Newman v. State

                                    Cite as 

                SUPREME COURT OF ARKANSAS
                                       No.   CR-12-118

RICKEY DALE NEWMAN                                Opinion Delivered   September 12, 2013
                               APPELLANT
                                                  APPEAL FROM THE CRAWFORD
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CR-2001-109]

STATE OF ARKANSAS                                 HONORABLE GARY COTTRELL,
                                  APPELLEE        JUDGE

                                                  REBRIEFING ORDERED.


                                       PER CURIAM


       Appellant Rickey Dale Newman brings this appeal from the order entered by the Van

Buren County Circuit Court denying his petition for writ of error coram nobis. For reversal,

Newman contends that (1) the circuit court erred in denying his motion for judgment on

the pleadings; (2) the circuit court erred in finding that he was mentally competent at the

time of trial; (3) the circuit court abused its discretion by refusing to admit evidence of his

innocence; (4) the circuit court erred in finding that the prosecution did not fail to disclose

exculpatory information in violation of Brady v. Maryland, 

 (1963); and (5) the

circuit court abused its discretion by refusing to consider alleged Brady violations in addition

to those contained in the petition for writ of error coram nobis. We order rebriefing because

Newman’s abstract and addendum are deficient.

       Newman is currently under sentence of death upon his conviction of capital murder

in 2002. This court previously granted his petition to reinvest jurisdiction in circuit court
                                    Cite as 

to proceed with a petition for writ of error coram nobis on two grounds: (1) whether

Newman was mentally competent at the time of trial; and (2) whether the prosecution failed

to disclose exculpatory information in violation of Brady, supra. Newman v. State, 

, 

. This appeal arises from the circuit court’s denial of the petition.

        Arkansas Supreme Court Rule 4-2(a)(5) (2012) requires an abstract of stenographically

reported material that is essential for the appellate court to understand the case and to decide

the issues on appeal. With regard to pro se appellants who are incarcerated and pursuing

postconviction relief, our rules instruct that material parts of a prior trial must be abstracted

when important to an understanding of issues raised on appeal. Ark. Sup. Ct. R. 4-7(c)(1)(A)

(2012). No less is required of those who are represented by counsel.

        Newman’s first issue on appeal is that the circuit court erred in denying his motion

for judgment on the pleadings. In that motion, he asserted that the judge who presided over

his trial was presented with abundant evidence of his bizarre and irrational behavior that

should have caused him to entertain serious doubt about his competency and that, based on

the record of trial, he was entitled to coram-nobis relief without the necessity of any further

hearing on the issue of his competency. Addressing this issue on the merits requires this

court to consider the record of trial. However, Newman has neglected to provide an abstract

of the trial.

        An abstract of the trial record is also necessary for a proper evaluation of Newman’s

Brady claims. There are three elements of a Brady violation: (1) the evidence at issue must

be favorable to the accused, either because it is exculpatory or because it is impeachment; (2)


                                               2
                                    Cite as 

the evidence must have been suppressed by the State, either willfully or inadvertently; and

(3) prejudice must have ensued. Howard v. State, 

, 

. With

respect to a showing of prejudice, it must be determined that there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would have

been different. 

 This court cannot gauge prejudice without having an abstract of the trial

proceedings.

       In addition to these abstracting deficiencies, Arkansas Supreme Court Rule 4-

2(a)(8)(A)(i) requires an appellant’s addendum to include all related briefs concerning the

order, judgment, or ruling challenged on appeal.         Kennedy v. Morales, 

.

However, Newman failed to include in the addendum the parties’ posthearing briefs that were

submitted to the circuit court for use in making its decision.

       Newman’s abstract and addendum are inadequate. Accordingly, Newman has fifteen

days from the date of this order to file a substituted abstract and addendum that comply with

our rules. Ark. Sup. Ct. R. 4-2(b)(3). Further, we encourage Newman to review our rules

to ensure that no additional deficiencies are present.

       Rebriefing ordered.



       Julie Brain, Delaware Federal Defender Office, for appellant.

       Dustin McDaniel, Att’y Gen., by: Darnisa Evans Johnson, Deputy Att’y Gen., for

appellee.




                                              3