Cook v. State, CR
| Decision Date | 17 September 1984 |
| Docket Number | No. CR,CR |
| Citation | 675 S.W.2d 366,283 Ark. 246 |
| Parties | James R. COOK, Appellant, v. STATE of Arkansas, Appellee. 84-63. |
| Court | Arkansas Supreme Court |
William R. Simpson, Jr., Public Defender by Carolyn P. Baker, Deputy Public Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Jackie Gillean, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was convicted of the aggravated robbery and kidnapping of Colleen Butler in Little Rock on July 10, 1983. Appellant was sentenced as a habitual offender to life imprisonment for the aggravated robbery and thirty years for the kidnapping. We affirm. Jurisdiction is in this court under Rule 29(1)(b).
Appellant's first contention is that the identification procedures violated the Due Process Clause of the Fourteenth Amendment. There is no merit in the argument. There were two procedural steps involved in the ruling on the identification evidence. First, prior to trial, the judge examined the out-of-court identification to see if there were suggestive elements which made it all but inevitable that the victim would identify appellant as the perpetrator of the crime. This preliminary ruling is a ruling on a mixed question of law and fact and consequently we do not reverse the ruling unless it is clearly erroneous. Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). The second procedural step is the in-court identification.
The out-of-court identification at issue in this case was a lineup identification. The lineup consisted of six white males dressed in orange jumpsuits. The four in the middle were of a similar height and weight while the two on the end were taller and heavier. Counsel for appellant was present and, after objecting to the two taller men, noted that the lineup was physically fair.
Factors to be considered in testing the reliability of a lineup identification are set out in both federal and state law. See Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981); and Glover v. State, supra, 276 Ark. at 256, 633 S.W.2d at 708. These factors include the opportunity of the victim to observe the crime and its perpetrator; the lapse of time between the crime and the lineup; discrepancies between descriptions given the police and the defendant's true physical characteristics; the occurrence of pretrial misidentification; the certainty of the witness in identifying the accused; and the totality of the facts and circumstances regarding the identification. Glover v. State, supra.
The lineup in this case was conducted only three days after the crimes. The crimes occurred in broad daylight. The victim had ample opportunity to observe the perpetrator. As she started the engine of her parked car, a man stuck a gun in her face and told her if she screamed he would kill her. He forced her to drive him from Adams Field to downtown Little Rock. She observed his face in the rear view mirror for the fifteen to twenty minutes it took for the trip. The victim described the perpetrator as a dark complected caucasian, six feet tall, slender, with gray hair. She said that he wore glasses and a gray suit with a red plaid. The victim identified the appellant in a non-suggestive lineup, then identified him at the suppression hearing and later again identified him in court.
Although the victim described the perpetrator of the crimes as being six feet tall and appellant is only five and one-half feet tall, the description in other respects fits the appellant. The fact that she misjudged his height is easily understood. She was already seated in her car when he put the pistol to her face and he subsequently was seated behind her for the entire trip. When he got out of the car he told her not to look back. Under these circumstances we cannot find that the trial judge's ruling was clearly erroneous in allowing the identification evidence, even though the victim was mistaken in appellant's height.
Appellant's second point of appeal is that the trial court unduly restrained his closing argument. A trial court has wide discretion in...
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...appeal entirely. Whether a photographic line-up is unconstitutionally suggestive is a mixed question of law and fact. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). Whether the good-faith exception is applicable is a mixed question of law and fact. State v. Hart, 329 Ark. 582, 952 S.W.......
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