Kendrick Gillum v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 29, 2001

KENDRICK GILLUM

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-887

AN APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY,

NO. CR-97-439B

HONORABLE DAVID BURNETT,

CIRCUIT JUDGE

AFFIRMED

At the conclusion of their joint trial in the Crittenden County Circuit Court, CR97-439A-C, appellants Antonio Williams, Kendrick Gillum, and Demarco Wilson were convicted by a jury of the capital murder of Charles Newsome. The Circuit Court filed a judgment and commitment order for each appellant sentencing him to a term of life imprisonment in the Arkansas Department of Correction without the possibility of parole. We affirmed the convictions and sentences. See Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Appellant, Kendrick Gillum, subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The circuit court held a hearing on appellant's petition and denied relief. On appeal, appellant raises seven issues for reversal. We affirm because appellant has failed tocomply with our abstracting rules.1

It is well established that the abstract is the record for purposes of appeal. Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997). The burden is clearly placed on the appealing party to provide both a record and abstract sufficient for appellate review. Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997).

Rule 4-2(a)(6) of the Rules of the Supreme Court and Court of Appeals provides that the appellant's abstract or abridgement of the record should consist of an impartial condensation, without comment or emphasis, 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 this court for decision. When an abstract is flagrantly deficient, we may affirm for noncompliance with the abstracting requirements. Ark. R. Sup. Ct. 4-2(b)(2). The rules are not relaxed for pro se appellants. Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998); Jewell v. Arkansas State Bd. of Dental Examiners, 324 Ark. 463, 921 S.W.2d 950 (1996).

Here, appellant has failed to abstract crucial evidence that he relies on in each of his arguments. For example, appellant challenges the testimony and statement of Jeff Cayton; however, appellant has not abstracted the challenged testimony. Appellant has also failed to abstract the ballistic report, names of challenged jurors or the voir dire, the complete relevant testimony of Kevin Mainhart and Dr. Frank Peretti, and evidence to show why a severance waswarranted. In fact, appellant's abstract excludes evidence that is needed to determine if counsel's performance was so deficient as to undermine the outcome of the trial. Because appellant's abstract fails to comply with Rule 4-2(a)(6), we affirm.

Affirmed.

1 Cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System -- Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, Ark. Appx. __, __ S.W.3d __ (2001) (per curiam).