                                 Cite as 2017 Ark. App. 248


                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CR-16-833



                                                   Opinion Delivered: April   26, 2017
JULIA BLACKWELL
                                APPELLANT
                                                   APPEAL FROM THE PULASKI
V.                                                 COUNTY CIRCUIT COURT,
                                                   FIRST DIVISION
                                                   [NO. 60CR-10-2047]
STATE OF ARKANSAS
                                   APPELLEE
                                                   HONORABLE LEON JOHNSON,
                                                   JUDGE

                                                   AFFIRMED


                          RAYMOND R. ABRAMSON, Judge

        Julia Blackwell appeals the order of the Pulaski County Circuit Court denying her

 petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1

 (2016). We affirm the circuit court’s decision.

        On March 28, 2010, a car driven by Blackwell hit Ralph John Friedmann, who was

 walking on a sidewalk along Breckenridge Drive in Little Rock. Friedmann died from his

 injuries on June 8, 2010. On June 24, 2010, the State charged Blackwell with felony

 negligent homicide and third-degree battery for the death of Friedmann. On September 4,

 2013, the State amended the charges to include a charge for manslaughter.

        Thereafter, a jury convicted Blackwell of felony negligent homicide, manslaughter,

 and third-degree battery. The jury sentenced Blackwell to ten years’ imprisonment for

 felony negligent homicide and fined her $500 for third-degree battery. The jury did not
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sentence Blackwell on the manslaughter charge at the request of the State. On February 18,

2015, this court affirmed Blackwell’s conviction. Blackwell v. State, 2015 Ark. App. 96, 455

S.W.3d 848.

       On June 5, 2015, Blackwell filed a petition in the Pulaski County Circuit Court for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. She alleged

that her trial counsel was ineffective for failing to (1) move to dismiss either the felony

negligent-homicide charge or the manslaughter charge; (2) object to the use of nonpattern

jury instructions; (3) cross-examine former police officer Natasha Sims about her

termination from the Little Rock Police Department; (4) protect her right to trial by an

impartial jury; (5) object to the prosecutor’s improper acquisition of her sealed medical

records; and (6) object or move for a mistrial after the prosecutor made personal attacks on

her trial counsel during closing arguments.

       On February 19, 2016, the court held an evidentiary hearing and took the matter

under advisement. Thereafter, on May 27, 2016, the court entered an order denying

Blackwell’s petition. On June 23, 2016, Blackwell appealed the decision. We assumed

jurisdiction of this appeal pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, ___ S.W.3d

___ (per curiam).

       We do not reverse a denial of postconviction relief unless the circuit court’s findings

are clearly erroneous. Reed v. State, 2011 Ark. 115 (per curiam). 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. Id.


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       The benchmark question to be resolved in judging a claim of ineffective assistance

of counsel is 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. Norris

v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam). We assess the effectiveness of counsel

under a two-prong standard as set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). See Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (per

curiam). Under the Strickland test, a claimant must show that counsel’s performance was

deficient, and the claimant must also show that the deficient performance prejudiced the

defense to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy

both prongs of the test, and it is unnecessary to examine both components of the inquiry if

the petitioner fails to satisfy either requirement. See Pennington v. State, 2013 Ark. 39 (per

curiam).

       A petitioner claiming ineffective assistance must first show that counsel made errors

so serious that counsel was not functioning as the “counsel” guaranteed to the petitioner by

the Sixth Amendment to the United States Constitution. Walton v. State, 2013 Ark. 254,

(per curiam). There is a strong presumption that trial counsel’s conduct falls within the wide

range of reasonable professional assistance, and an appellant has the burden of overcoming

this presumption by identifying specific acts or omissions of trial counsel that when viewed

from counsel’s perspective at the time of the trial could not have been the result of

reasonable professional judgment. Id.

       In order to meet 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


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counsel’s errors. Delamar v. State, 2011 Ark. 87 (per curiam). A reasonable probability is a

probability sufficient to undermine confidence in the outcome of the trial. Id.

       On appeal, Blackwell first argues that her trial counsel was ineffective for failing to

obtain a ruling from the circuit court on the use of nonpattern jury instructions at trial. She

recognizes that her trial attorney made “extensive” arguments at trial concerning the

instructions but asserts that she failed to obtain a ruling to preserve the issue for appeal. She

claims that the verdict forms in the instructions were flawed because they did not have a

place for the jury to indicate “not guilty” for felony negligent homicide and manslaughter.

She asserts that the instructions amounted to a fundamental structural error in the trial

mechanism. The verdict forms submitted to the jury stated as follows:

                                              COUNT 1

       We, the jury, find Julia Blackwell guilty of Negligent Homicide (intoxication).
                                                         ______________________
                                                               FOREPERSON

       We, the jury, find Julia Blackwell guilty of Negligent Homicide (negligence).
                                                         _____________________
                                                               FOREPERSON

       We, the jury, find Julia Blackwell not guilty of Negligent Homicide (negligence).
                                                         ______________________
                                                               FOREPERSON
       ....

