Kinsey v. State

2016 Ark. App. 38

• Court: Court of Appeals of Arkansas
• Decided: January 20, 2016
• Docket: CR-15-521
• Status: Published

Opinion

Cite as 2016 Ark. App. 38

ARKANSAS COURT OF APPEALS

No. CR-15-521

GREGORY AARON KINSEY Opinion Delivered January 20, 2016 APPELLANT APPEAL FROM THE SEBASTIAN V. COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. CR-2013-664] STATE OF ARKANSAS APPELLEE HONORABLE STEPHEN TABOR, JUDGE

MOTION TO REMAND TO CORRECT RECORD. REMANDED FOR CORRECTION OF THE RECORD

PER CURIAM

Appellant Gregory Aaron Kinsey was convicted in the Sebastian County Circuit

Court on one count of first-degree murder and one count of second-degree murder and

sentenced to a total of seventy years’ imprisonment. Appellant filed an appeal, and the record

was lodged with this court. On November 5, 2015, appellant filed an amended petition for

writ of certiorari to complete the record, or in the alternative, motion to remand to settle the

record.1 Appellant alleged that five audio and video recordings played during trial had not

been transcribed by the court reporter. These included two videos of appellant’s statement;

several audio “jail calls”; and a video of a witness’s statement. On November 18, 2015, we

1 This pleading amended an original petition and motion filed on October 30, 2015. Cite as 2016 Ark. App. 38

granted appellant’s amended petition, issued the writ, and directed the circuit court to

complete the transcript within thirty days. We ordered appellant’s brief to be filed thirty days

after the supplemental record was lodged.

The circuit court filed a supplemental record on December 15, 2015. That same day,

appellant filed a new motion to remand to correct the record, claiming that three of the five

recordings played during the trial and mentioned in his amended petition had still not been

transcribed. He requests this court to remand to the circuit court to correct these issues. We

address each error individually.

The first alleged error in the transcript is appellant’s statement. The State introduced

a DVD of the statement, which was played at record page 1199 (R. 1199).2 The original

record that was lodged did not contain a transcript of what was played. The supplemental

record addresses that error and includes a transcript of that video. On cross-examination, the

defense played a short excerpt of a video of a statement by appellant at R. 1216. According

to appellant’s counsel, the DVD introduced by the State does not contain this excerpt. The

supplemental record does not include a transcription of this excerpt.

Appellant’s amended petition also requested that the audio of two “jail calls” played

at trial be transcribed. The call played at R. 1418 is transcribed in the supplemental record;

the call played at R. 1683 is not transcribed.

Finally, defense counsel played a short excerpt of Cole Prince’s statement during

2 We use direct citations to the record to prevent any confusion regarding the specific evidence at issue.

2 Cite as 2016 Ark. App. 38

counsel’s cross-examination of Mr. Prince at R. 1427. The DVD of the video was not

introduced and is not part of the record. The excerpt is not transcribed in the supplemental

record. The supplemental record, although containing a transcript of Mr. Prince’s entire

statement, gives no indication of what part of the statement was actually played at trial. The

court reporter’s affidavit explains that she was not clear about exactly what portion of the

statement was played during trial. The excerpt that was played at trial should have been

recorded and transcribed.

Each of these errors relates to the failure to transcribe recorded evidence played for

a jury. See Ark. Sup. Ct. Admin. Order No. 4(a) (2015) (requiring a verbatim record of all

proceedings). We therefore remand to the circuit court and direct it to make a determination

of what excerpts were played at trial from appellant’s statement at R. 1216 and from Mr.

Prince’s statement at R. 1427. Further, we direct the circuit court to include in the

supplemental record an official transcription of these excerpts and of the audio recording of

the “jail call” played at R. 1683. We order the circuit court to complete the transcript within

thirty days from entry of this order.

Appellant’s brief will be due thirty days after the supplemental record is lodged.

Remanded for correction of the record.