Bishop v. State

Decision Date28 September 1992
Docket NumberNo. CR,CR
Citation310 Ark. 479,839 S.W.2d 6
PartiesAlbert Ray BISHOP, Appellant, v. STATE of Arkansas, Appellee. 92-440.
CourtArkansas Supreme Court

Larry W. Horton, Malvern, for appellant.

Teena L. White, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

This is an appeal from the appellant's convictions for aggravated robbery and rape. He received consecutive sentences of sixty years imprisonment on each count. Before trial, appellant made a motion to suppress the victim's in-court identification of the appellant as being tainted by the police photo lineup. After a hearing, the trial judge denied the motion. At trial, appellant also made a directed verdict motion which was denied by the trial judge. Appellant argues on appeal that the victim's trial identification of him as the rapist was tainted by a suggestive pre-trial photographic lineup. He also argues that there is insufficient evidence to support his convictions.

On September 12, 1991, the victim was raped and robbed by a man wearing a nylon stocking mask. The man had gained entrance to the victim's house while she was away, and attacked her when she returned home. The man was armed with a double-barreled shotgun. The man demanded money from the victim, and became irate when she only had $6.22. He struck her in the face with his fists and on her hip with the shotgun, and then he raped her. After raping the victim, the man stayed in the house and continued threatening the victim and looking for valuables. He discovered and took a man's diamond ring. The victim estimated that he was in her house for a total of forty-five minutes.

The victim described her attacker as being a large man, maybe 5'9"' or taller, being of a stocky or strong build and had a beard and a mustache. She said that her attacker wore dark cotton pants and a light khaki-colored shirt. The victim testified that, during the rape, the attacker was within a few inches from her face, and she focused on remembering the details of his face--shape of the face, shape of the nose, hairline, and skin tone. She stated that she noticed under the stocking mask that the attacker had a dark place about the size of a dime on his right cheek. Besides being close to her during the rape, the victim stated that the attacker stayed close to her--the length of a shotgun--while he was in the house.

The victim talked to the police the night of the attack and came to the police department the next night to view a photographic lineup. The appellant was a suspect and had been photographed wearing a light khaki shirt for the lineup. Another man in the lineup wore a similar shirt. The victim identified the appellant in the photographic lineup, and also identified him in court as the rapist.

In arguing that the photographic lineup was suggestive, the appellant focuses on the following things: 1) Before taking his picture for the photographic lineup, the police officers had the appellant put on a light khaki shirt that was recovered at his house during the arrest; 2) There was only one other person in the lineup wearing a khaki shirt like the one the victim described her attacker as wearing; and 3) During the photographic lineup, an officer told the victim "by looking at this picture it appears that he has a dark place on his cheeks."

If there are suggestive elements in the before-trial identification procedure that make it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985). However, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Moore v. State, 304 Ark. 558, 803 S.W.2d 552 (1991). Further, we do not reverse a trial court's ruling on the admissibility of an identification unless it is clearly erroneous, and we do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Id.

This court has also held that even if the identification technique used is impermissibly suggestive, testimony concerning it is admissible if the identification in question is reliable. Id. We have held that the following factors must be examined to determine reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapse between the crime and confrontation. Id.

Turning to appellant's arguments, we first consider his charge that the photographic lineup was tainted by the police having him wear his khaki-colored shirt. This court has held that a lineup is not per se unconstitutionally suggestive merely because only one person was wearing a piece of clothing similar to the one by the offender. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984). Here, as discussed above, another man besides the appellant was shown wearing a khaki-colored shirt. All six men in the lineup otherwise were similar in appearance including having mustaches and beards. The victim testified that she could easily tell from the appellant's face in the picture that he was her attacker because, while he had a nylon stocking over his face at the time of the crime, she was only six inches from him and could easily observe details of his face. She had no question in her mind concerning her identification of appellant. See Evans v. State, 310 Ark. 389, 836 S.W.2d 383 (1992).

Appellant further complains concerning an officer's statement made when the prosecutrix was viewing the photographic lineup. He said, "By looking at this picture it appears that he has a dark place on his cheeks. You look pretty close to it (sic), could have been...

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34 cases
  • Chism v. State
    • United States
    • Arkansas Supreme Court
    • 19 Abril 1993
    ...that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). However, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identific......
  • Helton v. State
    • United States
    • Arkansas Supreme Court
    • 24 Junio 1996
    ...determination that a victim's testimony alone provides substantial evidence to support a conviction of rape. See Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Furthermore, since we do not know what the outcome of the tests would have been, we cannot gauge whether DNA testing would hav......
  • Marshall v. State, CR
    • United States
    • Arkansas Supreme Court
    • 2 Mayo 1994
    ...Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992). 3. Standing to object to search Mr. Marshall argues the Trial Court err......
  • Gunter v. State
    • United States
    • Arkansas Supreme Court
    • 21 Junio 1993
    ...S.W.2d 477 (1992). In rape cases, the requirement of substantial evidence is satisfied by the rape victim's testimony. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). We have held the testimony of the victim which shows penetration is enough for conviction, and such testimony need not b......
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