Lee v. State

Cite as 2017 Ark. 337
SUPREME COURT OF ARKANSAS
No. CR-14-923

TERRY ANTONIO LEE Opinion Delivered November 30, 2017
APPELLANT
PRO SE APPEAL FROM THE
V. PULASKI COUNTY CIRCUIT
COURT, SEVENTH DIVISION;
STATE OF ARKANSAS MOTION FOR RIGHTEOUS
APPELLEE DISPOSITION [NO. 60CR-10-48]

HONORABLE BARRY SIMS, JUDGE

AFFIRMED; MOTION MOOT.

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.

1
Police recovered eight shell casings from the scene.
2
 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

2
After Lee filed a motion indicating that the trial court had failed to provide Lee
with a copy of the supplemental order entered on remand, we entered another order
remanding for compliance with Arkansas Rule of Criminal Procedure 37.3(d) (2016). Lee
v. State, 2016 Ark. 464 (per curiam).
3
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.

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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

5
(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 Mental Evaluation

An allegation in a Rule 37.1 petition that the petitioner was incompetent to be tried

at the time of trial, supported by sufficient factual allegations, would be cognizable in

proceedings under the Rule. An incompetent defendant cannot waive his or her right to

have the court determine his or her capacity to stand trial. Pate v. Robinson, 383 U.S. 375

(1966). Yet, Lee does not contend that he was not actually competent to be tried, and he

did not present evidence of his incompetence.

Lee refused to participate in the first mental evaluation conducted that produced a

report concluding that he was competent to stand trial. Lee points to an argumentative

discussion with the trial court after this initial evaluation concerning his continuing lack of

cooperation. Lee contends the trial court should have determined from this exchange that

his mental state was questionable. At the court’s direction, however, a second mental

evaluation was conducted following Lee’s asserted questionable conduct in court. With

Lee’s cooperation, the new examination resulted in a second report that also concluded that

Lee was competent to stand trial. A diagnosis of antisocial personality disorder was made in

this second report, and Lee contends that the diagnosis should have triggered further

evaluation.

The doctor who examined Lee for the second report stated that, although Lee

exhibited the disorder, Lee had no mental disease or defect, that he had the capacity to

6
understand the proceedings against him, and that he had the capacity to assist effectively in

his own defense. The trial court found Lee competent based on that second report, and

although Lee asserts the court’s finding of competence was in error and that an additional

evaluation should have been conducted, he has failed to identify any evidence establishing

that he was not in fact competent to be tried or that the trial court should have made further

inquiry into Lee’s mental capacity.

The mere fact that Lee suffered from a disorder such as antisocial personality disorder,

without more, did not render him incompetent to stand trial. See Ware v. State, 348 Ark.

181, 75 S.W.3d 165 (2002). Lee had another examination that followed his argumentative

behavior, and he identified no circumstances following that second examination under

which the trial court should have had reason to believe that his fitness to proceed was still

at issue. Hardaway v. State, 321 Ark. 576, 906 S.W.2d 288 (1995). Accordingly, he did not

demonstrate trial error constituting fundamental error.

VI. Inappropriate Transfer

Lee contends that the judge presiding over his trial lacked jurisdiction over the matter

because the venue was transferred without an appropriate order. A circuit judge has the

authority to preside over proceedings in any courtroom, in any county, within the judicial

district for which that judge was elected. Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524

(1994). The challenge Lee would make concerning a transfer within the judicial district is

not one that can be raised in postconviction proceedings. Renfro v. State, 264 Ark. 601, 573

S.W.2d 53 (1978).

7
 VII. Verdict Forms

Lee alleged that two of the verdict forms, those for committing a terroristic act and

for criminal attempt to commit first-degree battery, were defective in failing to name the

victim when the other verdict forms specified a victim. Some defects in verdict forms may

constitute fundamental error. Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). Lee,

however, failed to explain how the allegedly defective verdict forms may have resulted in

prejudice or juror confusion.3 He therefore did not establish that the alleged error was

fundamental error sufficient to void the judgment.

