Mayo v. State

Troy Lee MAYO v. STATE of Arkansas

CR 95-802                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 6, 1996


1.   Appeal & error -- even constitutional arguments not addressed
     if raised for first time on appeal. -- The supreme court will
     not address even constitutional arguments that are raised for
     the first time on appeal.

2.   Appeal & error -- abstracting requirements -- judgment may be
     affirmed for noncompliance -- abstract was flagrantly
     deficient. -- Pursuant to Ark. Sup. Ct. R. 4-2(a)(6), an
     appellant's abstract should consist of an impartial
     condensation of "only such material parts of the pleadings,
     proceedings, facts, documents, and other matters in the record
     as are necessary to an understanding of all questions
     presented to the Court for decision"; in the event the
     appellate court finds an abstract to be "flagrantly
     deficient," Ark. Sup. Ct. R. 4-2(b)(2) provides that the
     judgment below may be affirmed for noncompliance with the
     rule; the supreme court found appellant's abstract to be
     flagrantly deficient because it failed to provide the
     documents and materials necessary to an understanding of the
     Batson issue presented.

3.   Appeal & error -- appellant's burden to produce record
     sufficient to demonstrate error -- record on appeal confined
     to that which is abstracted -- record insufficient to
     demonstrate error. -- The supreme court does not presume error
     simply because an appeal is made; it is the appellant's burden
     to produce a record sufficient to demonstrate error, and the
     record on appeal is confined to that which is abstracted; the
     supreme court has repeatedly held that because there are seven
     justices on the court, it is virtually impossible for all
     seven to read the one record filed with the appeal; where
     appellant failed adequately to abstract the record regarding
     the Batson issue raised in his brief, the supreme court held
     that the record was insufficient to demonstrate error and
     affirmed the conviction.


     Appeal from Monroe Circuit Court; Olly Neal, Judge; affirmed.
     Lewellen & Associates, by: Roy C. Lewellen, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 5-6-96  *ADVREP3*





TROY LEE MAYO,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



CR 95-802



APPEAL FROM THE MONROE COUNTY
CIRCUIT COURT,
NO. CR 93-133,
HON. OLLY NEAL, JUDGE,



AFFIRMED.






