NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION I

DANNY GIPSON,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-408

DECEMBER 5, 2001

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT,

NO. CR00-82B,

HON. FLOYD G. ROGERS, JUDGE

AFFIRMED

Appellant Danny Gipson was convicted of arson, resulting from the destruction of his brother's mobile home by fire. Gipson signed an advice-of-rights form and gave a videotaped statement, in which he admitted to setting the fire. Gipson appeals his arson conviction, contending that: (1) the trial court erred in denying his motion to suppress the statement he gave on April 18, 2000; (2) the evidence was insufficient to support a conviction of arson; (3) the court erred in denying the his Rule 37 petition, when the Rule 37 petition was filed prior to the issuance of the mandate of the case on appeal in this court; (4) the court erred in denying his motion for recusal; (5) the court erred in failing to rule upon his request for a writ of error coram nobis; (6) that the petition for reduction of sentence was appealable despite the failure to obtain a ruling in the trial court; (7) the court should have granted his pro se motion for full investigation; (8) the court should have

granted his motion for retrial. We affirm.

Sufficiency of the Evidence

Preservation of an appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001). In determining the sufficiency of evidence, an appellate court reviews all of the evidence introduced at trial, whether correctly or erroneously admitted. Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996). If substantial evidence was presented, but prejudicial trial error occurred, the case is reversed and remanded. Id. If, however, after considering all of the evidence, whether correctly or erroneously admitted, the party having the burden of proof failed to prove its case by the appropriate standard, the case is reversed and dismissed. Id.

The State correctly contends that Gipson did not preserve his challenge to the sufficiency of evidence because he failed to move for a specific directed verdict at the close of the State's case. Gipson concedes that he moved for a directed verdict only on the basis that the State had failed to prove a prima facie case, without specification of which elements he contends were not met. Such a general motion is inadequate to preserve a sufficiency argument on appeal. See Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001); Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). Due to this lack of specificity, Gipson is procedurally barred from challenging the sufficiency of the evidence on appeal.

Denial of Motion to Suppress

The fire that destroyed the trailer of Gipson's brother occurred on February 7, 2000. Gipson was arrested on a parole violation on March 8, 2000. On April 11, 2000, Gipson attempted to file a motion requesting a court-appointed attorney to represent him in the arson case. However, no charges related to the fire had been filed against Gipson as of that date; thus, the clerk returned the motion accompanied by a letter dated April 11, 2000, explaining that the motion would not be filed because there was no case file pertaining to any arson charge against Gipson.

On April 18, 2000, Detective Ron Lockhart interrogated Gipson regarding the trailer fire. Gipson signed a waiver-of-rights form wherein he acknowledged by his initials and signature that he understood that he could talk to an attorney before the interrogation; that he could have an attorney present during the interrogation; and, if he chose not to have an attorney present, that he would still have the right to terminate the interrogation until he spoke with an attorney. He further acknowledged on videotape that he had requested to speak with Detective Lockhart and that no threats or promises had been made to him. During this interrogation, Gipson admitted that he started the trailer fire. Gipson was arrested and then arraigned on the arson charge on April 19, 2000. The trial court denied Gipson's motion to suppress, and Gipson was convicted of arson.

In reviewing a trial court's ruling on a motion to suppress, this court views the evidence in the light most favorable to the State and makes an independent determination based on the totality of the circumstances. Lacy v. State, 345 Ark. 63, 44 S.W.3d 296 (2001). This court will only reverse a trial court's ruling on a motion to suppress if the ruling was clearly erroneous. Id. A statement made while an accused is in custody ispresumptively 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. Id.

a. Validity of the waiver

A waiver of right to counsel must be made both voluntarily, and knowingly and intelligently. See Clay v. State, 318 Ark. 122, 833 S.W.2d 822 (1994). In determining the validity of a waiver of the right to counsel, the court reviews both the voluntariness of the waiver and whether the waiver was made knowingly and intelligently. Id. In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Lacy, supra. The inquiry into the knowing and intelligent nature of the waiver focuses on determining whether the waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id. Additionally, it is well settled that when an accused requests an attorney, a police interrogation must cease until counsel has been made available to him. Edwards v. Arizona, 451 U.S. 477 (1981); Lacy, supra. However, if the accused initiates further communication, exchanges, or conversations with police officers, any resulting statement may be admissible. See Edwards, supra; Lacy, supra.

