King v. State

• Citation: 323 Ark. 558,916 S.W.2d 725
• Decision Date: 26 February 1996
• Docket Number: No. CR,CR
• Parties: Jimmy L. KING, Appellant, v. STATE of Arkansas, Appellee. 95-884.
• Court: Supreme Court of Arkansas

Page 725

916 S.W.2d 725

323 Ark. 558

Jimmy L. KING, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-884.

Supreme Court of Arkansas.

Feb. 26, 1996.

Thomas A. Potter, Texarkana, for appellant.

David R. Raupp, Asst. Attorney General, Little Rock, for appellee.

BROWN, Justice.

Appellant Jimmy L. King appeals his conviction for aggravated robbery and first-degree battery and his sentence of 60 years. He contends that the circuit court erred in refusing to suppress a photo lineup and in-court identification. We conclude that the circuit court ruled correctly, and we affirm.

On April 17, 1993, Tammy Akins, Kristine Barnette (now Templeman), Lynette Oliver, and Kelly Eaves (now Barnette) drove to Fat Jacks Oyster Bar in Texarkana to celebrate Kelly Eaves upcoming marriage. When they arrived, they parked in the last row of parking places. Eaves, who was driving, turned the car off and opened her door to get out. Akins and Barnette were in the back seat. Barnette's door was locked so she reached across Akins and opened her door, while Akins was rummaging through her purse. As the door opened, a man leaned into the car and said, "Give me all your money." Akins responded sharply that the man was not getting her money. The man then put a gun to her chest, and Akins kicked him in the stomach. The man leaned back into the car, shot her, and fled.

Eaves started the car, drove to an E-Z Mart down the street, and called the Texarkana Police Department. Akins did not realize that she had been shot until about an hour later when she began breathing irregularly and was rushed to the hospital. The bullet had pierced her stomach twice before becoming embedded in a mass of muscle.

On April 18, 1993, the day after the shooting, Sergeant Mike Mauldin of the Texarkana Police Department conducted a photographic lineup consisting of several sheets of pictures in which King's picture was included. These lineups were separately shown to Kelly Eaves and Kristine Barnette. Neither could make an identification. On May 11, 1993, these same photographs were shown to the victim, Tammy Akins. She, too, was unable to make an identification.

On May 25, 1993, Tammy Akins was shown a second photo lineup of six photographs, where a different, more recent picture of King was included. All six men photographed had some facial hair. King was the only person included in both lineups. This time Akins tentatively identified King as the person who shot her. This same photo lineup was shown to Kristine Barnette on May 28, 1993, and Barnette positively identified King as the perpetrator.

Based on these identifications, King was charged with aggravated robbery and first degree battery. Prior to trial, King moved to have the photo lineups, as well as any subsequent in-court identification, suppressed on the basis that the pretrial lineups were unduly suggestive. Both motions were denied. At trial, Tammy Akins and Kristine Barnette positively identified King as the offender. King was ultimately convicted by a jury on both counts and sentenced to sixty years imprisonment.

King urges on appeal that the circuit court erred in denying his motion to suppress the pretrial identifications and the in-court identifications by Tammy Akins and Kristine Barnette. He contends that the identifications should have been suppressed because the pretrial identification procedure was unduly suggestive and tainted the later in-court identifications. He then argues that the identifications should have been excluded because they lacked sufficient indicia of reliability. Neither argument has merit.

A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). But even when the process is suggestive, the circuit court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be decided by the jury. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Monk v. State, supra; Bishop v. State, supra. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988); see also Neil v. Biggers, supra.

King contends that the pretrial photo lineups were unduly suggestive because his photograph was the only one that appeared in two separate lineups, thus suggesting his identification and...