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Lee v. State

Supreme Court of Arkansas

November 30, 2017

TERRY ANTONIO LEE APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         PRO SE APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION; MOTION FOR RIGHTEOUS DISPOSITION [NO. 60CR-10-48] HONORABLE BARRY SIMS, JUDGE

          Terry Antonio Lee, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson, Ass't Att'y Gen., for appellee.

          ROBIN F. WYNNE, ASSOCIATE JUSTICE.

         Appellant Terry Antonio Lee appeals the trial court's denial of his pro se petition and amended petition under Arkansas Rule of Criminal Procedure 37.1 (2016). Lee raised a number of claims of ineffective assistance of counsel and independent claims of error in the trial proceedings that he reasserts on appeal, including allegations of double-jeopardy violations. Most notably, Lee alleges that his convictions in the case resulted from charges of the commission of a terroristic act, criminal attempt to commit first-degree battery, and four counts of aggravated assault that were all alleged to have been committed during a continuing course of conduct. Lee contends that only one penalty could be imposed. The trial court denied the petition after conducting hearings on the issues.

         On appeal, Lee contends that the trial court erred in finding that Lee did not demonstrate ineffective assistance of counsel or that the trial proceedings were constitutionally infirm. We hold that, because there were six separate criminal violations resulting from six separate impulses in the firing of six separate shots, no double-jeopardy violation occurred and the trial court was not clearly erroneous in determining that Lee failed to demonstrate fundamental error cognizable in Rule 37 proceedings. Lee also failed to make the requisite showing of prejudice for his cognizable claims of ineffective assistance of counsel, and we therefore affirm the denial of postconviction relief.

         After briefing had been completed, Lee filed a pleading in which he requested this court "grant righteously" concerning the disposition of the matter. As we affirm the appeal, the motion is moot.

         I. Procedural History

         The Arkansas Court of Appeals affirmed Lee's convictions. Lee v. State, 2013 Ark.App. 209. The evidence presented at trial, briefly summarized, included testimony that Lee and an unidentified man were outside Robert and Erica Brown's home on a night in 2009. While there, Lee got into an altercation with Robert and Archie Roberson. As Lee left, he threatened to return with a gun and "kill everyone in the house." About an hour later- when Robert went outside to move vehicles in the driveway-Lee appeared in the center of the street, and he fired eight shots toward Robert and the house.[1] One bullet struck the home's window sill. Erica and three children were inside the house when the shooting began.

         This court granted Lee's motion for belated appeal of the Rule 37.1 proceedings. Lee v. State, 2015 Ark. 26 (per curiam). We later remanded to settle the record and for additional findings of fact, directing the trial court to enter a supplemental order with additional findings of fact on Lee's allegation that counsel failed to make appropriate directed-verdict motions. Lee v. State, 2016 Ark. 293, 498 S.W.3d 283 (per curiam).[2] The remand has been returned, and the matter has now been briefed.

         II. Issues on Appeal

         Lee raises seven points on appeal, alleging that the trial court erred in failing to find ineffective assistance of counsel on six bases and in denying relief on six independent claims of trial error. Lee contends (1) that his convictions were double-jeopardy violations; (2) that the trial court incorrectly determined that he was competent to be tried and should have ordered further evaluation; (3) that the case was illegally transferred from one division to another within the judicial district; (4) that prosecutorial misconduct deprived him of sufficient discovery; (5) that inconsistent and deficient jury verdict forms were used; and (6) that he received insufficient due process depriving him of an impartial trial as a result of an illegal arrest, insufficient evidence, malicious prosecution, and jurors who were women or who disclosed relationships with people involved with the case or were otherwise potentially biased. Lee asserts ineffective assistance resulted from counsel's failure (1) to adequately investigate; (2) to object to the admission of certain evidence; (3) to develop a different trial strategy; (4) to strike certain jurors; (5) to make adequate motions for directed verdict; and (6) to object to the verdict on double-jeopardy grounds. Any issues that Lee raised in the trial court but not in his briefs on appeal are abandoned, and we address on appeal only those arguments that were first presented to the trial court. State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007).

         III. Standard of Review

         This court reviews the trial court's decision on Rule 37.1 petitions for clear error. Russell v. State, 2017 Ark. 174, 518 S.W.3d 674. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757.

         Rule 37 is not available as a direct challenge to the admissibility of evidence or to raise questions of trial error, even questions of constitutional dimension. Swain v. State, 2017 Ark. 117, 515 S.W.3d 580. For this court to address such a question raised by the appellant for the first time in Rule 37 proceedings, the appellant must show a fundamental error sufficient to void the judgment. Id. Lee's independent constitutional claims fall outside of this exception. Where Lee has framed the issues as recognized fundamental error, he has failed to establish such an error on the facts presented, and the claims are therefore not cognizable for the first time in Rule 37 proceedings. Id.

         IV. Double Jeopardy

         Double-jeopardy protection is a fundamental right, and a direct challenge on the basis of a double-jeopardy violation may be raised in Rule 37 proceedings. Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000). Although Lee made a claim that was cognizable on that basis, he nevertheless failed to show a double-jeopardy violation. Lee contends that the three different crimes shared the same elements in that all three required, in the case at hand, that the State prove that Lee shot a gun for the purpose of causing injury. Lee contends that, even though there were multiple shots fired, the criminal episode at the Brown home was a continuing course of conduct for which only one penalty could be imposed.

         A continuing offense is a continuous act or series of acts begun by a single impulse and operated by an unintermittent force. Halpaine v. State, 2011 Ark. 517, 385 S.W.3d 838. The test to determine whether a continuing offense is involved is whether either the individual acts or the course of action that they constitute are prohibited. Id. If it is the individual acts that are prohibited, then each act is punishable separately. Id. If it is the course of action that is prohibited, then there can be only one penalty. Id. Where there is a single impulse, only one charge lies, but if there are separate impulses, separate charges lie even if all are part of a common stream of action. Id.

         Lee could have been tried and convicted under the statute for the commission of a terroristic act for each shot that he fired. McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999). Aggravated assault and first-degree battery are likewise each described in the applicable statutes, Arkansas Code Annotated section 5-13-204(a)(1) (Repl. 2013) (aggravated assault) and Arkansas Code Annotated section 5-13-201(a)(1) (Repl. 2013) (first-degree battery), as the type of offense that arises from individual acts completed, in this case, each time that Lee fired the gun. See Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977) (holding that neither robbery nor battery is defined as a continuing course of conduct). We need not determine whether the elements in the different charges overlapped because Lee was appropriately charged for each of six distinct individual criminal acts.

         V. Trial Court's Failure to Order an Additional ...


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