Mary Shelee, who worked at the Sebastian County jail, testified during the trial that Gipson and his brother had requested to speak to Detective Lockhart. During the videotaped interrogation, Gipson agreed that he had requested to speak with the detective. Gipsontestified that he requested an attorney just minutes prior to this April 18, 2000, interrogation. However, he admitted that he had every opportunity to state on tape that he had been pressured, forced, or wanted an attorney, and that he did not do so. Detective Lockhart testified that Gipson never requested an attorney during the interrogation on April 18, 2000. At no point in the transcript of the videotaped conversation did Gipson request an attorney. This testimony presents an issue of credibility for the trial court to determine. Steggall v. State, 340 Ark. 184, 195, 8 S.W.3d 538, 546 (2000) ("the only evidence that Steggall presents that he asked for an attorney is his own testimony. This issue then turned on credibility, and it is in the province of the finder of fact to determine the credibility of the witnesses."). Furthermore, Gipson was "no stranger to the criminal justice system," having had two previous felony convictions. See Boone v. State, 334 Ark. 452; 976 S.W.2d 921 (1998) (recognizing the familiarity of the accused to the criminal justice system as a factor in determining whether a statement was the product of a free and deliberate choice rather than intimidation, coercion, or deception).

We hold that Gibson's waiver of his Miranda rights was made voluntarily, knowingly, and intelligently.

b. Voluntariness of the statement

Though we hold that Gipson validly waived his Miranda rights, we must yet examine the voluntariness of the statement. Clay, supra. A totality-of-the-circumstances test is applied in determining the voluntariness of custodial statements, and there are two components to such test. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997). First, weexamine the statements of the interrogating officers. Id. Second, we consider the vulnerability of the defendant, weighing such factors as age, education, intelligence, repeated or prolonged nature of questioning, delay between receiving Miranda warnings and giving a confession, length of detention, use of physical punishment, and the defendant's physical and emotional condition. Id. Furthermore, a finding of police misconduct is essential. Id.

Gipson was twenty-eight years old when he made the confession statement; had obtained his GED; the Miranda warning had been given just minutes prior to the interrogation; Gipson admitted during the videotaped interrogation that no threats against him or promises to him had been made by police officers; the entire interrogation lasted only approximately forty-five minutes; and there is no indication from the transcript of the interrogation or from testimony that Gipson's physical or emotional condition was impaired. Based upon the totality of the circumstances, we hold that Gipson's statement during the April 18, 2000 interrogation, by which he admitted to setting the trailer fire, was voluntary. The trial court's denial of the motion to suppress was not clearly erroneous, as Gipson had validly waived his Miranda right to counsel and made the statement voluntarily. Accordingly, we affirm.

Rule 37 Petition

Gipson next contends that the trial court erred by considering and denying his Rule 37 petition because it was filed prior to the issuance of the mandate of the case on appeal in this court.

The State concedes that the trial court should not have considered the Rule 37 petition. In Tapp v. State, 324 Ark. 176, 920 S.W.2d 482 (1996), our supreme court stated that "[p]ostconviction relief under Rule 37 cannot be had while an appeal is pending. Thus, the trial court was without authority to do more than dismiss the pro se motion for new trial under the rule once it determined that it was not timely filed." The court further stated that "[t]he petition must be filed after the mandate is issued because, when a case is directly appealed, the circuit court does not regain jurisdiction over the case until that event occurs. A court must have jurisdiction before it can do more with respect to a Rule 37 petition than examine it to see if it is timely." Id. (emphasis in original). Because the circuit court in Tapp lacked jurisdiction to address the Rule 37 petition on the merits, the supreme court dismissed the appeal.

Pursuant to Tapp, the trial court in the case at bar lacked jurisdiction to consider the Rule 37 petition on the merits. Because the trial court lacked jurisdiction, the appellate court lacks jurisdiction to review the decision, and we must dismiss this point on appeal.

Other Points on Appeal

Gipson concedes that his remaining points on appeal are either not preserved for our review or do not present reversible error. We agree. The pro se Motion for Full Investigation and Motion for Retrial were untimely filed; thus, the deemed denial of such motions by operation of law under Arkansas Rule of Criminal Procedure 33.3 was not error. Gipson failed to obtain a ruling upon his request for a writ of error coram nobis and his petition for reduction of sentence. Failure to obtain a ruling on an issue at the trial courtlevel precludes review of the issue on appeal. Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998). The motion for recusal was denied subsequent to the filing of the notice of appeal. Gipson failed to amend the notice of appeal; thus, the denial of the motion for recusal was not preserved for our review. See Ark. R. App. P. - - Crim. 2.

Affirmed.

Jennings, J., agrees.

Roaf, J., concurs.