text:
    Carlos Anthony McFERRIN v. STATE of Arkansas
    CR 00-922
    42 S.W.3d 529
    Supreme Court of Arkansas
    Opinion delivered May 10, 2001

      John W. Cone, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, Carlos Anthony McFerrin, was found guilty by a jury of felony-capital murder in connection with the aggravated robbery and death of Robert Branscum, the owner of Quality Liquor Store in Blytheville, Arkansas. As a habitual offender with two prior felony convictions, McFerrin was sentenced to life imprisonment in the Arkansas Department of Correction. Following his conviction, appellant filed the instant appeal. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(a)(2) (2000).

McFerrin raises four points in support of reversal. First, appellant contends that the trial court erred by denying his directed-verdict motion because substantial evidence did not support his conviction. Second, he argues that the trial court erred by denying his motion to suppress evidence of $1,217.00 in cash seized from under a mattress during a warrandess search of his sister’s home. Third, he claims that the trial court abused its discretion by admitting evidence of $1,400.00 in cash retrieved from under the backseat floorboard of Roy Green’s car, where McFerrin was sitting before he was arrested. Fourth, appellant insists that the trial court erred by admitting the testimony of Greg Hayward, McFerrin’s former Blytheville-jail cellmate. We find no merit in appellant’s arguments, and we affirm his judgment of conviction.

I. Sufficiency of evidence

At the close of the State’s case-in-chief and at the close of evidence, McFerrin moved for a directed verdict. The trial court denied the motions. On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Freeman v. State, 331 Ark. 130, 131, 959 S.W.2d 400, 401 (1998) (citing Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997)). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is any substantial evidence to support it, when viewed in the fight most favorable to the State. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401.

Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or circumstantial. Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other “reasonable” conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

Here, McFerrin contends that the State failed to introduce any direct evidence that he was involved in Branscum’s aggravated robbery and murder. He reasons that the State’s evidence fails to place him at the crime scene and, at best, supports a theory of theft by receiving and hindering apprehension. Further, McFerrin argues that the jury had to resort to speculation to conclude that he participated in the murder because the circumstantial evidence introduced at trial was insufficient to sustain his conviction. In other words, appellant maintains that another reasonable theory explained the evidence.

First, we must note that McFerrin fails to offer any authority in support of his position. We have long held that we do not consider arguments on appeal where it is not apparent without further research that the argument is well-taken. Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997). In any event, contrary to appellant’s assertions, the State presented ample evidence for the jury to find McFerrin guilty of felony-capital murder.

Specifically, the State offered evidence that following the robbery of Branscum’s store on September 4, 1999, almost $10,000 in cash and checks were missing. A nearby business owner heard gunshots at approximately 1:00 a.m. Between 1:00 a.m. and 2:00 a.m., McFerrin and Andrew Ross went to the home of Rosetta Ross, Andrew’s aunt, where Andrew asked if she would take him to a hospital in exchange for $100.00. Andrew needed immediate medical attention for a gunshot wound to the groin that he received when he “got caught in the crossfire.” According to Rosetta Ross, McFerrin acted “real nervous” and “scared.”

At the hospital in Osceola, emergency-room attendants discovered that Andrew Ross had a ski mask in his pants leg. When Rosetta questioned McFerrin about the mask, he responded that Andrew “should have checked himself.” McFerrin returned to his sister’s home at approximately 3:00 a.m. Police discovered Branscum’s body outside his store at about 6:00 a.m. on September 4, 1999. At approximately the same time, McFerrin went to Roy Green’s house. According to Green’s testimony, McFerrin told him that he and Andrew Ross had “hit a lick.” Further questioning indicated that “hit a lick” meant that appellant had received money that was unexpected. Green explained that the phrase could mean that “you win at a card game or shooting dice or robbery.”

After leaving Green’s house, McFerrin, Green, and two others left in Green’s car, and McFerrin purchased beer for everyone. When the group arrived at appellant’s residence, his sister’s home, the house was surrounded by police. McFerrin told Green to “keep going.” However, the police stopped the car and arrested McFerrin. During a search of Green’s car, police discovered $1,400.00 in cash on the floorboard where appellant was sitting. The search of appellant’s sister’s house revealed an additional $1,217.00 in cash hidden under a mattress. Significantly, the serial numbers on the bills from the money seized at the house coincided sequentially with the serial numbers for some of the bills found in the floorboard. Notably, McFerrin admitted that he was unemployed and had only recently been released from prison.

Appellant also made a statement to the police concerning certain items of physical evidence, including the location of two guns later linked to the crime. One gun was a .357 caliber handgun containing five expended shell casings that matched the bullets retrieved from Branscum’s body. The other gun was determined to be a pistol that Branscum carried to work with him. Tests conducted by the State Crime Laboratory confirmed that Branscum’s blood was on both guns.

In response to the State’s theory of the case, appellant suggests that the circumstantial evidence of the cash coupled with Green’s statement that McFerrin had “hit a lick,” or got money that he did not expect, was equally likely to mean that he won at a card game or shooting dice rather than that he committed a robbery. However, appellant’s argument is unpersuasive. We have long held that the trier of fact is free to believe all or part of a witness’s testimony. Freeman, 331 Ark. at 134, 959 S.W.2d at 402 (citing Mosley v. State, 323 Ark. at 250, 914 S.W.2d at 734)). The credibility of witnesses is an issue for the jury and not for this court. Marta v. State, 336 Ark. 67, 74, 983 S.W.2d 924, 928 (citing Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998)). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Moreover, we have held that a defendant’s improbable explanation of suspicious circumstances may be admissible as proof of guilt. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Bennett v. State, 297 Ark. 115, 754 S.W.2d 799 (1988).

In sum, we cannot say that appellant’s explanation for the evidence provided the jury with a reasonable theory to explain its existence. The evidence presented by the State was sufficient to exclude appellant’s theory that he was an innocent bystander who merely accepted cash from Andrew Ross and knew the location of two guns linked to the robbery and murder without having participated in the crime. Here, the jury need not have resorted to speculation or conjecture to find that appellant participated in the crime. Therefore, viewed in the light most favorable to the State, we hold that substantial evidence supports appellant’s conviction for felony-capital murder.