VIII. Juror Selection and the Remaining Direct Constitutional Challenges

Lee’s remaining claims of independent constitutional error are based on alleged due-

process violations that are also not the types of errors that may be considered in Rule 37

proceedings. Lee alleges prosecutorial misconduct involving discovery violations and

malicious prosecution, but this court has held that such direct challenges are not cognizable

in postconviction proceedings under the Rule. Wood v. State, 2015 Ark. 477, 478 S.W.3d

194. A direct challenge to the sufficiency of the evidence is not cognizable in Rule 37

proceedings. Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778. Lee’s claims concerning

an illegal arrest are not fundamental error because an invalid arrest does not entitle a

3
The jury was instructed that the offense of committing a terrorist act occurred if
the State proved that Lee, while not in the commission of a lawful act and with the purpose
of causing injury to another person or other persons or damage to property, shot at an
occupiable structure. That definition does not require a victim to be identified. The
instructions for attempted first-degree battery identified “Robert Brown or another person”
as the potential victim.
8
defendant to be discharged from responsibility for the offense. Biggers v. State, 317 Ark.

414, 878 S.W.2d 717 (1994).

Lee asserts that certain jurors were selected who were not qualified because they were

women, they disclosed relationships with people involved with the case, or made statements

that indicated they were otherwise potentially biased. The trial court appears to have found

that this claim was one not cognizable in the proceedings, only addressing it in a broad

general finding. To the extent that Lee obtained a ruling on this issue, the trial court was

correct.

Denial of a defendant’s right to a twelve-person jury is fundamental error that may

be raised for the first time in Rule 37 proceedings. Collins v. State, 324 Ark. 322, 920

S.W.2d 846 (1996). Prospective jurors who state that they can lay aside prior impressions

or opinions and render a verdict based upon the evidence presented at trial, however, are

qualified to serve as jurors. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); see

also Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984) (noting the distinction between

implied and actual bias of jurors). A prospective juror may be challenged for implied bias

that arises by implication of law. See Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).

As for claims of actual bias, we have repeatedly held that an appellant must do more than

allege prejudice; he or she must actually demonstrate it. Jones v. State, 374 Ark. 475, 288

S.W.3d 633 (2008).

Lee did not raise an implied-bias claim. Jurors are not disqualified by their gender,

and Lee did not identify any bias, even liberally construed, that clearly falls within the

statutorily provided categories. See Owens, 354 Ark. 644, 128 S.W.3d 445. In those specific

9
instances of potential bias that Lee identified in the record on appeal, the prospective juror

indicated that he or she believed the issue would not impair the juror’s ability to serve fairly

and impartially or the court excused that individual from service on the jury. Allegations

of actual bias and the composition of the jury are matters to be raised at trial. See Neal v.

State, 270 Ark. 442, 605 S.W.2d 421 (1980).

IX. Ineffective Assistance

Turning to Lee’s claims that his attorney was ineffective, our standard for ineffective-

assistance-of-counsel claims is the two-prong analysis set forth in Strickland v. Washington,

466 U.S. 668 (1984). Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. The benchmark for

judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied

on as having produced a just result.” Strickland, 466 U.S. at 686. To prevail on a claim of

ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance

was deficient and (2) the deficient performance prejudiced his defense. Mister v. State, 2014

Ark. 446. Unless a petitioner makes both showings, the allegations do not meet the

benchmark on review for granting relief on a claim of ineffective assistance. Houghton v.

State, 2015 Ark. 252, 464 S.W.3d 922.

Counsel is presumed effective, and allegations without factual substantiation are

insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d

55. To satisfy the first prong of the Strickland test, the petitioner must show that counsel’s

performance was deficient by a showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to

10
the United States Constitution. Van Winkle, 2016 Ark. 98, at 6–7, 486 S.W.3d at 784. A

petitioner has the burden of overcoming the presumption that counsel is effective by

identifying specific acts and omissions that, when viewed from counsel’s perspective at the

time of trial, could not have been the result of reasonable professional judgment. Henington,

2012 Ark. 181, 403 S.W.3d 55.

To satisfy the second prong of the test, a claimant must show that there is a reasonable

probability that the fact-finder’s decision would have been different absent counsel’s errors.

Van Winkle, 2016 Ark. 98, at 7, 486 S.W.3d at 785. A reasonable probability is a probability

sufficient to undermine confidence in the outcome of the trial. Id. The language, “the

outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible

prejudice in the sentencing. Id. An appellant must do more than allege prejudice; he or

she must demonstrate it with facts. Carter v. State, 2015 Ark. 166, 460 S.W.3d 781.