                                              COUNT 2

       We, the jury, find Julia Blackwell guilty of Manslaughter (recklessness).
                                                        ______________________
                                                               FOREPERSON

       We, the jury, find Julia Blackwell guilty of Negligent Homicide (negligence).
                                                         ______________________
                                                               FOREPERSON

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       We, the jury, find Julia Blackwell not guilty of Negligent Homicide (negligence).

                                                           ______________________
                                                                 FOREPERSON

       We hold that the circuit court did not clearly err in finding that Blackwell was not

entitled to postconviction relief under this claim. Blackwell incorrectly states that the circuit

court made no ruling on her trial counsel’s objection to the instructions. The trial record

shows that the circuit court found that Blackwell’s trial counsel had made a “good

argument” concerning the instructions, but the court submitted the nonpattern instructions

to the jury. Further, the court asked Blackwell’s trial counsel whether she wanted to proffer

her instructions, and she did. Thus, the trial court did make a ruling on the issue.

       Further, as to Blackwell’s argument that her counsel should have appealed the issue,

she has failed to establish a meritorious issue that she could have appealed. A petitioner who

claims that appellate counsel was ineffective bears the burden of making a clear showing that

counsel failed to raise some meritorious issue on appeal. Moore v. State, 2011 Ark. 269 (per

curiam). The petitioner must show that there could have been a specific issue raised on

appeal that would have resulted in the appellate court’s declaring reversible error. Walton v.

State, 2013 Ark. 254 (per curiam).

       In this case, Blackwell claims the instructions amounted to a fundamental structural

defect in the trial, like the instructions in Sullivan v. Louisiana, 508 U.S. 275 (1993). We

disagree. In Sullivan, the United States Supreme Court held that an erroneous instruction

that misstated the State’s burden of proof was a structural defect in the trial mechanism. Id.

The Court reasoned that, where the jury convicts a defendant according to an erroneous

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instruction about the State’s burden of proof, there has been no actual finding of guilty as

required by the Sixth Amendment. Id. Here, Blackwell has not shown that the instructions

misstated the law such that there had been no actual finding of guilt. The verdict forms

instruct the jury to first consider the higher charge, then the lesser charge, and then provide

the jury with the option to find Blackwell not guilty. Accordingly, we hold that the circuit

court did not clearly err in finding that Blackwell was not entitled to relief under this ground.

       Blackwell next argues that the circuit court erred in finding that her trial counsel was

not ineffective for failing to cross-examine former police officer Natasha Sims concerning

her termination from the Little Rock Police Department based on allegations of dishonesty.

She points out that crucial pieces of evidence at trial were her urine samples, which Sims

took. She recognizes that her counsel attempted to question Sims about the allegations at a

suppression hearing and that the circuit court instructed her not to question Sims about the

allegations because Sims had appealed her termination. However, Blackwell claims that her

trial counsel should have raised the issue at trial because, during questioning at trial, the State

asked Sims why she had been terminated and Sims stated that she had appealed the

termination. The circuit court found that Blackwell was not entitled to relief under this

ground because Blackwell’s trial counsel made a strategic decision not to cross-examine Sims

about her termination.

       When 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. Counsel is allowed

great leeway in making strategic and tactical decisions. Leak v. State, 2011 Ark. 353 (per


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curiam). In this case, counsel testified at the evidentiary hearing that she “wrestled” with

the decision whether to impeach Sims about her termination but decided not to cross-

examine her because the trial court had already stated that it would exclude that testimony.

She further testified that she had researched the status of Sims’s appeal and determined that

it was ongoing. Given this testimony, we cannot say that the circuit court clearly erred in

finding that counsel made a reasonable and professional decision not to question Sims about

her termination.

       Blackwell next argues that her trial counsel was ineffective for failing to move to

dismiss either the felony negligent-homicide charge or the manslaughter charge because the

charges violate her right against double jeopardy. When it is alleged that counsel was

ineffective for the failure to make a motion or argument, the petitioner must show that the

motion or argument would have been meritorious because the failure to make an argument

that is meritless is not ineffective assistance of counsel. Conley v. State, 2014 Ark. 172, 433

S.W.3d 234. Thus, in this case, Blackwell must show that a double-jeopardy argument

would have resulted in the dismissal of the charges for felony negligent homicide or

manslaughter.

       Blackwell has failed to make that showing. She summarily asserts that her counsel

should have moved to dismiss the charges because the charges violate double jeopardy, but

she cites no authority in support of her argument. 1 “Conclusory statements in a [Rule 37]


       1
        In her brief, Blackwell references footnote number five in this court’s opinion on
the direct appeal of her convictions and claims that her convictions violate double jeopardy
because this court found that her convictions violate double jeopardy. She is mistaken. This
court did not find that her convictions violate double jeopardy. See Blackwell v. State, 2015
Ark. App. 96, 455 S.W.3d 848.