II. Motion to suppress

Prior to his trial, appellant objected to the introduction of $1,217.00 in cash discovered under a mattress during a parole search of his sister’s home. On appeal, McFerrin argues that the trial court erred by denying his motion to suppress the evidence because the search of his sister’s home was invalid. In particular, appellant submits that the searching officers failed to request and receive consent prior to conducting the search and that the search did not comply with the release conditions he signed upon his parole from prison. The State contends that the trial court properly admitted the evidence or, alternatively, that the denial of the suppression motion was harmless. We agree.

As an initial matter, we note that appellant raises an additional objection on appeal, namely that the search was conducted without reasonable grounds. However, we will not address arguments raised for the first time on appeal when appellant failed to advance the issue to the trial court as part of a motion to suppress. See, e.g., Stephens v. State, 342 Ark. 151, 156, 28 S.W.3d 260, 262 (2000), cert, denied, 121 S. Ct. 1206. Accordingly, we limit our analysis to the issue appellant raised below, that the search was invalid in the absence of consent.

When an appellate court reviews a trial court’s ruling on a motion to suppress, it makes an independent determination based upon the totality of the circumstances, views the evidence in the light most favorable to the State, and reverses only if the ruling is against the preponderance of the evidence. Tabor v. State, 333 Ark. 429, 433, 971 S.W.2d 227, 230 (1998). Here, we hold that trial court’s ruling that the cash was discovered pursuant to a proper parole search was supported by a preponderance of the evidence.

As a general rule, “[a] warrantless entry into a private home is presumptively unreasonable.” Norris v. State, 338 Ark. 397, 400, 993 S.W.2d 918, 920-21 (1999) (citing Welsh v. Wisconsin, 466 U.S. 740 (1984); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992)). The burden is on the State to prove that the warrantless activity was reasonable. Id.; Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). The presumption may be overcome if the law-enforcement officer obtained consent to conduct a warrantless search. Ark. R. Crim. P. 11.1 (2000); see also Hillard v. State, 321 Ark. 39, 44, 900 S.W.2d 167, 169-70 (1995). For instance, we have held that a parolee’s advance consent is valid because the parolee remains in the custody of the penal institution from which he is released, and the “special needs of the parole process call for intensive supervision of the parolee making the warrant requirement impractical.” Cherry v. State, 302 Ark. 462, 467, 791 S.W.2d 354, 357 (1990).

In the instant case, Rebecca Somerall, appellant’s parole officer, initiated a parole search of McFerrin’s sister’s home after receiving a report that McFerrin was considered a suspect in Branscum’s murder. When Somerall arrived at the unoccupied house, she requested assistance from the Housing Authority to enter the residence. Once inside, police discovered $1,217.00 in cash, a .22 caliber handgun, and ammunition. Although the cash was admitted into evidence, the trial court excluded the handgun and ammunition.

At trial, Somerall admitted that she did not have a warrant but testified that she conducted the search pursuant to appellant’s signed parole-release form containing the following condition:

10. Search and Seizure. You must submit your person, place of residence, and motor vehicles to search and seizure at any time, day or night, with or without a search warrant, whenever requested to do so by any Department of Community Punishment officer.

(Emphasis added.) Somerall also explained that she received prior consent to search from McFerrin’s sister, Elizabeth Gray. Prior to appellant’s release, Somerall informed Gray that if she permitted McFerrin to five in her home, it would be subject to search “24 hours a day, seven days a week without a warrant.” According to Somerall, Gray agreed to that condition.

Appellant maintains that the prior consent was invalid because he was not present at the search and “requested” to comply with the search per his parole condition. However, as the State points out, appellant’s verbal consent at the time of the search was unnecessary. Any refusal on McFerrin’s part would have been futile because the clause authorizing the warrandess search also explained that he “must submit” to the search. Given appellant’s and his sister’s prior consent, we cannot say that the warrantless search was not a proper parole search. Accordingly, we conclude that the trial court’s decision to deny appellant’s motion to suppress was supported by a preponderance of the evidence.

III. Motion in limine

Even if the warrantless search was valid, McFerrin claims that the trial court erred by denying his motion in limine and admitting evidence of the cash found in his sister’s residence and retrieved from under the back-seat floorboard of Roy Green’s car. Specifically, appellant asserts that the evidence lacked relevance to the facts and issues raised in the case. Evidence is relevant, and generally admissible, if it has any tendency to make the existence of any fact that is of consequence to the trial’s outcome more or less probable than it would be without the evidence. Ark. R. Evid. 401 (2000). Significantly, the decision to admit evidence is within the trial court’s discretion. Therefore, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of that discretion nor will we reverse absent a showing of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 117 S. Ct. 246 (1996).

Again, we note that appellant has failed to offer any authority in support of his argument, and we may decline to reach the merits of this point as it is not apparent without further research that the argument is well-taken. Matthews, 327 Ark. 70, 938 S.W.2d 545. Nevertheless, our case law does not support appellant’s contention. In an illustrative case, we held that where an accused is found near the time of a robbery in possession of an amount of money similar to that taken in the robbery, the money is relevant evidence that the accused committed the crime. See Logan v. State, 264 Ark. 920, 924, 576 S.W.2d 203, 205-06 (1979).

Given McFerrin’s possession of approximately $2,600.00 within hours of Branscum’s robbery and his lack of gainful employment, we cannot say that the cash seized did not tend to make appellant’s guilt more probable that it would be without its admission. Consequently, we hold that the trial court did not abuse its discretion by finding that the cash evidence was relevant and admissible.

IV Statement of Greg Hayward

For his final point on appeal, McFerrin challenges the trial court’s decision to admit the testimony of Greg Hayward, appellant’s former cellmate. The State planned to question Hayward about statements McFerrin allegedly made to him about Branscum’s robbery and murder. However, during examination, Hayward insisted that McFerrin told him nothing. In response to the witness’s denial, the State offered him an unidentified document to refresh his memory. Hayward claimed that whatever was in the document was a lie and that he had never discussed the robbery or murder with appellant.

Appellant objected to Hayward’s testimony on the ground that the document constituted improper impeachment because the witness denied the truth of its contents. However, the State never asked Hayward about the document’s contents nor sought to introduce the document into evidence. As a result, the trial court overruled appellant’s objections to Hayward’s testimony.

On appeal, McFerrin contends that the State improperly introduced Hayward’s testimony for the sole purpose of introducing inadmissible hearsay under the guise of impeachment. See Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983). In Roberts, an eyewitness gave an unsworn statement to police implicating the defendant in a murder. Subsequently, the witness gave two additional statements denying the truth of the prior statement. At trial, the State called the witness and impeached him with his initial statement implicating the defendant. We held that such impeachment was “a mere subterfuge” for the State’s true intention of introducing the hearsay statement as substantive evidence of the defendant’s guilt. Id., 278 Ark. at 552, 648 S.W.2d at 46.

