Houghton v. State

Cite as 2015 Ark. 125
SUPREME COURT OF ARKANSAS
No. CR-14-760
SUSAN HOUGHTON Opinion Delivered March 19, 2015
APPELLANT
V. APPEAL FROM THE JOHNSON
COUNTY CIRCUIT COURT
STATE OF ARKANSAS [NO. CR-11-141]
APPELLEE
HONORABLE WILLIAM M.
PEARSON, JUDGE
REBRIEFING ORDERED.
PER CURIAM
Appellant Susan Houghton appeals from a Johnson County Circuit Court order
denying, without a hearing, her Rule 37 petition. For reversal, Houghton contends that the
circuit court erred in denying her a hearing based on her contention that, during her trial, the
prosecutor violated her rights under the Fifth Amendment to the United States Constitution
by referencing Houghton’s decision not to testify. We are precluded from reaching the merits
of Houghton’s argument, however, due to a deficient abstract.
Arkansas Supreme Court Rule 4-2(a)(5) provides, in relevant 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.
Cite as 2015 Ark. 125
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.
Ark. Sup. Ct. R. 4-2(a)(5)(A) (emphasis added).
While Houghton has included a transcript of the prosecutor’s opening statement in her
addendum, she has failed to abstract any portion of that transcript. The transcript was
appended to her petition for Rule 37 relief. The material in the transcript was the basis for
Houghton’s request for Rule 37 relief. Thus, the transcript material is essential for this court
to decide the issues on appeal, and our rules require such material to be abstracted.
Due to Houghton’s failure to comply with our rule concerning abstracting, we order
Houghton to file a substituted brief, curing the deficiencies in the abstract within fifteen days
from the date of entry of this order pursuant to Rule 4-2(b)(3). After service of the
substituted brief, the State shall have the opportunity to file a responsive brief in the time
prescribed by the supreme court clerk, or it may choose to rely on the brief previously filed
in this appeal. While we have noted the above-mentioned deficiency, we encourage
Houghton’s counsel to review Rule 4-2 in its entirety as it relates to the abstract and
addendum
Rebriefing ordered.
Ernie Witt, for appellant.
Dustin McDaniel, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
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