     Appellant, Troy Lee Mayo, appeals the order of the Monroe
County Circuit Court sentencing him to forty years imprisonment,
following a jury's verdict of guilty on the charges of rape,
robbery, and first-degree battery.  Jurisdiction of this appeal is
properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2).
     Appellant raises two points for reversal of the judgment and
sentence:  First, that a criminal defendant is not required under
the Equal Protection Clause of the United States Constitution to
follow the ruling of Batson v. Kentucky, 476 U.S. 79 (1986), in
exercising peremptory challenges of jurors; and second, that the
trial court erred in finding that appellant did not articulate non-
discriminatory reasons for exercising its peremptory challenges in
response to the state's objection.  
     As to appellant's first point, we do not reach the merits as
the issue was not properly preserved below nor was it argued to the
trial court.  We have repeatedly held that this court will not
address arguments, even constitutional arguments, raised for the
first time on appeal.  Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).  However, even if this point had been properly
preserved for appeal, we are persuaded that the argument is without
merit, in light of the United States Supreme Court's ruling in
Georgia v. McCollum, 505 U.S. 42 (1992), which held that, "the
Constitution prohibits a criminal defendant from engaging in
purposeful discrimination on the ground of race in the exercise of
peremptory challenges."  Id. at 59 (emphasis added).  As to
appellant's second point, again, we do not reach the merits as the
abstract of the record is flagrantly deficient, due to the fact
that critical portions of the record necessary for review of this
issue are omitted.  Accordingly, we affirm the judgment of
conviction.
     From the abstract provided, we can ascertain that appellant
had used five peremptory challenges to strike white jurors and that
the state had objected to these strikes as being racially-based in
contravention of the ruling in Batson.  After hearing the state's
objection, the trial court found that as to four of the five jurors
it was not "immediately obvious" that the appellant may have had a
"non-racial," or racially-neutral, reason for striking them.  The
trial court then required appellant's counsel to explain why he had
struck the remaining four jurors.  
     As to two of the four jurors, Mr. Davis and Ms. Hickman,
appellant's counsel stated that he had peremptorily challenged them
because they were non-responsive, both verbally and physically, to
some of the questions posed by him.  Appellant's counsel then
explained to the trial court that he had chosen to strike the third
juror, Ms. Nash, because she was a beautician, and he felt that her
exposure in the community would make her more likely to know
something about the case, or to have heard about the case. 
Finally, with regard to the fourth juror, Ms. Porter, appellant's
counsel stated that he was concerned with the fact that she was a
pharmacist by profession and that because her work was some
distance away in Little Rock, she may not have the ability to pay
attention at trial.  
     After hearing the explanations provided by appellant's
counsel, the trial court announced that it was not convinced there
were "non-racial" reasons for striking Mr. Davis and Ms. Hickman,
and thus, the court seated them on the jury, over the appellant's
objection.  With regard to Ms. Nash, the beautician, the trial
court accepted appellant's counsel's explanation for striking her
and denied the state's motion.  Lastly, concerning Ms. Porter, the
trial court noted that although she was a pharmacist, she was no
more medically knowledgeable than a nurse (who presumably had been
selected as a juror, although the abstract does not reveal this),
and that there had been nothing to indicate that she was so
concerned about her job in Little Rock that she could not maintain
attention at trial.  The trial court ultimately found that
appellant's counsel had not provided a "non-racial" explanation for
striking Ms. Porter, and she, too, was seated on the jury.  
     As to the Batson argument made by appellant, we have been
provided very little information with which to reach the merits of
the issue.  Pursuant to Ark. Sup. Ct. R. 4-2(a)(6), an appellant's
abstract should consist of an impartial condensation of "only such
material parts of the pleadings, proceedings, facts, documents, and
other matters in the record as are necessary to an understanding of
all questions presented to the Court for decision."  (Emphasis
added.)  In the event this court finds an abstract to be
"flagrantly deficient," Ark. Sup. Ct. R. 4-2(b)(2) provides that
the judgment below may be affirmed for noncompliance with the Rule. 
We find the abstract submitted in this case to be flagrantly
deficient, as it fails to provide the documents or materials
necessary to an understanding of the issue presented.  
     Specifically, this abstract sinks to the level of being
flagrantly deficient in that it does not contain those documents
which are the bare essentials of an abstract, such as the
information, the judgment and commitment order, and the notice of
appeal.  Particularly, as to the Batson issue, the abstract does
not provide the final composition of the jury which heard the case,
the number of white persons who sat on the jury, the total number
of white persons in the jury venire, or the total number of
peremptory strikes exercised by the appellant.  Furthermore, the
abstract does not provide the relevant colloquy between appellant's
counsel and each of the aforementioned jurors during the voir dire
proceeding, nor does it even state for certain that the appellant
is not white--we are only to assume that fact.  Moreover, it is
only from the supplemental abstract provided in appellee's brief
that we are informed the trial court reimbursed appellant with
three additional peremptory strikes to make up for the three jurors
the court had seated over his objection.  Due to appellant's
failure to include this necessary information in his abstract, we
are unable to determine whether the trial court erred in seating
the three white jurors over the appellant's objection.      
     We do not presume error simply because an appeal is made.  It
is the appellant's burden to produce a record sufficient to
demonstrate error, and the record on appeal is confined to that
which is abstracted.  Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987).  We have repeatedly held that as there are seven
justices on this court, it is virtually impossible for all seven to
read the one record filed with the appeal.  See, e.g., Coney v.
State, 319 Ark. 709, 894 S.W.2d 583 (1995); Franklin v. State, 318
Ark. 99, 884 S.W.2d 246 (1994); Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993).  Due to appellant's failure to adequately
abstract the record as to the Batson issue raised in his brief, we
find that the record is insufficient to demonstrate error.  See,
e.g., Grinning v. City of Pine Bluff, 322  Ark. 45, 907 S.W.2d 690
(1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Acklin
v. State, 319 Ark. 363, 896 S.W.2d 423 (1995).  We hold that
appellant's abstract is flagrantly deficient in violation of Ark.
Sup. Ct. R. 4-2(a)(6), and we affirm the judgment of conviction. 
     Affirmed.
     Dudley, J., not participating.