Importantly, in a later case discussing Roberts, we held that Roberts was not controlling where there was no evidence that the State knew that its witness would contradict her earlier statements to police. See Roseby v. State, 329 Ark. 554, 565, 953 S.W.2d 32, 38 (1997). The same reasoning applies in the instant case. Appellant proffered no evidence that the State knew Hayward would contradict his prior statement implicating McFerrin in the robbery and murder.

Appellant also fails to show any prejudice from the trial court’s decision to admit Hayward’s testimony. We will not reverse the trial court absent an abuse of its discretion nor will we reverse absent a showing of prejudice. Misskelley, 323 Ark. 449, 915 S.W.2d 702. First, the State never questioned Hayward about the challenged document’s contents nor sought its introduction. Given that the jury was never made aware of the document’s contents, we cannot say that appellant suffered prejudice.

Second, Hayward’s testimony may have been favorable to appellant because he denied that McFerrin ever discussed the crime with him. Although Hayward acknowledged remembering the substance of the document offered him by the State, he declined to read it and claimed that it was a lie. He also raised allegations of police misconduct in obtaining appellant’s conviction. He admitted to being pepper-sprayed at the jail and suggested that police officers wanted his help in convicting McFerrin. In light of the foregoing, we affirm the trial court’s decision to admit Hayward’s testimony.

V. Rule 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h) (2000), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. Accordingly, we affirm the trial court and appellant’s judgment of conviction.


source: Caselaw Access Project

author: TOM Glaze, Justice.

license: Public Domain

text:
    Beau JONES v. STATE of Arkansas
    CR 00-977
    42 S.W.3d 536
    Supreme Court of Arkansas
    Opinion delivered May 10, 2001

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   TOM Glaze, Justice.

Beau Jones appeals from his conviction for capital murder and his life sentence, and argues solely that the trial court erred in denying his motion to suppress his two confessions. We find no error, and therefore affirm.

Jones does not challenge the sufficiency of the evidence, so we need only provide a short summary of the facts relevant to addressing Jones’s suppression issue. Sometime on December 4, 1998, Melissa Ma disappeared. Her roommate, Amanda Stacks, notified the police on December 5 that Melissa had borrowed her car on the morning of December 4, but had not returned to their apartment. Melissa and Amanda had roomed together since Melissa broke up with her boyfriend, Beau Jones, a few weeks earlier. Melissa’s family notified the police on December 7 that she was missing. During the course of their investigation, the Little Rock police questioned Beau Jones several times, with the first time occurring on December 9, 1998. At that time, Jones was not considered a suspect in Melissa’s disappearance, and he denied any involvement in the matter. The police spoke with Jones again on December 13. That day, Jones was taken to the Little Rock police department, read his Miranda rights, and questioned; after that, the police released him.

On December 14, 1998, the police again picked Jones up and took him to the police station. This time, they handcuffed him and put him in the back of a squad car. Detective Ronnie Smith took Jones into an interview room at the police station and advised him of his Miranda rights. Jones indicated that he understood each of the rights read to him, and gave a statement consistent with his prior ones denying any knowledge of Melissa’s disappearance.

On December 15, Melissa’s body was found near Ferndale in western Pulaski County; she had been shot twice in the head. Jones was subsequendy arrested and once more taken to the Litde Rock police department. Detective Smith again read him his Miranda warnings, and Jones signed a waiver of his rights. Shortly thereafter, on the same day, Detective Smith began taping Jones’s statement. Jones at first continued to deny any involvement in Melissa’s disappearance, but after the detective told him the police had found her body and started to describe what she was wearing, Jones became emotional and asked to see a photo of Melissa. Fie then confessed to having killed her.

After Jones gave his first confession, Officer David Bratton transported Jones by car from the police department to the Pulaski County Jail. During that drive, Jones started to cry and exclaimed, “Man, I did not mean for the gun to go off.” Bratton, who had not asked Jones any kind of question prior to that statement, replied, “Are you telling me that you did it?” Jones responded, “Yeah, I killed her. Man, you don’t understand. I deal a lot of drugs, and she was going to turn me in. I couldn’t let her do that, because I didn’t want to go to jail. So, I put a gun on her trying to scare her, and it went off. Man, I killed her. I still can’t believe I did it, but I killed her.”

Prior to trial, Jones moved to suppress his two confessions, but the trial court denied the motion. The case proceeded to trial on January 18, 2000, and the jury convicted him of capital murder. As noted above, Jones argues on appeal only that the trial court erred in denying his motion to suppress the two statements he gave to the police on December 15.

When reviewing a trial court’s decision on a motion to suppress, this court views the evidence in the light most favorable to the State and makes an independent determination based upon the totality of the circumstances. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). This court will only reverse a trial court’s ruhng on a motion to suppress if the ruling was clearly erroneous. Id.

A statement made while an accused is in custody is presumptively involuntary, and the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000). In making this determination, we review the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). In determining whether a confession was voluntary, we consider the following factors: age, education, and intelligence of the accused, lack of advice to his constitutional rights, length of detention, the repeated and prolonged nature of the questioning, or the use of physical punishment. Humphrey, 327 Ark. at 760; see also Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998).

Further, the credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings. Id. So long as there is no evidence of coercion, a statement made voluntarily may be admissible against an accused. Id.

In the instant case, Jones contends that the two confessions he gave to the police on December 15 were taken in violation of his Fifth Amendment rights because he had asked to speak to a lawyer on December 14, but that his request was ignored, and that one of the detectives who interviewed him on that day threatened him. In support of these contentions, Jones points to his testimony at the suppression hearing, wherein he testified that when the detectives started asking him questions, he told them that he did not know what they were talking about, and that he wanted a lawyer. He said that when he asked for a lawyer, the officers did not respond. At the conclusion of his interview with the police on that day, Jones claimed Detective Ted Atkins threatened him by saying he knew a lot of people in the penitentiary, implying that he could cause trouble for Jones if he discovered Jones was lying.