X. Failure to Preserve Directed-Verdict Argument for Appeal

Lee asserts that trial counsel was ineffective for failing to make an appropriate motion

for directed verdict that would preserve that argument for appeal. In its opinion on direct

appeal, the court of appeals held that trial counsel’s motion did not adequately preserve the

issue because it recited only the elements of each charged crime without identifying specific

elements that the State failed to prove. Lee, 2013 Ark. App. 209, at 3–4. The trial court

found that counsel’s performance in this regard was deficient, but that Lee failed to

demonstrate prejudice from the deficient performance.

Lee must indeed satisfy the second prong of the Strickland test in order to merit relief.

When a petitioner asserts that counsel was ineffective for failure to make a motion or

11
argument, the petitioner must show that the motion or argument would have been

meritorious. Mitchell v. State, 2012 Ark. 242. This is because the failure to make an

argument that is meritless is not ineffective assistance of counsel. Id.

Lee first contends that trial counsel should have argued that the State had failed to

show that it was Lee who committed the crime. Lee’s argument is meritless because three

witnesses identified him as the shooter. This court has repeatedly held that “unequivocal

testimony identifying the appellant as the culprit is sufficient to sustain a conviction.” Ewell

v. State, 375 Ark. 137, 289 S.W.3d 101 (2008) (citing Stipes v. State, 315 Ark. 719, 870

S.W.2d 388 (1994)). Challenges to the reliability of an identification such as Lee raises here

are not sufficient to disturb the fact-finder’s decision concerning the credibility of the

witness or witnesses on appeal. See Starling v. State, 2016 Ark. 20, 480 S.W.3d 158

(declining to find that evidence at trial was insufficient when the defendant had argued a

lack of credibility of witnesses due to prior inconsistent statements and motives to lie).

Variances and discrepancies in the proof go to the weight or credibility of the evidence and

are matters for the fact-finder to resolve. Id.

Lee also argues that the shots were aimed at Robert and there was no evidence that

the shots were intentionally fired at the house or with the purpose of hitting Erica and the

children. He asserts that the State therefore failed to show the necessary intent to support

either the aggravated-assault counts or commission of a terroristic act. A person’s state of

mind at the time of a crime is seldom apparent and ordinarily cannot be proven by direct

evidence. Noble v. State, 2017 Ark. 142, 516 S.W.3d 727. For this reason, members of the

jury are allowed to draw upon their common knowledge and experience to infer intent

12
from the circumstances. Id. Because of the difficulty in ascertaining a person’s intent, a

presumption exists that a person intends the natural and probable consequences of his or her

acts. Id.

Lee apparently misconstrues the criminal intent required by the two statutes.

Arkansas Code Annotated section 5-13-310(a) (Repl. 2013), in relevant part, provides that

“[a] person commits a terroristic act if, while not in the commission of a lawful act, the

person . . . [s]hoots at an occupiable structure with the purpose to cause injury to a person

or damage to property.” There is no requirement in the statute that Lee had to aim with

an intention to hit the house rather than Robert. Lee shot at an occupiable structure when

he intentionally fired toward the Browns’ home. It was necessary that he do so in order to

aim at Robert, who was in front of the house. Common sense would permit the jury to

infer that Lee intended to injure Robert in doing so and that he also intended the natural

and probable consequence that bullets not striking the intended target would hit the house.

Indeed, there was testimony that at least one did.

Arkansas Code Annotated section 5-13-204(a) defines aggravated assault, as used in

this case, to occur when “under circumstances manifesting extreme indifference to the value

of human life,” the perpetrator “engages in conduct that creates a substantial danger of death

or serious physical injury to another person.” The purpose the jury was required to find

was a purpose to engage in the conduct that created the risk of injury, accompanied by an

exhibition of extreme indifference to the value of human life. Despite Lee’s assertion to the

contrary, it was not necessary for the State to demonstrate that he aimed the gun at the

individual occupants of the house or intended to shoot them. Firing the gun in the direction

13
of Robert and the Browns’ home placed Robert’s and the occupants’ lives in danger and

demonstrated the requisite indifference. Lee therefore failed to show that the motion for

directed verdict, even if properly preserved for appeal with the specific arguments Lee would

have had counsel make, would have been meritorious.

