Burnett v. State, CR

• Decision Date: 14 May 1990
• Docket Number: No. CR,CR
• Citation: 790 S.W.2d 137,302 Ark. 279
• Parties: Robert Lee BURNETT, Appellant, v. STATE of Arkansas, Appellee. 89-220.
• Court: Arkansas Supreme Court

Page 137

790 S.W.2d 137

302 Ark. 279

Robert Lee BURNETT, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-220.

Supreme Court of Arkansas.

May 14, 1990.

Anthony Sherman, Paul James, Little Rock, for appellant.

Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Robert Lee Burnett was convicted of the beating and stabbing death of Rhonda Dobson, a Brinkley, Arkansas convenience store clerk. Satisfied that an impartial jury could not be impanelled in Monroe County, the trial court granted a change of venue to Cross County, where Burnett was tried, convicted and sentenced to death. Evidence introduced by the state included a confession Burnett gave to the police shortly after his arrest, and the identification of Burnett by a customer, Ms. Barbara Kuykendall (now Mrs. Short), ¹ as the man she saw run from the store immediately after the murder.

Burnett appealed, insisting he was seized at his home in violation of the Fourth Amendment and that evidence obtained as a result of his seizure should not have been used against him. We reversed his conviction, upholding his contention that the confession and the lineup identification were acquired in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States. Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988). While we held the lineup was not suggestive, we could not determine whether the in-court identification of Burnett by Ms. Kuykendall was dependent on the lineup and, hence, unreliable. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

On remand the trial court was instructed to conduct a pretrial hearing to determine whether the courtroom identification of Burnett was tainted by his illegal seizure. Wright v. State, 258 Ark. 651, 528 S.W.2d 905 (1979). That was done and the trial court allowed the courtroom identification by Mrs. Short. Robert Lee Burnett has again appealed from his conviction and life sentence without parole. His single argument for reversal is that the trial court erred in failing to suppress his identification as clearly tainted by the lineup procedures. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We affirm the judgment and sentence appealed from.

At the suppression hearing following remand, Mrs. Short testified that at about 3:30 a.m. on July 10, 1986, she was seated in a pickup truck parked at the gas pumps of the convenience store. She was about twenty-five feet away from the entrance. She said a man suddenly emerged and ran from the store, jumped a nearby fence and disappeared. She described him as black, about 5'4" tall, wearing shorts or "cut-offs" and no shirt. He was "pretty slim" and the lower part of his face was thin, with a pointed chin. She identified Robert Burnett as the man she had seen. Robert Burnett did not testify at the hearing or at the trial. We are asked to overrule the trial court's denial of the motion to supress Mrs. Short's courtroom identification of Robert Lee Burnett as the man who ran from the shop. For reasons to be stated we decline that request.

While we held in Burnett I that the lineup itself was not unduly suggestive, we left open the question of whether Mrs. Short's identification of Burnett before the jury on retrial was reliably based on her observations at the convenience store or her observations of him at the lineup, admittedly an inexact analysis.

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court listed a number of factors to be considered in determining whether the means by which witnesses may have acquired their observations or information are sufficiently distinguishable as to be purged from the taint of an earlier illegality. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). The conclusion to be drawn from those and other relevant factors is dependent on the totality of the circumstances and even though prior identification may have been improper or suggestive, an in-court identification will not be suppressed if indicia of reliability are found to independently exist. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

The factors mentioned in United States v. Wade, supra, include the following: the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, the lapse of time between the alleged act and the lineup identification. United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1939. A factor noted in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), is the degree of certainty which a witness professes to possess that the perpetrator and the defendant are the same individual.

We have applied those and other relevant factors frequently since Wade was decided: See, e.g., Maulding v. State, 296 Ark. 328 757 S.W.2d 916 (1988); Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987); Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984); Hogan v. State, 280 Ark. 287, 657 S.W.2d 534 (1983).

Applying those factors to the instant case we note that Mrs. Short testified that she and the perpetrator looked directly at each other when he emerged from the store, that the lighting was good and there was nothing to obstruct her view. Moreover, her attention was heightened by the fact that she knew from his manner that "something was wrong." She watched the man run to an adjacent fence and jump over it. She described him to the police as 5'4"' or 5'5"' and compared it to her own height of 5'3"'. She said he wore shorts of some kind, was shirtless and barefooted. His left hand was inserted inside a white sock and in his right hand he grasped a brown paper sack. ² Mrs. Short said the man was "pretty slim," with a thin face and a pointed chin. It was this latter facial characteristic that Mrs. Short found most distinctive. Finally, she professed to entertain "no doubt at all" that Robert Burnett was the man she saw running from the convenience store.

The trial court evidently found Mrs. Short to be a credible witness and we take no exception. She did not hesitate to decline to supply information she did not possess or could not recall and readily admitted testimony from the previous hearing which the defense elicited. Clearly, she had some uncertainty as to the height of the man she saw, but by no means would that sort of discrepancy work to suppress her identification. See Burnett I, 295 Ark. at 410, 749 S.W.2d 308.

In sum, Mrs. Short had an unobstructed, direct view of the perpetrator under well-lighted conditions. She and the man made eye contact and her attention was keyed to her awareness that something unusual had occurred inside the store. There was a lapse of only a few hours between her observations at the scene and the lineup. Her description of the man she saw was an apt description of Robert Burnett. She admitted to no uncertainty as to her identification. Thus we cannot say the finding of the trial court is clearly erroneous, nor can we find a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

We do not discount appellant's argument that Mrs. Short was permitted to observe Burnett alone before the lineup and her own acknowledgement, as appellant construes it, that her identification of Burnett was based on her observation of him at the lineup. We disagree that either point dictates reversal. As to the latter contention, Mrs. Short's cross-examination does, at least ostensibly, support the argument. But when her testimony in its entirety is read, we conclude that she did not understand the distinction the law makes between her observation of the defendant at the lineup as opposed to her avowed observation of him at the convenience store. We quote from the pertinent testimony in its entirety:

Q: Do you recall testifying at a pretrial hearing a couple of years ago?

A: Yes.

Q: Do you recall that?

A: Yes.

Q: And you were under oath, correct?

A: Yes.

Q: And you swore to tell the truth, correct?

A: Right.

Q: Do you recall a question being asked by the Prosecutor, let me ask you this, Mrs. Warren, when you identified him a moment ago for the Court, was your identification based on what you remember seeing of him coming out of the store or what you remembered from the lineup?

A: Yes.

Q: Do you remember that question?

A: Yes, I do.

Q: What was your response under oath, if you recall it?

A: I told him it was from the lineup.

Q: It was like picking him out of the lineup. Is that what you said at that pretrial hearing?

A: Yeah, because I remember his features and face.

Q: But your testimony back at pretrial a couple of years ago was you remembered him as a result of picking him out of the lineup. Correct?

A: That's right.

Q: And does that still hold true today?

A: Well, the thing that stuck in my mind about this guy--

Q: Slim face?

A: Yeah, that's correct.

While we concede the ambiguity in this brief segment of Mrs. Short's testimony, we do not concede that she intended to say that she remembered Burnett because of the lineup and not because of the earlier contact. Indeed, the question itself was artfully limited to whether she remembered Burnett "as a result of picking him out of a lineup," omitting any qualifying words such as "rather than from the crime scene." It is not surprising that a lay witness fails to understand the differentiation between the two observations which the law attempts to impose under the Wade principle. Arguably such a distinction may well be a practical impossibility. See concurring/dissenting opinion of Justice Black, United States v. Wade, 388 U.S. at 248, 87 S.Ct. at 1943. ("How...