Detective Atkins denied making any such threat, and further testified that Jones did not, at any time, request an attorney or ask that the interview be stopped. Other officers, including Detectives Ronnie Smith, J.C. White, and Linda Keel, also testified at the suppression hearing that Jones did not request an attorney on December 14. As noted above, the trial court is not required to believe the testimony of any witness, especially the self-interested testimony of the defendant. Wright, 335 Ark. at 404. The trial court clearly believed the testimony of the officers, not Jones, and this court defers to the superior position of the trial judge in matters of credibility. Id.; see also Steggall, 340 Ark. at 195-96 (where the only evidence that appellant asked for an attorney was his own testimony, the issue turned on credibility, and it was in the province of the finder of fact to determine the credibility of a witness).

Jones also contends that his taped confession, given at the police department on December 15, was not freely given because he was under the influence of drugs at the time of his arrest. He also asserts that the statement was the result of a repeated and lengthy interrogation by the police, designed to “break him down,” and that Iris mental state, affected by drug and alcohol consumption, was such that his waiver of his rights was involuntary. He points to statements during his confession that his head was pounding and his heart was “about to explode.” During the suppression hearing, Jones testified that he had consumed hallucinogenic mushrooms the day of his confession and that they began to “kick in” while he was giving his statement.

When an appellant claims that his confession was rendered involuntary because of his drug or alcohol consumption, the level of his comprehension is a factual matter to be resolved by the trial court. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995) (citing Anderson v. State, 311 Ark. 332, 842 S.W.2d 855 (1992)). While this court will make a closer examination of the appellant’s mental state, we still leave the factual question to the trial court on whether the accused had sufficient capacity to waive his rights. See McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). The test of voluntariness of one who claims intoxication at the time of waiving his rights and making a statement, is whether the individual was of sufficient mental capacity to know what he was saying — capable of realizing the meaning of his statement — and that he was not suffering from any hallucinations or delusions. Id. We have also stated that it is significant in making a finding of voluntariness that the accused answered questions without indications of physical or mental disabilities, that the accused remembered a number of other details about the interrogation even though he could not remember waiving his rights, and that a statement was given in a short period of time after his rights had been read to him. Id. at 280-81.

Here, although Jones claims to have been under the influence of drugs at the time he gave his statement, at least six police officers, who were present when Jones gave his statements, testified at the suppression hearing that he did not appear to be intoxicated or “high” during the interview. This again was a question of credibility for the trial court to resolve. In addition, the trial judge listened to the tape of the interview, and so was able to hear for himself whether or not Jones sounded as though he were under the influence of drugs or alcohol. Further, looking to the factors enumerated in McDougald, Jones was able to remember a number of details about the interrogation and other surrounding events. For example, he testified in detail during the suppression hearing about what he and his friends had been doing the morning of the 15th. He also recalled that when he arrived at the police station, one of the officers accompanying him pulled his shirt over his head to shield Jones from the television cameras that were there. As in McDougald, Jones’s ability to remember details about the interrogation, even though he was allegedly “confused” about waiving his rights, points to the correctness of the trial court’s finding that the statements were freely given.

Next, Jones asserts that he asked Detective Eric Knowles to turn off the tape recorder while Jones was giving his initial statement on December 15; this request, he now argues, was an invocation of his right to remain silent. Detective Knowles testified that he did not interpret this question as meaning that Jones wanted to terminate the interrogation, saying that Jones never asked to discontinue the interview. In Standridge v. State, 329 Ark. 473, 951 S.W.2d 299 (1997), defendant Standridge told the police that he was not ready to talk, but then, almost immediately thereafter, he offered a confession. On appeal, Standridge argued that his statement to the police that he was not ready to talk effectively invoked his right to remain silent pursuant to Miranda. Noting that while an individual may cease all questions by indicating that he wishes to remain silent, this court wrote that “the right to remain silent must be made unequivocally, and answering questions following a statement that attempts to invoke the right to remain silent may waive that right by implication.” Id. at 479 (citing Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995)). Here, Jones made no such unequivocal invocation of his right to remain silent. Instead, he only asked the detectives to turn off the tape recorder. He never indicated that he did not wish to talk, only that he did not wish what he said to be recorded. The trial court’s ruling on this point was not erroneous.

Finally, Jones argues that the second confession he gave in the police car, when being driven by Officer Bratton to the Pulaski County Jail, should have been suppressed because it was given without proper Miranda warnings. Jones, citing Rhode Island v. Innis, 446 U.S. 291 (1980), contends that when Bratton asked Jones, “Are you telling me you did it,” the question was “reasonably likely to elicit an'incriminating response from (Jones]” and thus was the “functional equivalent of an interrogation.” Therefore, Jones urges, because Bratton did not repeat the Miranda warnings before asking this question, Jones’s responsive statements should have been suppressed.

In Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998), this court relied on Wyrick v. Fields, 459 U.S. 52 (1982), to hold that Miranda warnings “must be repeated only when the circumstances have changed so seriously that the accused’s answers are no longer voluntary, or the accused is no longer making a knowing and intelligent relinquishment or abandonment of his rights.” Conner, 334 Ark. at 473. The court continued as follows:

Although a totality-of-the-circumstances test is required, the Court in Wyrick, was particularly influenced by the fact that the accused initiated the second interrogation. We have also acknowledged that the lapse between warnings as well as the number of prior warnings are relevant concerns.

Id. (citations omitted).

Here, it cannot be said that the circumstances had changed dramatically. Jones had already been arrested and been given his Miranda warnings; he had also already confessed. The lapse of time between his first confession and his statement to Officer Bratton was only a matter of hours. Further, Jones himself initiated the conversation, volunteering the statement that he “didn’t mean for the gun to go off.” Finally, Jones had been given his Miranda warnings at least three times in the preceding three days. Viewing the totality of the circumstances surrounding Jones’s statement to Officer Bratton, we cannot say that the trial court erred in denying Jones’s motion to suppress.

For these reasons, we affirm.


author: ROBERT L. BROWN, Justice.

text:
    James HOLT, as Administrator of the Estate of Sheryl Holt, Deceased v. Dr. Taylor Dan WAGNER
    00-817
    43 S.W.3d 128
    Supreme Court of Arkansas
    Opinion delivered May 10, 2001

      Floyd A. Healy, for appellant.

      Friday, Eldredge & Clark, by: Fran C. Hickman and Jason B. Hendren, for appellee
   ROBERT L. BROWN, Justice.

Appellant James Holt, as administrator of the estate of Sheryl Holt, deceased, appeals from an order of summary judgment in favor of appellee Dr. Taylor Dan Wagner. He raises one issue on appeal — that the trial court erred in granting summary judgment because there remain genuine issues of fact regarding whether this state has adopted the theory of lost chance of survival in wrongful-death cases and whether the actions of Dr. Wagner deprived Sheryl Holt of this lost chance. We affirm the order of summary judgment.

