Smith v. State
| Decision Date | 26 August 2015 |
| Docket Number | No. CR–14–997,CR–14–997 |
| Citation | 467 S.W.3d 750,2015 Ark. App. 418 |
| Parties | Claude Smith, Appellant v. State of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
James Law Firm, by: Lee D. Short, Little Rock, for appellant.
Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellee.
Claude Smith was convicted after a jury trial in the Pulaski County Circuit Court of violating Arkansas Code Annotated section 27–53–103 (Repl. 2010), by failing to immediately stop or remain at the scene after hitting Lois Sandusky with his truck in a crosswalk. He was also convicted of three misdemeanors for the following violations of Arkansas Code Annotated: (1) section 5–65–105 (Repl. 2005), operating a vehicle when his license was suspended for driving while intoxicated; (2) section 27–22–104 (Repl. 2014), driving a motor vehicle without proof of insurance; and (3) section 27–51–1202(a) (Repl. 2010), failing to yield to a pedestrian. On appeal, he challenges both the pretrial and in-court identifications provided by both the victim and an eyewitness. We affirm.
Smith filed motions to suppress in-court identifications and photo lineups as to both Payne Colton, an eyewitness to the accident, and Sandusky, and a pretrial hearing was held. Stan Harmon, a hit-and-run investigator with the Little Rock Police Department, testified that the reported vehicle that struck Sandusky on January 6, 2013, was a white Ford pickup. He said that Sandusky had been walking in a crosswalk, eastbound on Beechwood Street, when she was struck by the truck, and she was taken to the hospital due to her injuries. Officer Harmon became involved a week after the accident, and he said that surveillance cameras from Kroger and Junk Antiques provided video and still photographs of the white Ford pickup. However, this evidence was not initially obtained during the investigation.
Harmon said that Colton described the truck's license plate as having number “AAEF,” that it was an Arkansas tag, and that it was a military-style plate. He said that, based on that information, Officer David Phillips requested from the Arkansas Crime Information Center (ACIC) all military tags that had the series “AAEF,” thus narrowing the search to “US AAEF.” One tag with that description was retrieved, and it belonged to Steven Kissinger from Searcy, Arkansas.
Harmon explained that, at the time they began investigating Kissinger, they did not have the video evidence from the Kroger or the still photo from the antique store. He was made aware that Sandusky and Colton identified Kissinger as the driver, and an affidavit of arrest was prepared. Harmon said that Kissinger had an alibi, and after looking at the surveillance video, it was determined that Kissinger's truck was not the truck in the pictures. The charges against Kissinger were nolle prossed, and the officers continued their investigation.
Harmon said that they requested a new ACIC list for all tags in Arkansas that had the “AAEF” sequence. Only seventeen tags contained that sequence, and of those, only one belonged to a Ford F150 pickup, which had a Cattleman's Federation-style tag on it with the letters “AAEF.” This was the type of truck shown on the video, and the truck was registered to Smith.
Harmon said that Smith's photograph was placed in a photo spread and presented to both Sandusky and Colton on January 30 and 31, 2013. Harmon explained that in order to put together a photo spread, police use a database from all Arkansas drivers' licenses. He said that they try to use pictures of people with the same skin tones and as close to the same hair color and build as possible. He and Officer Phillips assembled the photo spread that was presented to the witnesses. He said that the accident report contained a description of the driver as a white male, fifty to fifty-five years of age, Caucasian, clean-cut hair, full facial hair, and possibly wearing glasses.
The officers recorded the interview of Sandusky at her home when she identified Smith after she was told that Kissinger was not the person driving the truck that had hit her. When the photo spread was presented to Sandusky, Harmon did not indicate that the suspect was in the spread, nor did he advise her that she had to pick someone from the spread. He stated that Sandusky picked Smith as the person who hit her that day, and he said that her identification was freely and voluntarily made. She told Harmon that she was positive that Smith was the person who had hit her. The next day, Colton was interviewed at the police department, and Harmon and Phillips recorded the session. Colton was shown the same photo spread shown to Sandusky, and he selected Smith. Harmon said that he did not suggest to Colton which photo to pick. He said that Colton gave a very good description of the vehicle, stating that it was a 2007 Ford F150. Harmon testified that the suspect vehicle was in fact a 2007 Ford F150. Harmon concluded that there was never a time that Smith's photo was shown to either Sandusky or Colton that they failed to identify him.
Harmon described the investigation of Smith following the positive identification by both witnesses. Smith lived on the corner of the state Capitol complex, so they obtained surveillance video for January 6, 2013, which showed a white Ford F150 truck leaving the grounds before the accident, heading west. He said that this would have put it in the Kavanaugh area at the appropriate time that the accident occurred, around 9:30 a.m. They then timed the drive from Smith's residence to the accident scene, compared it to the timestamp on the video, and discovered both took roughly eight minutes.
Smith's attorney gave police permission to look at Smith's truck on the apartment complex property. Harmon did not observe any damage on the truck, but stated that when hit at a low speed, a 100–pound woman would not always leave damage. Harmon also pulled phone records and found that the cell tower location used by Smith put him in different parts of Little Rock that day. His calls also led police to his girlfriend, Jewelette Taylor, who lived in Pleasant Valley. Taylor told Harmon that Smith tapped on her window around 10:00 a.m. on January 6, 2013, and they went to breakfast in her vehicle, then went to Smith's apartment. When they went back to her residence, Smith left in his truck and drove to Oklahoma for work. Harmon said that, at the time of the accident, Smith's license was suspended for a DWI.
Officer David Phillips testified and confirmed Harmon's testimony. He also stated that initially he had been sure that Kissinger was the driver and that Sandusky had told him that she had a frightened feeling when she saw Kissinger's picture. She had described the face of the driver as square. Phillips said that Colton was also fairly certain that Kissinger was the driver when he made the positive identification of him.
Payne Colton testified that he was twenty-one years old and a biology major at UALR. He was employed in establishments on Kavanaugh Boulevard and was sitting in his car before work when Sandusky was hit in the crosswalk. He saw her come off the front of the truck and go under the first wheel. He did not see the initial impact, as he was looking down at his phone. He heard the impact, and that was when he looked up. He saw the driver, only half of his face, and he identified Smith in the courtroom. He said that when the accident happened, Colton stayed with Sandusky until the ambulance arrived.
He remembered picking out who he thought was the driver of the vehicle on January 9, 2013. He remembered having some pressure to pick someone at the first photo spread. He said when he was presented the second photo spread later in the month, there was no pressure when he picked Smith. He also identified Smith in the courtroom.
Lois Sandusky testified that she was walking home from Leo's Greek Castle on that Sunday morning when she was struck crossing Beechwood Street. She was able to see the driver's face, and she identified Smith in the courtroom. She remembered him by making an analogy to Fred Flintstone because of the square shape of his face and large head. She picked out Smith's picture from the photo spread without pressure or suggestion from anyone.
Officer Charles Starratt was the first officer on the scene of the accident, and he testified that Colton gave him a brief description of the driver. Colton...
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