Opinion
CR 09-410
Opinion Delivered February 25, 2010
Upon Return of Special Master's Findings of Fact, Contempt Citation Issued; Remanded to Settle the Record.
The facts of this matter concern the failure of court reporter Elvetta J. Stacy to timely prepare the record in the above-captioned case and were set forth in our per curiam order of October 22, 2009. See Lauderdale v. State, 2009 Ark. 509, ___ S.W.3d ___ (per curiam). In that order, we found that Ms. Stacy had failed to comply with the writ of certiorari issued, and we ordered her to appear before this court on November 5, 2009, to show cause why she should not be held in contempt for her failure to comply with the writ. Ms. Stacy did appear and entered a plea of not guilty. Accordingly, we appointed the Honorable Rice Van Ausdall as special master to conduct a hearing on the matter, to make findings of fact, and to file them with this court's clerk. See Lauderdale v. State, 2009 Ark. 571, ___ S.W.3d ___ (per curiam).
On January 25, 2010, the special master filed his findings of fact following a hearing held on December 22, 2009. Those findings include:
1. Respondent, Elvetta J. Stacy, was the duly appointed and serving Court Reporter for all the lower court proceedings, in the case styled Kitaka Lauderdale v. State of Arkansas, (Craighead Circuit Court # CR 2005-225).
2. Defendant was convicted in the trial below, and timely gave notice of appeal.
3. Respondent needed additional time to prepare the transcript, and an order was entered, which extended the time for filing the record in this Court, to April 19, 2009.
4. Counsel for the defendant attempted to obtain and file the transcript, but the Respondent did not respond to any requests. Thus, the deadline passed without the transcript being prepared, or filed.
5. Defendant was granted a Writ of Certiorari by this Court, on May 7, 2009, providing that the record be filed herein no later than July 6, 2009.
6. Ms. Stacy was mailed, at her usual mailing address — 302 Evelyn Avenue, Wynne, AR 72396, — the following pleadings and mail, as follows:
A. Copy of Petition for Writ of Certiorari, on April 20, 2009;
B. Copy of Clerk's letter to the attorneys, showing the writ had been granted, on May 7, 2009;
C. Copy of Motion for Extension of Time, on July 2, 2009;
D. Copy of Clerk's letter to the attorneys, denying appeal bond, on September 10, 2009;
E. Copy of Clerk's letter to attorneys granting final extension of time to October 6, 2009, mailed September 11, 2009;
F. Copy of Motion to Extend Time to File Record, on Oct. 5, 2009;
G. Copy of Clerk's letter, showing the Court granted the motion, and issued a Show Cause Order, on October 22, 2009.
7. The file shows that at the show cause hearing on November 5, 2009, the following notation:
"address for Court Reporter Elvetta J. Stacy as given to the Court at Show Cause Hearing:
Elvetta J. Stacy
302 Evelyn Avenue
Wynne, AR 72396"
8. Respondent admits of knowing of the Petition for Writ, both in her oral testimony, and in the letter she testified she wrote, dated May 8, 2009.
9. The letter Respondent testified she wrote and mailed on May 8, 2009, was not received by either defendant's attorney, or the Circuit Court Clerk. The transcript Respondent testified she mailed on May 8, 2009, was not received by the Circuit Court Clerk.
10. The last communication the Circuit Court Clerk had with Respondent, was April 13, 2009, by e-mail.
11. Respondent does not recall how much the postage was to mail the transcript; she did not keep a receipt; she does not remember which post office she used to mail the transcript; she does not recall what time of day it was mailed, and what else she did that day. She obviously feels it was lost in the mail.
12. Respondent denies having received any of the mail addressed to her set forth in 6 above.
13. None of the mail mailed to Respondent was shown to have been returned undelivered.
14. Based upon the total of all the evidence set forth above, it is my conclusion that the Respondent did receive notice of the deadline, and the other mailings set forth in paragraph 6 above. It is the further conclusion that Ms. Stacy did not prepare and/or mail the transcript. Her recital of events, and her conduct, is difficult to believe, thus not credible. However, if the test were beyond a reasonable doubt, it must be stated that it is possible she did not receive the mail, and did mail the transcript. Viewed this way, it would be stated that I am not convinced, beyond a reasonable doubt, that the transcript was not lost in the mail. However, even if accepted, the transcript was beyond the April 19, 2009, deadline.
15. Ms. Stacy has prepared, and brought to the December 22nd hearing, the transcript of the jury trial, and promised to prepare the transcript of the Suppression Hearing. Further, the Respondent's attorney testified that he felt he could cooperate with the state's attorney, and reconstruct a copy of the Exhibits offered.
Based on the foregoing, we hold Ms. Stacy in contempt of this court for willfully failing to prepare the instant record in a timely manner. In holding Ms. Stacy in contempt, we note that she may be punished by incarceration, imposition of a fine, or both. See Ross v. State, 346 Ark. 180, 55 S.W.3d 770 (2001) (per curiam). In light of the fact that Ms. Stacy prepared and brought to the hearing the transcript of the above-captioned jury trial and her promise to prepare the suppression hearing as well, we solely fine Ms. Stacy in the amount of $ 1,081.52, which reflects the special master and court reporter expenses incurred by this court. We further remand this matter to the Craighead County Circuit Court, Western District, to settle the record. Finally, we direct our clerk to forward a copy of this order to the Board of Certified Court Reporters Examiners for any action it may deem necessary.
Contempt citation issued; remanded to settle the record.