The facts are that on April 30, 1996, Sheryl Holt was a patient of Dr. Wagner, and she had elected to have Dr. Wagner perform gallbladder surgery on her. On that date, Dr. Wagner ordered a routine chest x-ray exam prior to surgery. The x-ray was performed by Dr. Donald A. Harper, and the report following the x-ray made reference to a “right apical mass, infiltrate and/or plural thickening[,]” which is an abnormal condition. It was recommended in the report that if previous x-rays were available, they be obtained for comparison purposes or if not, that a chest CT scan be performed. Neither action was taken.

On May 2, 1996, Dr. Wagner performed the gallbladder surgery on Sheryl Holt. Dr. Wagner did not recall seeing the x-ray report or communicating its findings to her. In October 1996, Mrs. Holt was diagnosed with lung cancer, and ultimately died due to that condition on February 5, 1998.

On April 28, 1998, Holt sued Dr. Wagner and alleged in the complaint that the doctor had:

failed to utilize that degree of skill and learning ordinarily possessed and used by other members of [his] profession in good standing engaged in the same type of practice or speciality in the locality in which the practice or in a similar locality in the following manner:
a. Failure to provide follow-up care and/or refer for follow-up care per the x-ray report dated 4/30/96 that he received in preparation for surgery;
b. That the Defendant was negligent in notifying Mrs. Flolt of the findings so that she might seek further evaluation of the findings;
c. Refusal and/or failure to further investigate the mandate of the x-ray reports of 4/30/96.
As a direct result of the above negligence, five months time lapsed before a diagnosis was made of lung cancer. This critical five month period allowed the cancer to grow and spread to lymph nodes causing the tumor to become inoperable and necessitating chemotherapy and radiation therapy instead.
7. As a direct and proximate result of the Defendant’s negligence, the deceased was at a greater risk for continued cancer, spread of cancer, and death and other comphcations associated with the different treatment regime as well as the additional pain and mental anguish associated with the delay in diagnosis.

Discovery ensued, and Dr. Wagner’s counsel deposed Mr. Holt’s expert witness, a medical doctor named William Stein, III. In the deposition, Dr. Stein said that in his opinion, in April of 1996, Mrs. Holt’s tumor was “in all likelihood ... a stage IIIA or better[,]” and that “[i]n October she was almost assuredly a IIIBf.]” He later confirmed that within a reasonable degree of medical probability or certainty, “she was a IIIA or better.” He also testified that it was his belief that “in April [of 1996] there was a good chance she would have been able to have been operated on for cure and in October she could not have been.”

Dr. Stein went on to say that a stage IIIB squamous cell carcinoma for all practical purposes “would be inoperable” and “that patient is going to die of that cancer regardless of what treatment is given.” He added:

So the worst thing would have been a IIIA. If she had been operated on appropriately for cure and given the best adjuvant therapy available, it is my opinion not that she would have had what some studies show would have been a 40 plus percent chance of survival to five years. I am going to temper that somewhat and say it’s my impression she would have had approximately a 30 percent chance of being alive at five years. Because I am leaving some room on both sides. As I said before, this is a very difficult subject.

The essence of his conclusions was this:

ATTORNEY: Okay. So if the tumor had been diagnosed and treated in April of 1996, can you say within a reasonable degree of medical certainty or probability that it is more likely than not she would have survived up to five years?
STEIN: No. Because if she only had a 30 percent chance, it’s not more likely than not she would have survived five years. It’s more likely than not that she would have had a 30 percent probability of being alive at five years.
ATTORNEY: And can you say that she would have been within the 30 percent that made it to five years?
STEIN: I don’t know which side she would have fallen on. It doesn’t matter. For an individual patient, it’s either all or none. They are alive or not. My opinion she [sic] would have had a 30 percent chance of being in that group that survived five years.
....
ATTORNEY: In all fairness, I am trying to look at the best possible case scenario in the range of your opinion.
STEIN: My opinion is she was more than likely a IIIA. She could have been a II. That is less likely. Had she in any way for [sic] six months earlier, I don’t think the chance of survival went from 0 to 50 percent. I think the chance of survival, if found in April, would have been less than 50 percent at five years. What you are getting there is what is her chance of cure. I don’t think that it was 50 percent. I don’t think it was. It may have been.

As to the survival rate, given appropriate treatment, for a stage IIIB cancer, Dr. Stein testified:

It’s going to be less than five percent. As a general rule. Now, if you come up with a paper that says seven percent, I am not going to argue with that. I can come up with one that says zero. I am going to say five percent is probably way overstating it to just leave some room. I will tell you that if you have a IIIB lung cancer and you are not operated on, you are almost surely going to die of that cancer.

Following Dr. Stein’s deposition, Dr. Wagner moved for summary judgment and alleged that the undisputed evidence showed that he had committed no acts of negligence which could be a proximate cause of the injuries allegedly sustained by Sheryl Holt, or her death. In his response, Mr. Holt responded that he was suing Dr. Wagner “for medical malpractice for the deceased’s lost chance of survival” and Dr. Wagner had deprived Mrs. Holt “of at least a forty percent (40%) chance of survival[.]” The trial court, following a hearing, issued a letter opinion granting the summary-judgment motion. The letter stated, in pertinent part:

As presented at the hearing on this Motion, it is undisputed that the decedent’s, Sheryl Holt’s, death was a result of her lung cancer. The Defendant may have committed an act of negligence in this case; but there is no evidence of any acts of negligence by Dr. Taylor Dan Wagner which could be a proximate cause of the decedent’s death. The Plaintiff has stated that this is a case where the Plaintiff is asking that this court recognize a claim for “loss of chance of survival.” However, this is a theory of recovery which has not been clearly established within the courts of Arkansas.
Further, it is clear from reviewing the deposition testimony of the Plaintiffs expert, Dr. Stein, that the decedent had less than a fifty-percent chance of survival at best. In fact, the Plaintiffs expert, for the most part, stated that the decedent, Sheryl Holt, most probably had a level IIIA tumor or cancer in April of 1996 and that her chance of survival was thirty percent. As a result, this Court agrees with the reasoning of the courts in Kilpatrick vs. Bryant, 868 S.W.2d 594 (Tenn. 1993) and in Park Place Hospital, et al vs. The Estate of Lola Mile, et al 909 S.W.2d 508 (Texas 1995); and therefore concludes that Plaintiffs cause of action herein should be dismissed.