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petition or in a brief on appeal are insufficient to overcome the presumption that counsel

was effective.” Ellis v. State, 2014 Ark. 24, at 3 (per curiam). We do not research or develop

arguments for appellants. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107. Moreover, the State

correctly asserts in its brief that Blackwell’s convictions do not violate double jeopardy

because felony negligent homicide requires the element of intoxication, which is not

included in the definition of manslaughter. See Walker v. State, 2012 Ark. App. 61, at 5, 389

S.W.3d 10, 13 (“Where 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.”).

Accordingly, we find no merit here.

       Blackwell next argues that her counsel was ineffective for failing to protect her right

to trial by an impartial jury. She points out that during the sentencing phase of trial, the

State published a photograph to the jury of the victim donating a check to Arkansas

Children’s Hospital and that a juror was in the picture. She asserts that her trial counsel

should have moved for a mistrial as a result of the photo.

       The decision to accept or exclude a particular juror may be a matter of trial strategy

or technique. Butler v. State, 2011 Ark. 435, 384 S.W.3d 526 (per curiam). Further, as we

have stated, counsel cannot be considered deficient for failing to make a meritless objection.

Conley, 2014 Ark. 172, 433 S.W.3d 234. A mistrial is an extreme and drastic remedy to be

resorted to only when there has been an error so prejudicial that justice cannot be served by

continuing the trial. See Ellis v. State, 2014 Ark. 24 (per curiam); Green v. State, 2013 Ark.

497, 430 S.W.3d 729.


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       In this case, the trial record shows that after the court learned that the juror was in

the photo, it called a recess and questioned the juror. The juror stated that she had been

employed at Arkansas Children’s Hospital for thirteen years, that she had worked with

thousands of donors and volunteers, that she did not remember the picture, and that she

could remain fair and impartial. At the evidentiary hearing, Blackwell’s trial counsel testified

that she was satisfied with the juror’s response but that Blackwell insisted that she object to

the juror’s remaining on the panel and that she did object. However, the trial court

overruled the objection. Trial counsel further stated that she did not move for a mistrial

because the juror had no memory of the picture, which was more than ten years old. Given

this evidence, we hold that the circuit court did not clearly err in finding that Blackwell’s

trial counsel was not ineffective for not moving for a mistrial based on the juror’s presence

in the photo.

       Blackwell next argues that her trial counsel was ineffective for failing to appeal the

State’s acquisition of her sealed medical and psychological records filed in a separate, civil

case. The circuit court found that Blackwell had no relief under this claim because her

counsel objected to the use of the records and the records were not used at trial. At the

evidentiary hearing, trial counsel testified that when she learned that the State had obtained

the records, she filed a motion in limine to exclude the use of the records. Further, she

explained that the records were not introduced at trial and that no witnesses testified about

the records.

       We hold that the circuit court did not clearly err in finding that Blackwell’s counsel

was not ineffective for failing to appeal the State’s acquisition of her medical and


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psychological records. Once again, a petitioner who claims that appellate counsel was

ineffective bears the burden of making a clear showing that counsel failed to raise some

meritorious issue on appeal. Moore, 2011 Ark. 269. The petitioner must show that there

could have been a specific issue raised on appeal that would have resulted in the appellate

court’s declaring reversible error. Walton, 2013 Ark. 254. Blackwell has cited no authority

showing that the State’s acquisition of her records would have resulted in a reversible error.

Accordingly, there is no basis on which to grant postconviction relief on this claim.

       Blackwell lastly argues that her trial counsel was ineffective for failing to move for a

mistrial after the prosecutor made personal attacks on her counsel during closing remarks.

She points out that the prosecutor made comments questioning her counsel’s credibility

such as that her “whole idea . . . her whole alternate theory is fantasy.” When it is alleged

that counsel was ineffective for the failure to make a motion or argument, the petitioner

must show that the motion or argument would have been meritorious because the failure

to make an argument that is meritless is not ineffective assistance of counsel. Conley, 2014

Ark. 172, 433 S.W.3d 234. It is well settled that closing remarks that require reversal are

rare and require an appeal to the jurors’ passions. Wooten v. State, 2016 Ark. 376, 502 S.W.3d

503. Further, as we have stated, a mistrial is an extreme and drastic remedy to be resorted

to only when there has been an error so prejudicial that justice cannot be served by

continuing the trial. See Ellis, 2014 Ark. 24; Green, 2013 Ark. 497, 430 S.W.3d 729.

Blackwell has not shown the prosecutor’s comments warranted a mistrial. Accordingly, we

hold that the circuit court did not clearly err in finding that Blackwell was not entitled to

relief under this claim.


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Affirmed.

HIXSON and MURPHY, JJ., agree.

Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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