{ "id": 1342347, "name": "Daniel W. JOHNSON v. STATE of Arkansas", "name_abbreviation": "Johnson v. State", "decision_date": "2000-10-12", "docket_number": "CR 00-476", "first_page": "357", "last_page": "364", "citations": [ { "type": "official", "cite": "342 Ark. 357" }, { "type": "parallel", "cite": "28 S.W.3d 286" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "264 Ark. 561", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668966 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0561-01" ] }, { "cite": "324 Ark. 328", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9160131 ], "weight": 4, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0328-01" ] }, { "cite": "270 Ark. 983", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709308 ], "weight": 5, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0983-01" ] }, { "cite": "316 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907754 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0208-01" ] }, { "cite": "924 S.W.2d 953", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "325 Ark. 36", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369181 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0036-01" ] }, { "cite": "325 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369147 ], "weight": 4, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0313-01" ] }, { "cite": "17 S.W.3d 499", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 1257772, 1257740 ], "year": 2000, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/341/0524-01", "/ark/341/0523-01" ] }, { "cite": "341 Ark. 523", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257740 ], "year": 2000, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/341/0523-01" ] } ], "analysis": { "cardinality": 618, "char_count": 14347, "ocr_confidence": 0.748, "pagerank": { "raw": 1.6917122842272652e-07, "percentile": 0.6993259066455225 }, "sha256": "fc5e0cfdf13d6d0b064b81c5913c6fdcad9829a04075daa3488e944ac8fadb46", "simhash": "1:2fa560ca376e7d21", "word_count": 2387 }, "last_updated": "2023-07-14T20:01:02.266586+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Daniel W. JOHNSON v. STATE of Arkansas" ], "opinions": [ { "text": "Ray Thornton, Justice.\nAppellant, Danny Johnson, was convicted of second-degree murder in the death of Michael Sammons, and sentenced to twenty years in the Arkansas Department of Correction. The sentence included a fine of $15,000.00.\nHe appealed to the court of appeals, contending first that the State failed to present sufficient evidence to establish the victim\u2019s identity, and second that the trial court committed error in denying his motion to suppress his statement. The court of appeals did not reach the merits of either of these points on appeal, but held that appellant\u2019s abstract did not comply with the provisions of Ark. Sup.Ct. R. 4-2, and affirmed the judgment and conviction because of a flagrantly deficient abstract.\nAppellant petitioned this court for review of the court of appeals\u2019s decision and argued that the decisions of the court of appeals and this court appear to be inconsistent interpretations of our court rules. We granted review for the limited determination of whether appellant\u2019s conviction was properly affirmed for noncompliance with Ark. Sup. Ct. R. 4-2. See Johnson v. State, 341 Ark. 523, 17 S.W.3d 499 (2000)(per curiam). Appellant argues that his abstract is not flagrantly deficient, and that the court of appeals erred in affirming his case on appeal on that basis. We agree that appellant\u2019s abstract was not flagrantly deficient, reverse on that point, and return the case to the court of appeals for further consideration on the merits.\nIn reaching its conclusion that the case must be affirmed because of a flagrantly deficient abstract, the court of appeals found that \u201cdue to numerous errors in appellant\u2019s abstract, we are precluded from addressing his arguments on appeal and we affirm for noncompliance with Arkansas Supreme Court Rule 4-2\u201d and cited five deficiencies. These deficiencies were that appellant: (1) failed to abstract his notice of appeal; (2) abstracted unnecessary documents; (3) failed to abstract the trial courts ruling on his motion to suppress; (4) failed to provide a copy of his videotaped confession or to abstract the substance of the confession; and (5) failed to double space portions of his abstract.