Hood v. State

Marcus HOOD v. STATE of Arkansas

CR 96-103                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 20, 1996


1.   Appeal & error -- record on appeal -- statement of evidence or
     proceedings when no report was made or transcript was
     unavailable. -- If no report of the evidence or proceedings at
     a hearing or trial was made, or if a transcript is
     unavailable, the appellant may prepare a statement of the
     evidence or proceedings from the best means available,
     including his recollection; the statement shall be served on
     the appellee, who may serve objections or proposed amendments
     within ten days after service upon it; thereupon the statement
     and any objections or proposed amendments shall be submitted
     to the trial court for settlement and approval and, as settled
     and approved, shall be included by the clerk of the court in
     the record on appeal.

2.   Appeal & error -- record on appeal -- correction or
     modification. -- If any difference arises regarding whether
     the record truly discloses what occurred in the trial court,
     the difference shall be submitted to and settled by that court
     and the record made to conform to the truth; if anything
     material to either party is omitted from the record by error
     or accident or is misstated therein, the parties by
     stipulation, or the trial court, either before or after the
     record is transmitted to the appellate court, or the appellate
     court on proper suggestion, or on its own initiative, may
     direct that the omission or misstatement be corrected, and if
     necessary, that a supplemental record be certified and
     transmitted; all other questions regarding form and content of
     the record shall be presented to the appellate court.

3.   Appeal & error -- motion granted for extension to file brief
     and supplement transcript. -- The supreme court granted
     appellant's motion for an extension of time to file his brief
     and to supplement the transcript, remanding the cause with
     instructions and directing that the record, as reconstructed
     and settled, be filed with the supreme court's clerk within
     thirty-five days.


     Motion for Extension of Time to File Brief and to Supplement
Transcript; granted.
     Michael D. Ray, for appellant.
     No response.

     Per Curiam.*ADVREP*SC11*






MARCUS HOOD,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



CR96-103

Opinion Delivered:  5-20-96

MOTION FOR EXTENSION OF TIME TO
FILE BRIEF AND TO SUPPLEMENT
TRANSCRIPT 



MOTION GRANTED





                           Per Curiam.

     Appellant requests an extension of time to supplement the
transcript and file a brief.  He has filed a partial transcript,
but seeks to complete the record which he states omits the
following:
     (1)  The February 7, 1995 suppression hearing, the court's
ruling and the testimony or evidence bearing on the alleged
coercive nature of the police in obtaining appellant's confession.
     (2)  The court's side-bar conference regarding the appellant's
objection to the state's question to Officer William Setterman, 
"[W]ere you or did you recover anything of an evidentiary value in
the investigation of Shorty Williamson's Service Station in
Hamburg?"
     We grant appellant's motion, and remand this matter to settle
the record, but in doing so, we point out that the foregoing
omissions appear to be matters that can be easily resolved.  First,
if no report of the evidence or proceedings at a hearing or trial
was made, or if a transcript is unavailable, the appellant may
prepare a statement of the evidence or proceedings from the best
means available, including his recollection.  The statement shall
be served on the appellee (here the state), who may serve
objections or proposed amendments thereto within ten days after
service upon it.  Thereupon the statement and any objections or
proposed amendments shall be submitted to the trial court for
settlement and approval and as settled and approved shall be
included by the clerk of the court in the record on appeal.  Ark.
R. App. P. 6(d); see also Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981); Fountain v. State, 269 Ark. 454, 601 S.W.2d 862
(1980).
     Second, if any difference arises as to whether the record
truly discloses what occurred in the trial court, the difference
shall be submitted to and settled by that court and the record made
to conform to the truth.  If anything material to either party is
omitted from the record by error or accident or is misstated
therein, the parties by stipulation, or the trial court, either
before or after the record is transmitted to the appellate court,
or the appellate court on proper suggestion, or on its own
initiative, may direct that the omission or misstatement shall be
corrected, and if necessary, that a supplemental record be
certified and transmitted.  All other questions as to form and
content of the record shall be presented to the appellate court.
Ark. R. App. P. 6(e).
     Keeping the foregoing rules in mind, the parties should be
able to reconstruct the witnesses' testimony given at the
February 7 suppression hearing.  In addition, appellant's concern
over the trial bench conference seems to be resolvable, since from
appellant's own motion, it appears Officer Setterman apparently was
permitted to testify to finding a .357 handgun and five shells, and
Setterman's testimony was confirmed by Officer Tommy Breedlove. 
Appellant objected, stating the state was heading into the same
direction which appellant objected to earlier.  The record reveals
no hint of a bench conference, but only the court's on-record
remarks, "Would the attorneys approach, momentarily.  Until I know
where he's going, I'm going to overrule your objection."  
     From our reading of the existing record, what, if anything,
might be missing should be easily provided and settled upon remand. 
Therefore, we remand this cause with the foregoing instructions and
direct that the record, as reconstructed and settled, be filed with
this court's clerk within thirty-five days, at which time the clerk
will set the briefing schedule.
     DUDLEY, J., not participating.