An order granting summary judgment was entered on May 8, 2000, and stated that “there is no evidence of any acts of negligence by the defendant which could be a proximate cause of the decedent’s death.”

Mr. Holt’s sole issue on appeal is whether the trial court erred in granting summary judgment in light of the lost-chance-of-survival doctrine. Mr. Holt contends that summary judgment was granted in favor of Dr. Wagner because Dr. Stein gave Mrs. Holt less than a fifty percent chance of survival in April 1996. Mr. Holt asserts, however, that Dr. Wagner offered no expert testimony that his negligence did not cause Mrs. Holt a chance of survival. He argues that this court has entertained the doctrine of lost chance and cites us to one case in support of his position, which is Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455 (1987). He concludes that Dr. Wagner did indeed cause Mrs. Holt a lost chance of survival, “whether it be 1% or 49%.”

We disagree with Holt’s insinuation that this court adopted the doctrine of lost chance of survival in Blackmon v. Langley, supra. The Blackmon case concerned a cause of action for medical malpractice and involved a patient who had sued for damages based on pain and suffering, lost wages, lost earning capacity, and mental anguish, and who was alive at the time of the lawsuit and trial. We held that the issue of proximate cause was appropriately submitted to the jury for resolution and for determination of damages. What we did in Blackmon is a far cry from recognizing a new cause of action in wrongful-death cases for lost chance of survival.

We further take note of Dr. Wagner’s reliance on Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 5 S.W.3d 460 (1999). The Ford case involved a wrongful-death action brought by two sons on behalf of their deceased father against various medical care providers. One issue raised was that the delay in performing surgery which led to a fatal, ruptured aneurysm constituted a “lost chance” for purposes of medical malpractice. We affirmed the trial court’s order of summary judgment in favor of the appellees because there was no expert testimony connecting the delay and the patient’s death. We said: “Absent a showing of proximate cause, we do not decide the question of the applicability of the ‘lost chance’ doctrine.” Ford, 339 Ark at 435, 5 S.W.3d at 462. Though Dr. Wagner relied heavily on the Ford case in his appellee’s brief before this court, Mr. Holt chose not respond to it in a reply brief.

In short, Mr. Holt asks this court to recognize a novel theory of tort recovery — the lost chance of survival — but provides us with no citation of authority or convincing argument for doing so. This court has said time and again that we will not do research for an appellant and will affirm a trial court’s decision when the appellant’s argument is not supported by legal authority or convincing argument. See, e.g., Judicial Discipline & Disab. Comm’n v. Thompson, 341 Ark. 253, 16 S.W.3d 212 (2000); Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999); Farm Bureau Policy Holders v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 335 Ark. 285, 984 S.W.2d 6 (1998). Accordingly, we affirm the summary judgment.

We recognize that lost chance of survival is a complex legal theory that has taken various shapes and forms in other states. We are not closing the door to the future adoption of one of the versions of lost chance of survival. Indeed, in Ford v. St. Paul Fire & Marine Ins. Co., supra, we came close to adopting the traditional rule regarding lost chance of survival, without couching our holding in those terms. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993) (plaintiffs should be required to show that it is more probable than not, that is, greater than 50%, that but for defendant’s negligence, plaintiff would have survived.) Suffice it to say that we will revisit the issue when it is properly presented with appropriate citation to authority and convincing argument.

Affirmed.

       According to the Lung Cancer Resource Center of the American Cancer Society’s website, in stage IIIA lung cancer, surgery may be used alone to remove the cancer or in combination with radiation or chemotherapy, but in stage IIIB, cancer has spread too widely to be completely removed by surgery.


author: ANNABELLE Clinton Imber, Justice.

text:
    Leslie G. COTHREN v. STATE of Arkansas
    CR 99-597
    42 S.W.3d 543
    Supreme Court of Arkansas
    Opinion delivered May 10, 2001

      Stuart Vess, for appellant.

      Mark Pryor, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton Imber, Justice.

Appellant, Leslie G. Cothren, appeals the Cleburne County Circuit Court’s denial of his petition for postconviction relief pursuant to Ark. R. Cr. P. 37. Mr. Cothren was convicted of manufacturing methamphetamine in an amount of at least 200 grams but less than 400 grams, and possession of methamphetamine with intent to deliver in an amount within the same weight range. He argues that one of his convictions was obtained in violation of his rights against double jeopardy and therefore should be vacated. He further argues that he was denied a fair trial by the failure of both trial counsel and the trial court to take appropriate action in response to an improper closing argument by the prosecuting attorney. We affirm the circuit court’s denial of postconviction relief.

On September 22, 1996, officers from the Cleburne County Sheriffs Department, the Arkansas State Police, and the Arkansas Drug Enforcement Agency were dispatched to the Ozark Dental Lab in Quitman, Arkansas, where a possible burglary was underway. When the officers arrived, a man inside was threatening to come out shooting. In fact, there was no burglary. Bryan Barber, who had called 911, was under the influence of methamphetamine when he eventually exited the building and surrendered to the police. The officers then searched the building to be certain no one else was inside and discovered several items of paraphernalia commonly used in the manufacture of methamphetamine, as well as instructions copied from a technical manual that detailed how to manufacture the drug. Mr. Barber informed the officers that he had loaned his red Dodge pickup to Mr. Cothren, who operated the dental lab. Mr. Cothren appeared approximately ten minutes later in Mr. Barber’s truck. Officers conducted a pat-down search of Mr. Cothren and found a plastic bag containing 1.4 grams of powdered crystal methamphetamine, an amber, screw-cap bottle containing 0.442 grams of methamphetamine, and $360 in cash in his pockets. Officers were able to look through the windows in the truck’s camper and see a glass jar full of ether and two cake pans containing methamphetamine in an unfinished state. The two cake pans contained a total of 326.9 grams of a gummy substance that was determined to be twenty-five percent methamphetamine.

Mr. Cothren was charged by information in the Cleburne County Circuit Court with one count of manufacturing a controlled substance (methamphetamine) in an amount greater than 200 grams and less than 400 grams and one count of possession of a controlled substance (methamphetamine) with intent to deliver in an amount greater than 200 grams and less than 400 grams, both Class Y felonies proscribed by Ark. Code Ann. § 5-64-401 (Supp. 1999). Following a jury trial, Mr. Cothren was convicted on both counts. The trial court sentenced him to twenty years’ imprisonment on each count, to be served consecutively, and imposed a fine of $10,000 on each count.