\nArkansas Supreme Court Rule 4-2 in relevant part states:\n(6) Abstract. The appellant\u2019s abstract or abridgment 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 the Court for decision. A document included in the Addendum pursuant to Rule 4-2(a)(8) should not be abstracted. A document, such as a will or contract, may be photocopied and attached as an exhibit to the abstract. However, the document or the necessary portions of the document must be abstracted. Mere notation such as \u201cplaintiffs exhibit no. 4\u201d is not sufficient. On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the record filed on any prior appeal. Not more than two pages of the record shall in any instance be abstracted without a page reference to the record. In the abstracting of testimony, the first person (i.e., \u201cI\u201d) rather than the third person (i.e., \u201cHe, She\u201d) shall be used. The Clerk will refuse to accept a brief if the testimony is not abstracted in the first person or if the abstract does not contain the required references to the record. In the abstracting of depositions taken on interrogatories, requests for admissions, and the responses thereto, and interrogatories to parties and the responses thereto, the abstract of each answer must immediately follow the abstract of the question. Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion.\n* * *\n(3) Whether or not the appellee has called attention to deficiencies in the appellant\u2019s abstract, the Court may treat the question when the case is submitted on its merits. If the Court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant\u2019s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant\u2019s counsel, as the Court may direct.\nArk. Sup. Ct. R. 4-2. We have often held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996). This court does not presume error simply because an appeal is made. Id. It is the appellant\u2019s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that, which is abstracted. Id. We have noted that with only one record on appeal and seven justices, it is essential that the material parts of the record be abstracted. Davis v. State, 325 Ark. 36, 924 S.W.2d 953 (1996). We have also noted that when an abstract is so deficient that we cannot discern what happened in the trial court, we must affirm. Id. Additionally, we have said that as long as we can determine from a reading of the briefs and appendices material parts necessary for an understanding of the questions at issue, we will render a decision on the merits. Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994).\nTo determine whether the court of appeals erred in holding that appellant\u2019s abstract is flagrantly deficient, it is necessary to review the deficiencies as articulated by the court of appeals. First, the court of appeals found that appellant failed to abstract the trial court\u2019s ruling on his motion to suppress. Appellant\u2019s abstract states, \u201cThe court informs counsel the motion to suppress the statement has been denied.\u201d Looking to the exact ruling by the trial court in the record it is clear that appellant properly abstracted this ruling. Specifically, the record states: \u201cThe court: Let the record reflect that the pending motion for suppression filed on behalf of the defendant has been denied.\u201d Additionally, appellant\u2019s abstract provided enough information for appellate review of the issue. We conclude that the court of appeals erred in finding that appellant\u2019s abstract was deficient on this issue.\nNext, the court of appeals determined that appellant failed to provide a copy of his videotaped confession or to abstract the substance of the confession. The court of appeals\u2019s finding on this point is erroneous. Appellant\u2019s abstract did include a transcript of the videotaped confession which was detailed enough to allow a reviewing court to consider suppression issues on appeal. Because the videotape is transcribed in appellant\u2019s abstract, the court of appeals\u2019s finding that appellant\u2019s abstract was deficient on this point was in error.\nThe court of appeals also held that appellant\u2019s abstract was deficient because it included excessive information relating to \u201cthe sentencing proceedings, which were irrelevant in this case, as he alleged no sentencing error below or on appeal.\u201d In Kirk v. State, 270 Ark. 983, 606 S.W.2d 755 (1980), a case decided under the previous Supreme Court Rule on abstracting, we discussed the issue of including excessive information in an abstract. We held:\nRul\u00e9 9(d) of the Rules of Supreme Court requires that appellant abstract only such material parts of the record as are necessary for this court to fully understand the questions presented. In the present case, as the issues on appeal involved only a portion of the voir dire proceedings, it was wholly unnecessary for appellant to utilize over forty pages of his brief to abstract the testimony presented at trial. Stricter compliance with Rule 9(d) would result in a more efficient use of counsel\u2019s time and energy, as well as those of this court.\nId. However, in Kirk, we concluded that although the appellant included excessive material in his abstract, w\u00bf did not find the abstract deficient and we reviewed the case on its merits. Id.