APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-15-2690]
HONORABLE HERBERT WRIGHT, JUDGE
PER
CURIAM
Zavier
Marquis Pree has appealed from his conviction by a Pulaski
County jury of capital murder, aggravated robbery, and a
firearm enhancement, for which he received, respectively, a
sentence of life without parole, a concurrent term of forty
years, and a consecutive term of ten years in the Arkansas
Department of Correction. However, there are omissions in the
record that must be corrected before this case is submitted.
These omissions affect both the issue raised on direct appeal
and our review pursuant to Arkansas Supreme Court One Rule
4-3(i).
A.
Direct Appeal
One of
the two issues that Mr. Pree raises on direct appeal concerns
the denial of his motion to suppress his custodial statement.
The entire interrogation was recorded. A transcript of the
interrogation was submitted to the circuit court as an
exhibit at the suppression hearing. However, we know from the
circuit court's order disposing of the motion to
suppress, as well as an acknowledgment by the circuit judge
on the record that he had viewed the video of the
interrogation. Although Mr. Pree and the State agreed to the
viewing, there is no indication by the circuit court of what
exactly was viewed, as the viewing was done without counsel
present. Only a redacted version of the interrogation, which
was presented to the jury, is included in the record.
In our
review, we are tasked with determining voluntariness of a
custodial statement. In viewing the totality of the
circumstances, we consider factors that include the age,
education, and intelligence of the accused; the lack of
advice as to his constitutional rights; the length of
detention; the repeated and prolonged nature of questioning;
the use of mental or physical punishment; the statements made
by the interrogating officers; and the vulnerability of the
accused. Conner v. State, 334 Ark. 557, 982 S.W.2d
655 (1998). The video is the best evidence of the
above-referenced factors.
In
accordance with Rule 6(e) of the Arkansas Rules of Appellate
Procedure -Civil, we order the circuit court to supplement
the record on appeal with a copy of the video that was viewed
by the circuit court. Rule 6(e) states in pertinent part:
Correction or Modification of the Record. If any difference
arises as to whether the record truly discloses what occurred
in the circuit court, the difference shall be submitted by
motion to, and settled by, that court and the record shall be
made to conform to the truth. If anything material to either
party is omitted from the record by error or accident or is
misstated therein, . . . the appellate court . . . on its own
initiative, may direct that the omission or misstatement
shall be corrected, and if necessary, that a supplemental
record be certified and transmitted.
It is
incumbent on this court to review all the evidence that the
circuit court had before it. We therefore order that a copy
of the video be placed in the trial record along with
appropriate certification by the circuit court. A copy of the
video should also be placed in the addendum of the
appellant's brief.
B.
Arkansas Supreme Court Rule 4-3(i)
In a
motion filed October 4, 2018, Pree's appellate counsel
requested supplementation of the filed record because he
identified several hearings and court appearances that had
not been transcribed but had resulted in rulings that were
adverse to his client. We granted the motion by formal order
entered on November 2, 2018.
Pree's
trial counsel, however, did not order every hearing and court
appearance to be transcribed. He apparently reasoned that his
obligation under Rule 4-3(i) to abstract only those
hearings and court appearances that resulted in an adverse
ruling for his client did not require the transcription of
hearings where the circuit court's actions were not
adverse to his client. Accordingly, Pree's trial
counsel did not order transcription of the following:
a. 01/19/2016: request for psychological evaluation granted
b. 03/22/2016; appearance to receive State Hospital report;
court set 04/12/2016: a ...