XI. Failure to Investigate

Lee asserts error in the trial court’s failure to find that counsel was ineffective for

failure to investigate and adequately prepare for trial. Counsel has a duty to conduct a

reasonable investigation or to make a reasonable decision that a particular investigation is

unnecessary. Young v. State, 2015 Ark. 65, at 6. A petitioner under Rule 37.1 who alleges

ineffective assistance of counsel for failure to perform an adequate investigation must

delineate the actual prejudice that arose from the failure to investigate, and he or she must

demonstrate a reasonable probability that the specific materials that would have been

uncovered with further investigation could have changed the outcome of trial. Id. That is,

a petitioner who asserts ineffective assistance for failure to investigate must show that further

investigation would have been fruitful and that the specific materials the petitioner identifies

that counsel could have uncovered would have been sufficiently significant to raise a

reasonable probability of a different outcome at trial. Id. at 6–7. General assertions that

counsel did not aggressively prepare for trial are not sufficient to establish a claim of

ineffective assistance of counsel. Id. at 7.

Lee identified reports prepared by one of the detectives investigating the incident

that Lee believed were significant because the detective noted that a CD that had been

admitted into evidence was blank and because the detective referenced earlier statements by

14
Erica that Lee believed were inconsistent with her testimony. Lee made no showing that

these materials were sufficiently significant to raise a reasonable probability of a different

outcome at trial, however.

There was testimony at trial about the blank CD, that it was thought to contain

pictures taken at the crime scene and that there was no backup made. The officer who took

the missing pictures testified about why he took the pictures, including the fact that one

specific photograph was to show that there was a bullet hole in a window sill that the officer

had noticed. Counsel questioned the detective about inconsistencies in Erica’s testimony

and in her prior statements, and assuming for the purpose of this analysis that counsel had

not been aware of the report, Lee does not point out any additional information that might

have been more effective in discrediting her testimony, despite Lee’s conclusory allegations

that the reports could have been used for impeachment. Neither conclusory statements nor

allegations without factual substantiation are sufficient to overcome the presumption of

competence and cannot provide a basis for postconviction relief. Id.

XII. Trial Strategy

In conjunction with his claims that trial counsel failed to adequately investigate or

consult with him, Lee alleged that counsel failed to develop a successful trial strategy. Lee

is not clear on the alternate strategy that he would have had counsel adopt, but he failed to

demonstrate that the strategy counsel adopted—which was to discredit the identifications of

Lee, particularly the identification made by Erica, by pointing to inconsistencies and

suggesting that his companion in the initial encounter may have been the shooter—was not

reasonable.

15
 Counsel is allowed great leeway in making strategic and tactical decisions. Williams

v. State, 2016 Ark. 459, 504 S.W.3d 603. Where a decision by counsel was a matter of trial

tactics or strategy, and that decision is supported by reasonable professional judgment, then

counsel’s decision is not a basis for relief under Rule 37.1. Adams v. State, 2013 Ark. 174,

427 S.W.3d 63. As the trial court found, Lee’s attorney testified about the investigation that

he conducted and his reasoning in developing a defense strategy. Lee failed to demonstrate

both that further discussion or investigation may have produced information to develop an

alternate strategy or that counsel’s decision to adopt the trial strategy used was unreasonable.

Trial counsel’s decisions regarding what theory of the case to pursue represent the epitome

of trial strategy. Sartin v. State, 2012 Ark. 155, at 4, 400 S.W.3d 694, 697. When counsel’s

decision is supported by reasonable professional judgment, then postconviction relief under

Rule 37 is not available even when the chosen strategy was improvident in retrospect. Id.

XIII. Juror Selection

Lee’s claims that counsel was ineffective in juror-selection choices were also a matter

of trial strategy, and this court will not label counsel ineffective merely because of possible

bad tactics or strategy in selecting a jury. Howard v. State, 367 Ark. 18, 238 S.W.3d 24

(2006). To prevail on an allegation of ineffective assistance of counsel with regard to the

seating of the jury, a petitioner first has the heavy burden of overcoming the presumption

that jurors are unbiased. Id. To accomplish this, a petitioner must demonstrate actual bias

sufficient to prejudice the petitioner to the degree that he or she was denied a fair trial. Id.

