Cite as 2013 Ark. App. 668
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-204
TRENTON HOLLEY Opinion Delivered November 13, 2013
APPELLANT
APPEAL FROM THE FAULKNER
V. COUNTY CIRCUIT COURT
[NO. 23CR-11-448]
STATE OF ARKANSAS HONORABLE CHARLES E.
APPELLEE CLAWSON, JUDGE
REMANDED TO SETTLE AND
SUPPLEMENT THE RECORD;
REBRIEFING ORDERED
BRANDON J. HARRISON, Judge
A Faulkner County jury found Trenton Holley guilty of sexual assault in the second
degree. He was sentenced to seventeen years in the Arkansas Department of Correction.
Holley argues on appeal that the circuit court erred in denying his motion to suppress
statements made during his custodial interrogation and that the circuit court erred in
admitting certain evidence during the sentencing phase. We cannot decide the merits of
Holley’s appeal at this point because his brief and the record have not been prepared as the
Arkansas Supreme Court Rules and the Administrative Orders of the Supreme Court require.
We first address Holley’s brief. One problem is that his entire abstract is single spaced,
which violates Ark. Sup. Ct. R. 4-1(a) (2013). Second, Holley has failed to abstract material
portions of the pretrial hearings and the hearing that he notes in his argument. Ark. Sup. Ct.
R. 4-2(a)(5) (2013). Third, Holley’s argument section cites predominantly to the record and
Cite as 2013 Ark. App. 668
not to the abstract and addendum as required by Ark. Sup. Ct. R. 4-2(a)(7).
Moreover, Holley’s addendum does not include the audio CDs that were played to the
jury. Rule 4-2(a)(8)(A)(i) requires that the addendum contain the CDs if they are essential
to our understanding of the case. The CDs are essential to the understanding of this case and
to this court’s ability to make a decision on the merits. Furthermore, we have stated before
that when an audio recording has been played to the jury and the recording relates to a point
on appeal, then abstracting of the recorded testimony is deferred only if the recorded
statement is completely incomprehensible. Dillard v. State, 2012 Ark. App. 503. There has
been no such assertion by the parties in this case. This leads us to the record deficiency that
requires a remand to settle the record.
In the absence of a proper waiver, Administrative Order No. 4(a) imposes a duty on
the circuit court to require that a verbatim record be made of all proceedings pertaining to
any contested matter before the court or the jury. Ark. Sup. Ct. Admin. Order No. 4(a)
(2013). Therefore we remand this case to the circuit court to settle the record by requiring
that a verbatim transcription be made of any audio recording that was played at trial. The
record on appeal must be supplemented with the transcript of the audio material within thirty
days of this opinion’s date. See Patton v. State, 2013 Ark. App. 131; Dillard, supra. Holley
must then include, in his substituted brief, an abstract of the transcribed audio recordings. See
Copeland v. State, 2013 Ark. App. 369.
Finally, Holley’s brief includes an “Appendix” in addition to his addendum. Our rules
do not recognize appendices. Ark. Sup. Ct. R. 4-2. The appendix seems to consist of
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Cite as 2013 Ark. App. 668
unredacted transcripts of three audio exhibits that were played to the jury. But the transcripts
in Holley’s appendix are not in the record. We will not consider material outside of the
record and this material must be removed from the brief. See Lowe v. State, 2012 Ark. 185.
We strongly encourage Holley—before filing a substituted brief—to review our rules
and avoid any other deficiencies besides the ones we have pointed out. After the record is
settled and the supplemental record has been filed in this court, Holley will have fifteen days
to file a substituted brief. Ark. Sup. Ct. R. 4-2(b)(3). The State may revise or substitute its
brief within fifteen days of the filing of Holley’s substituted brief, or it may rely on its
previously filed brief.
Remanded to settle and supplement the record; rebriefing ordered.
GRUBER and WHITEAKER, JJ., agree.
Blagg Law Firm, by: Ralph Blagg and Nicki Nicolo, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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