Scott v. State, CR 01-1052.

CourtSupreme Court of Arkansas
Citation139 S.W.3d 511,355 Ark. 485
Docket NumberNo. CR 01-1052.,CR 01-1052.
PartiesRicky Lee SCOTT v. STATE of Arkansas.
Decision Date18 December 2003

Appeal from the Circuit Court, Cross County, L.T. Simes, II, J Deenita Monk, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Katherine Adams, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Justice.

Ricky Lee Scott appeals the Cross County Circuit Court's denial of his petition for postconviction relief. His prior appeal from the denial of his petition for postconviction relief was reversed and remanded to the trial court to make sufficient written findings of fact and conclusions of law as required under Ark. R.Crim. P. 37.3(c)(2003). Scott v. State, 351 Ark. 619, 96 S.W.3d 732 (2003). Scott's conviction for first-degree murder and sentence of life imprisonment were affirmed in Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999)("Scott I").

Scott asserts that he is entitled to Rule 37 relief because of: 1) a failure to abstract the docket thereby depriving him of review of the violation of his right to a speedy trial; 2) a failure to properly investigate and assert prior inconsistent statements regarding ballistics; and 3) a failure to seek a mistrial when inadmissible evidence regarding an alleged rape by Scott was introduced. We find no reversible error and affirm the denial of the petition for postconviction relief.

This court has jurisdiction of this case pursuant to Ark. S.Ct. R. 1-2(a)(2)(2003).


Scott was convicted of the homicide of fifteen year old Robert Smith. Smith died of gunshot wounds. The evidence showed that Smith and four other persons were changing a tire in the driveway of Smith's aunt's home where Smith was living. According to the witnesses, Scott came around the side of the house and began firing a pistol. Several witnesses identified Scott as Smith's killer.

Standard of Review

In reviewing a claim of ineffective assistance of counsel, the reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. McGehee, supra. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In determining a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). This court will not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). To prevail on a claim of ineffective assistance of counsel, Scott must show that counsel's representation fell below an objective standard of reasonableness and that but for counsel's errors, the result of the trial would have been different. McGehee, supra; Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Insufficient and Incomplete Record

Scott argues first that he is entitled to Rule 37 relief due to a failure to create and provide this court with a complete record sufficient to allow a meaningful review. Scott cites Ward v. State, 321 Ark. 659, 660, 906 S.W.2d 685 (1995), where this court stated, "If a record of trial is insufficient to permit a full review of the proceedings from which an appeal has been taken, we have no alternative but to reverse and order a new trial." Scott also cites Jacobs v. State, 327 Ark. 498, 503, 939 S.W.2d 824 (1997), where we stated that in a case involving a sentence of life without parole, "[o]ur rules require us to examine the record for all errors prejudicial to the defendant...." We note that in Ward, that there were numerous errors in the transcript, misidentified speakers, bench conferences that were not reported, and an unsuccessful attempt to settle the record. In Jacobs, the court reporter's tapes and records were vandalized and made useless. Also in Jacobs, an attempt was made to reconstruct or settle the record under Ark. R.App. P.-Civ. 6; however, the attempt was unsuccessful. Thus, in both Ward and Jacobs, significant and critical portions of the record were missing. McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997), is also relevant. In McGehee, the court reporter's tapes were missing. Transcripts of bench conferences and trial testimony were not in the record. Testimony was attributed to the wrong witnesses. The accuracy of transcriptions were disputed by counsel, and there were other errors. The prosecution agreed that the court reporter should not have certified the transcript. Again, in McGehee, there was an unsuccessful attempt to reconstruct the record. In McGehee, we stated:

In Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982), we held that where there is virtually no record of the proceedings conducted out of the presence of the jury and where the record is inadequate for appellate review, the appellate court can do nothing other than remand for a new trial.

McGehee, 328 Ark. at 413, 943 S.W.2d 585. The responsibility of keeping a complete record lies with the trial court. Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988).

We recently stated that while we agree that there is a preference for a complete record, a full and complete record is not necessarily required where the existing record is sufficient for us to perform a review for errors prejudicial to the rights of the appellant. Lewis v. State, 354 Ark. 359, 123 S.W.3d 891 (2003); Ark.Code Ann. § 16-91-113(a)(1987); Ark. S.Ct. R. 4-3(h) (2003). The notice of appeal filed by Scott on March 18, 1998, requested transcription of the "entire record, including all pretrial hearings, in chambers proceedings, jury selection, testimony and exhibits, and every and all other matters presented in the trial of this matter." We note that in Howell v. State, 350 Ark. 47, 84 S.W.3d 442 (2002) the appellant requested the entire record but the record provided did not include voir dire and jury selection. In Howell, we stated:

In addition, pursuant to Supreme Court Rule 4-3(h)(2002), when the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark.Code Ann. § 16-91-113(a) ... Although the Attorney General made such certification in this case, a complete review is impossible to make without a true and complete transcript of the record.

Howell, 350 Ark. at 48, 84 S.W.3d 442. There is no question that prejudicial errors may occur during jury selection and voir dire. Therefore, this court had to review that portion of the record. In the present case, Scott complains that this court was deprived of the opportunity to review hearings on arraignment, bond for release, a September 13, 1996 hearing, an ex parte hearing on February 28, 1997, and an additional unidentified ex parte hearing.

We first consider Scott's arguments regarding arraignment. Scott is correct that the docket does not reflect that a formal arraignment took place. Citing Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980), Scott argues that in failing to assure that the arraignment hearing took place, counsel deprived Scott of the "critical due process requirement of arraignment," and that thereby the judgment is rendered void and open to collateral attack in a Rule 37 proceeding. The lack of a record of arraignment is not discussed in Neal. Neal does stand for the proposition that a Rule 37 petition may raise questions that might have been raised on direct appeal where they "are so fundamental as to render the judgment void and open to collateral attack." Neal, 270 Ark. at 447, 605 S.W.2d 421. Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). Scott has not showed that he was prejudiced in any way by a lack of a record on arraignment.

From the record it is not possible to determine whether a formal arraignment took place. Arraignment is the reading of the indictment to the criminal defendant and asking for a plea of guilty or not guilty to the charge." Nance v. State, 323 Ark. 583, 602, 918 S.W.2d 114 (1996); Ark.Code Ann. § 16-91-113(a)(1987). Scott appears to be arguing that his due process rights were violated by a lack of a prompt first appearance in an arraignment hearing. In Arkansas, a criminal defendant's right to a prompt first appearance and determination of whether he or she may be restrained in custody is handled by a probable cause hearing. Nance, supra; Ark. R.Crim. P. 8.1 (2003). Further, where a criminal defendant is tried on a plea of not guilty without objection, the right created under the statutes to arraignment is waived. Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 (1973); Hill v. State, 251 Ark. 370, 472 S.W.2d 722 (1971); Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 (1959). The issue of arraignment is moot.

We next consider Scott's argument regarding the failure to assure that the bond hearings were recorded and included in the record. Scott was convicted, and his conviction was affirmed. Therefore, any issues arising from errors relating to pretrial release and bond are moot. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002); Shields v. State, 348 Ark. 7, 70 S.W.3d 392 (2002). This court does not decide moot issues. See K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000).

Next we consider the September 13, 1996, docket entry. Scott asserts that this docket entry refers to a hearing that was not...

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