As discussed above, none of Lee’s claims of juror bias were supported with a showing of

such actual bias.

16
 XIV. Failure to Object

Lee’s remaining claims concern counsel’s failure to make objections to the admission

of certain evidence and to the verdict based on a double-jeopardy violation. Failure to

make a meritless objection is not an instance of ineffective assistance of counsel. Turner,

2016 Ark. 96, 486 S.W.3d 757. As previously discussed, the basis that Lee alleged would

have supported an objection to the verdict on a double-jeopardy violation is without merit.

Lee’s claims that counsel failed to object to the admission of evidence were largely

too vague to identify any specific omissions by counsel. To prevail on a claim of ineffective

assistance for the failure to object, the petitioner has the burden to identify the specific

evidence to which counsel should have objected and provide meritorious grounds for an

objection. See Henington, 2012 Ark. 181, at 6, 403 S.W.3d at 60 (“Conclusory allegations

that are unsupported by facts do not provide a basis for either an evidentiary hearing or

postconviction relief.”).

Lee appeared to assert that counsel should have objected to portions of Erica’s

testimony. This testimony concerned her ability to see what was happening when the

shooting occurred and noticing after the shooting that a bullet had hit the window sill. Lee

contends that this testimony on Erica’s direct observations was hearsay, without pointing to

specific statements made. “Hearsay” is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Ark. R. Evid. 801(c) (2016); Swain v. State, 2015 Ark. 132, 459 S.W.3d 283. Lee’s

claim failed because he did not identify specific statements made to which counsel could

have made a successful objection on the basis of hearsay. Hartman v. State, 2017 Ark. 7, 508

17
S.W.3d 28 (holding that the appellant failed to demonstrate that an objection on the basis

of hearsay would have been successful because he failed to identify which of certain hearsay

statements made by the witness would have been inadmissible).

Lee also contended that counsel should have objected to the shell casings collected

at the crime scene and photos of the house that were introduced. He contends that the

photos were not contemporaneous to the time of the crime and failed to accurately show

the bullet hole in the window sill that was mentioned in Erica’s and other witnesses’

testimony or depict how the scene appeared at night. Lee also contends that the shell casings

should not have been admitted because there was no “crime scene” showing where the

casings were collected. Yet there was testimony about the collection of the shells following

the shooting and that the photos, although not contemporaneous, accurately depicted the

scene at the time.

Relevant information is evidence having “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Ark. R. Evid. 401 (2016); Shreck v. State, 2017

Ark. 39, 510 S.W.3d 750. Unless evidence that is relevant is otherwise excluded under

applicable rules and statutes, it is admissible. Ark. R. Evid. 401; Holly v. State, 2017 Ark.

201, at 9, 520 S.W.3d 677, 683.

This court has held that photographs helpful to explain testimony are ordinarily

admissible. Green v. State, 2015 Ark. 359, at 2, 471 S.W.3d 200, 202. Photographs may be

admissible if they assist the trier of fact in any of the following ways: (1) by shedding light

on some issue; (2) by proving a necessary element of the case; (3) by enabling a witness to

18
testify more effectively; (4) by corroborating testimony; or (5) by enabling jurors to better

understand the testimony. Evans v. State, 2015 Ark. 240, at 4, 464 S.W.3d 916, 918–19.

The shells were also relevant because that evidence served to corroborate the officer’s

testimony and aided the jury in understanding the testimony. The bases that Lee proposes

for objections to the admission of the shells and the photographs are the types of issues that

go to the weight of the evidence and the credibility of the witnesses rather than presenting

a question of law for the court. See Isbell v. State, 326 Ark. 17, 23, 931 S.W.2d 74, 78

(1996) (citing Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995)); see also Laswell v. State,

2012 Ark. 201, at 15, 404 S.W.3d 818, 827 (holding that minor uncertainties in the proof

of chain of custody are matters to be argued by counsel and weighed by the jury, but they

do not render the evidence inadmissible as a matter of law). Lee failed to offer a meritorious

basis for an objection to any of the evidence at issue.

Lee did not demonstrate error in the trial court’s denial of postconviction relief.

Accordingly, we affirm.

Affirmed; motion moot.

Terry Antonio Lee, pro se appellant.

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

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