Mr. Cothren’s conviction was affirmed on direct appeal. Cothren v. State, CACR97-1230 (Ark. App. May 6, 1998). He then petitioned for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. The trial court denied the petition and this appeal followed. For reversal, Mr. Cothren argues that his conviction and sentence is in violation of double jeopardy and that he was denied due process and effective assistance of counsel by the failure of trial counsel or the trial court to respond appropriately to an improper closing argument by the prosecuting attorney.

We will not reverse the denial of a Rule 37 petition unless the trial court’s decision is clearly erroneous. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998) (per curiam), citing Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). The question on appeal is whether, based upon the totality of the evidence, the trial court clearly erred in holding that counsel’s performance was not ineffective under the standard set in Strickland v. Washington, 466 U.S. 668 (1984). State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998). We recently reiterated the Strickland standard for assessing the effectiveness of trial counsel:

According to that standard, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

Sasser v. State, 338 Ark. 375, 385, 993 S.W.2d 901, 907 (1999). Furthermore, we have stated many times that “a lawyer’s choice of trial strategy that proved ineffective is not a basis for meeting the Strickland test.” State v. Slocum, 332 Ark. at 213, 964 S.W.2d at 391, (citing Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995); Monts v. State, 312 Ark. 547, 851 S.W.2d 432 (1993)).

A petitioner may also qualify for Rule 37 relief, regardless of trial counsel’s performance, if he demonstrates error so fundamental as to render the judgment of conviction void and subject to collateral attack. Sasser v. State, supra. A violation of double jeopardy is just such an error. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982).

I. Double Jeopardy

For his first point on appeal, Mr. Cothren argues that he is entitled to have one of his convictions set aside because his trial counsel was ineffective in failing to object on double jeopardy grounds to his conviction and sentencing for both the manufacture of methamphetamine and the possession of methamphetamine with intent to deliver. The State argues that Mr. Cothren’s double-jeopardy argument is not cognizable in a Rule 37 proceeding based upon the fact that the argument was not raised before the original trial court, and therefore should not be addressed on the merits. We rejected this argument in Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000), wherein we reaffirmed that a violation of double jeopardy is an error so fundamental that it renders the judgment of conviction void. Accordingly, we held that a double-jeopardy claim can be raised for the first time in a Rule 37 petition. Id., 341 Ark. at 37, 13 S.W.3d at 907. We therefore address the merits of Mr. Cothren’s double-jeopardy argument.

The Double Jeopardy Clauses of the United States and Arkansas Constitutions protect criminal defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Wilcox v. State, 342 Ark. 388, 39 S.W.3d 434 (2000); North Carolina v. Pearce, 395 U.S. 711 (1969); Zawodniak v. State, 339 Ark. 66, 3 S.W.3d 292 (1999). The third protection is at issue here. Mr. Cothren argues that he has been punished twice for the same offense because possession of a controlled substance with intent to deliver is a lesser included offense of manufacturing the controlled substance.

In Blockburger v. United States, 284 U.S. 299 (1932), the U.S. Supreme Court held that the double jeopardy bar applies in the multiple punishment context where the two offenses for which the defendant is punished cannot survive the “same-elements” test. The same-elements test, commonly referred to as the “ Blockburger” test, is as follows:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not .... [A] single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Blockburger v. U.S., 284 U.S. at 304. The Blockburger test has been applied by this court, Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993), and the Arkansas General Assembly has codified this constitutional protection at Ark. Code Ann. § 5-1-110 (Repl. 1997), which provides in relevant part:

(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section;
* * * * *
(b) . . . . An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged;

Mr. Cothren was charged and convicted of two counts of violating Ark. Code Ann. § 5-64-401 (Supp. 1999), which proscribes the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance. The charges and convictions were based upon one manufacturing count and one possession-with-intent-to-deliver count, with both counts being for methamphetamine in an amount within the same weight range — between 200 and 400 grams. The Arkansas Criminal Code defines the term “manufacture” as follows:

“Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use ....

Ark. Code Ann. § 5-64-101 (Repl. 1997).

As Mr. Cothren has argued, possession of a controlled substance is a lesser-included offense of manufacturing that substance. Craig v. State, 314 Ark. 585, 589, 863 S.W.2d 825, 827 (1993). Consequently, conviction of both crimes, if arising from the same course of conduct, violates double jeopardy. Id. However, Mr. Cothren was not convicted of simple possession. Mr. Cothren was convicted of possession with intent to deliver. Based upon the language of the statute excepting the preparation or compounding "of a controlled substance for an individual’s own use, Mr. Cothren argues that the intent to deliver is a required element of manufacturing a controlled substance as defined by section 5-64-101(m). "We disagree. In order to convict Mr. Cothren of the offense of manufacturing a controlled substance, the statute requires the State to prove that he was engaged in the production, preparation, propagation, compounding, conversion, or processing of a controlled substance. Ark. Code Ann. § 5-64-101(m). There is no requirement that the State prove additionally that Mr. Cothren intended to deliver the controlled substance, although Mr. Cothren was given the opportunity under the statute to assert as a defense to prosecution that he was not guilty of manufacturing a controlled substance because the methamphetamine was for his own use. Id.

Applying the Blockburger test to the statutes at issue, therefore, it becomes evident that possession of a controlled substance with intent to deliver is not a lesser-included offense of manufacturing a controlled substance. A conviction for manufacturing requires proof that the defendant produced, prepared, propagated, compounded, converted, or processed a controlled substance. Ark. Code Ann. § 5-64-101(m). Possession with intent to deliver requires no such proof. Ark. Code Ann. § 5-64-401. Furthermore, as stated above, a conviction for manufacturing does not require proof of intent to deliver, an element essential to a conviction for possession with intent to deliver. Id. Because the two offenses for which Mr. Cothren was convicted each require the proof of an element not common to the other, possession with intent to deliver is not a lesser-included offense of manufacturing a controlled substance. Ark. Code Ann. § 5-1-110.