\nTurning to the case now on review, we note that appellant\u2019s abstract is forty-eight pages, and the entire record in this case is 685 pages. The \u201cirrelevant information\u201d to which the court of appeals refers consists of four-and-one-half pages of abstracted testimony presented to the jury during the sentencing-phases of the trial. We do not find the inclusion of four and one-half extra pages in a forty-eight-page abstract to be so excessive as to render the abstract flagrantly deficient. We do observe, as we did in Kirk, that stricter compliance with Ark. Sup. Ct. R. 4-2 (a) (5) would have resulted in a more efficient use of counsel\u2019s time and energy, as well as that of this court.\nThe court of appeals found that appellant\u2019s abstract was flagrantly deficient because he single-spaced the portion of his abstract which contains the trial proceedings and the pretrial hearing on the motion to suppress in violation of Ark. Sup. Ct. R. 4-1. Rule 4-1 (a) states in relevant part that \u201cbriefs shall be double-spaced, except for quoted material, which may be single-spaced and indented.\u201d Id. Rule 4-1 also states that \u201cbriefs not in compliance with this rule shall not be accepted by the clerk.\u201d Ark. Sup. Ct. R. 4-1 (d). We conclude that because a significant portion of appellant\u2019s abstract was single-spaced it did not comply with Rule 4-1 (a). However, we note that the proper remedy for failure to comply with Rule 4-1, as provided by that rule, was for our clerk to refuse to accept the tendering of appellant\u2019s brief when it was presented to the clerk of the court\u2019s office. Our clerk improperly allowed the single-spaced brief to be filed in violation of Rule 4-1, and we do not hold that this mistake resulting from our clerk\u2019s failure to enforce the rule should be treated as a flagrant deficiency.\nNext, the court of appeals concluded that appellant\u2019s abstract was deficient because it did not include a notice of appeal. Because we have determined that appellant\u2019s abstract was not insufficient in other areas, the omission of the notice of appeal is the only remaining deficiency in appellant\u2019s abstract.\nThe clerk of the court has the responsibility of determining whether an appeal is timely filed and usually makes that determination by reviewing the notice of appeal in the record. We note that in this case a timely notice of appeal was included in the record. However, the notice of appeal was not abstracted. The issue is presented whether the failure to abstract the notice of appeal, standing alone, is a sufficient omission to render the abstract flagrantly deficient. We have held in a prior criminal case that an abstract which failed to include a notice of appeal was flagrantly deficient. In Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996), we were asked to review an appellate brief, which omitted the notice of appeal, as well as other critical portions of the record from the abstract. We wrote:\n[T]his abstract sinks to the level of being flagrandy 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\u2019s 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 \u2014 we are only to assume that fact. Moreover, it is only from the supplemental abstract provided in appellee\u2019s 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\u2019s 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\u2019s objection.\nId.\nWe note that the notice of appeal must be abstracted in a civil case because it allows the appellate court to determine whether jurisdiction is proper. However, in criminal cases the timeliness of a notice of appeal is not as essential because under well-established precedents a belated appeal may be granted where there has been a failure to file a timely appeal. We have adopted a procedure in criminal appeals that permits an attorney, who accepts fault, to file a belated appeal. See Harkness v. State, 264 Ark. 561 (1978). For that reason, the relevancy or materiality of a timely notice of appeal in criminal appeals is less vital. Accordingly, we overrule the language in Mayo, supra, that suggests that the inclusion of a notice of appeal in the abstract of a criminal appeal is essential. We hold that the omission of appellant\u2019s notice of appeal, in the circumstances of this case, does not require this abstract to be rejected as flagrantly deficient.\nBecause we conclude that appellant\u2019s abstract was not flagrantly deficient, we reverse the decision on that issue and return this case to the court of appeals for further disposition.", "type": "majority", "author": "Ray Thornton, Justice." } ], "attorneys": [ "William O. James and Clay T. Buchanan, for appellant.", "Mark Pryor, Att\u2019y Gen., by: C. Joseph Cordi, Jr., Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Daniel W. JOHNSON v. STATE of Arkansas\nCR 00-476\n28 S.W.3d 286\nSupreme Court of Arkansas\nOpinion delivered October 12, 2000\nWilliam O. James and Clay T. Buchanan, for appellant.\nMark Pryor, Att\u2019y Gen., by: C. Joseph Cordi, Jr., Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0357-01", "first_page_order": 381, "last_page_order": 388 }