material) 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.
(A) Contents. All material information recorded in a transcript
(stenographically reported material) must be abstracted. Depending on the
issues on appeal, material information may be found in, for example, counsel’s
statements and arguments, voir dire, testimony, objections, admissions of
evidence, proffers, colloquies between the court and counsel, jury instructions
(if transcribed), and rulings. All material parts of all hearing transcripts, trial
transcripts, and deposition transcripts must be abstracted, even if they are an
exhibit to a motion or other paper. Exhibits (other than transcripts) shall not
be abstracted. Instead, material exhibits shall be copied and placed in the
addendum. If an exhibit referred to in the abstract is in the addendum, then
the abstract shall include a reference to the addendum page where the exhibit
appears.
(B) Form. The abstract shall be an impartial condensation, without comment
or emphasis, of the transcript (stenographically reported material). The
abstract must not reproduce the transcript verbatim. No more than one page
of a transcript shall be abstracted without giving a record page reference. In
abstracting testimony, the first person (“I”) rather than the third person (“He
or She”) shall be used. The question-and-answer format shall not be used.
In the extraordinary situations where a short exchange cannot be converted
to a first-person narrative without losing important meaning, however, the
abstract may include brief quotations from the transcript.
We previously encouraged appellant’s counsel “to ensure that her arguments on each
point of appeal, along with the trial court’s rulings, appear in the abstract.” Rainey, 2015
Ark. App. 341, at 3. Instead of following this court’s directive, counsel noted the following
on pages 19 and 21 of the supplemental abstract:
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Thereafter the attorneys made closing arguments. (Arguments omitted since brief
addresses the same arguments)
....
WHEREUPON THE ATTORNEYS MADE CLOSING ARGUMENTS
(OMITTED AS ARGUMENTS INCLUDED IN BRIEF)
In order for us to address the merits of appellant’s points on appeal, we must have a brief
that includes an abstract of the proceedings necessary for this court’s understanding of the
issues on appeal, including the relevant oral arguments and oral rulings of the trial court.
Additionally, we note that there are at least two pages missing in appellant’s
addendum, specifically, pages 95 and 97. Page 97 should contain the second page of
appellant’s second amended sentencing order and is required for our review. See Ark. Sup.
Ct. R. 4-2(a)(8)(A)(i) (providing that the addendum must include the order from which the
appeal is taken and all versions of the order (however named) being challenged on appeal if
the court amended the order). Thus, rebriefing is required in this case.
However, we note that appellant’s counsel, Ms. Teresa L. Bloodman, has recently
been placed on interim suspension pending disbarment proceedings. Therefore, we find it
necessary to remove Ms. Bloodman and to appoint Mr. Jonathan Streit to represent appellant
in his appeal, and the clerk of this court shall establish a new briefing schedule. We
additionally direct the clerk to forward a copy of this opinion to the Arkansas Supreme
Court Committee on Professional Conduct. Finally, we encourage substituted counsel to
review our rules to ensure that no additional deficiencies are present before submitting a
substituted brief in this appeal.
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Cite as 2016 Ark. App. 505
Rebriefing ordered; counsel substituted.
GLOVER and HOOFMAN, JJ., agree.
Teresa Bloodman, for appellant.
Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.
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