Mr. Cothren argues, additionally, that he cannot be convicted of both manufacturing and possession of a controlled substance with intent to deliver based upon the evidence presented because both offenses arise out of the same impulse and, therefore, constitute a continuing course of conduct. The trial court held that Mr. Cothren’s conduct was not one continuing course, but two separate courses of conduct. The manufacturing conviction arose out of the manufacturing process that took place inside the dental lab. The possession-with-intent-to-deliver conviction arose out of Mr. Cothren’s possession of the product as it was completing its process of production in the back of the red Dodge pickup. We cannot say the trial court clearly erred in this finding. The testimony of several witnesses at trial established the fact that Mr. Cothren used the dental lab in Quitman for the production of methamphetamine. Mr. Barber testified that Mr. Cothren was in the process of making a batch of methamphetamine when he called to invite Barber to visit. Mr. Barber joined Mr. Cothren at the dental lab for the purpose of observing the manufacturing process at the lab on September 22, 1996. Paraphernalia commonly used in the manufacture of methamphetamine and detailed instructions for its manufacture were found within Mr. Cothren’s dental lab. The paraphernalia included opened batteries, antihistab packages, and used cans of starting fluid, all of which contain ingredients necessary for manufacturing methamphetamine. The compound substances found in some of the containers tested positive for methamphetamine. A man and a woman came to the lab “to buy and ounce.” Mr. Cothren asked to borrow Mr. Barber’s truck and loaded everything, promising to “split whatever he made” with Mr. Barber. It was after Mr. Cothren left in Mr. Barber’s truck that Mr. Barber called 911 to report a possible burglary. .When Mr. Cothren returned to the dental lab in Mr. Barber’s truck, police observed the two cake pans of methamphetamine in the back of the pickup and arrested Mr. Cothren.

As the court of appeals noted in Mr. Cothren’s direct appeal, “a substance does not have to be in a form to be sold before ‘manufacturing’ occurs.” Cothren v. State, CACR97-1230, slip op. at 1. Mr. Cothren had committed the offense of manufacturing a controlled substance inside the dental lab before he left the premises. The fact that the methamphetamine was still “cooking” when he was found to be in possession of it with intent to deliver does not cause the two offenses to be merged into one continuing course of conduct.

A “continuing offense” is one that is a “continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force.” Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). The test to determine if a situation involves a continuing offense is “whether the individual acts are prohibited, or the course of action which they constitute; if the former, then each act is punishable separately; if the latter, there can be but one penalty.” Id., 261 Ark. at 493, quoting Wharton, Criminal Law, 11th ed. § 34, n. 3. Put another way, “when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.” Id. Examples given in Britt and cited in several subsequent cases of continuing offenses include nonsupport [Ark. Code Ann. § 5-26-401], promoting prostitution [Ark.. Code Ann. §§ 5-70-104 - 106], and erecting or maintaining a gate across a public highway [Ark. Code Ann. § 5-71-214],

McLennan v. State, 337 Ark. 83, 88-89, 987 S.W.2d 668, 671 (1999). In the instant case, it is the individual acts of manufacture and possession with intent to deliver that are prohibited, not the continuing course of action. For these reasons, Mr. Cothren’s conviction of both offenses does not violate double-jeopardy principles, and the trial court did not clearly err in denying the petition for post-conviction relief.

II. Closing Arguments

For his second point on appeal, Mr. Cothren argues that his trial counsel was ineffective in fading to object and demand a mistrial in response to improper argument by the prosecuting attorney during closing arguments. Mr. Cothren’s argument relates to the following statement regarding the statutory presumption of intent to deliver that was made by the prosecuting attorney during closing arguments: “The law says that the amount of methamphetamine gives rise to the possession with the intent to deliver.” Mr. Cothren argues further that the trial court had an affirmative duty to declare a mistrial on its own motion in response to the prosecutor’s argument.

In response, the State argues that the prosecuting attorney did not improperly argue the statutory presumption. If the prosecutor’s argument was improper, however, the State argues that Mr. Cothren’s argument concerning the trial court’s duty to act on its own is not preserved for review. Further, the State argues that the failure of Mr. Cothren’s trial counsel to object to the argument was a legitimate trial strategy. Finally, the State asserts that, even if error is shown, Mr. Cothren has failed to demonstrate prejudice.

With regard to the trial court’s duty on its own motion to act, Mr. Cothren’s argument is not cognizable in a Rule 37 proceeding. “To the extent that [Mr. Cothren] argues that the trial court erred when it did not, on its own motion, seek to remedy the alleged prejudice caused by the prosecutor’s remarks, we conclude that he cannot raise that argument for the first time in a Rule 37 proceeding. This is an allegation of trial error that should have been raised on direct appeal. As we explained above, such an error can only be raised for the first time under Rule 37 if it is so fundamental as to render the judgment void and subject to collateral attack. In Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983), we held that a trial error involving a remark made by a prosecutor during closing argument was not ‘fundamental.’ ” Sasser v. State, 338 Ark. at 390, 993 S.W.2d at 910. Accordingly, we may only consider Mr. Cothren’s claim that his counsel was ineffective for failing to object to the prosecutor’s comments.

Mr. Cothren’s trial counsel testified at the Rule 37 hearing that he did not find the prosecutor’s closing arguments at trial objectionable. Even in hindsight, he was not certain that the arguments were improper. Once again, as we stated in Sasser v. State:

Experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor’s comments seem more significant to the jury. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct. Cohen v. United States, 996 F. Supp. 110 (D. Mass. 1998).

338 Ark. at 391, 993 S.W.2d at 910. We cannot say that the circuit court clearly erred when it found that Mr. Cothren failed to prove a deficient performance by trial counsel. In any event, Mr. Cothren has failed to show that there is a reasonable probability that the outcome of his trial would have been different if trial counsel had made an objection to the prosecutor’s comment. Sasser v. State, supra. Consequently, Rule 37 relief is not warranted.

Affirmed.

       Mr. Cothren’s name has been misspelled “Cothern” in the style of the case as filed with the Supreme Court Clerk. We have corrected the spelling for purposes of this opinion in order to be consistent with the prior appeal filed by Mr. Cothren.

       The record reflects that Mr. Cothren told the police “that [the two cake pans] was the stuff that they made,” which evidence supports the conviction of manufacturing methamphetamine in the amount of at least 200 grams but less than 400 grams.

       Because Mr. Cothren possessed over 200 milligrams of methamphetamine in the truck, there existed a rebuttable presumption that he possessed it with intent to deliver. See Ark. Code Ann. § 5-64-401(d) (Repl. 1997). The two cake pans contained an aggregate weight, including adulterants and diluents, of 326.9 grams of methamphetamine. Ark. Code Ann. § 5-64-401 (a).