APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH
DIVISION; MOTION FOR RIGHTEOUS DISPOSITION [NO. 60CR-10-48]
HONORABLE BARRY SIMS, JUDGE
Antonio Lee, pro se appellant.
Rutledge, Att'y Gen., by: Brooke Jackson, Ass't
Att'y Gen., for appellee.
F. WYNNE, ASSOCIATE JUSTICE.
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
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.
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.
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. One bullet struck the home's window
sill. Erica and three children were inside the house when the
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). The remand has
been returned, and the matter has now been briefed.
Issues on Appeal
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).
Standard of Review
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
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.
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.
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.
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
Trial Court's Failure to Order an Additional ...