Glover v. State
| Decision Date | 01 June 1982 |
| Docket Number | No. CR,CR |
| Citation | 276 Ark. 253,633 S.W.2d 706 |
| Parties | Keith Michael GLOVER, Appellant, v. STATE of Arkansas, Appellee. 82-5. |
| Court | Arkansas Supreme Court |
William R. Simpson, Jr., Pulaski County Public Defender by Richard E. Holiman, Deputy Public Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was convicted of aggravated robbery and theft for the March 13, 1980 robbery of the McDonald's restaurant at 5000 West Markham in Little Rock. For the aggravated robbery he was sentenced to 40 years imprisonment and was assessed a $5,000.00 fine and for the theft he was sentenced to 10 years imprisonment and was assessed a $5,000.00 fine. Jurisdiction is in this court under Rule 29(1)(b). The sole designated point for reversal is whether the trial court committed error in admitting identification evidence from a pre-arrest lineup. We affirm the trial court.
The evidence established that appellant and an accomplice forced their way into the restaurant after closing hours while two employees were cleaning the interior of the building. They forced one of the employees to call a night manager, who had a key to open the safe, and tricked him into driving to the restaurant. The aggravated robbery and theft then occurred. Appellant and the accomplice were clearly observed by the employees for approximately 25 minutes. The police report described one of the robbers, who was later identified as appellant, as a white male, being twenty-five years old, standing six feet two inches tall, weighing one hundred sixty-five pounds, having blue eyes and light brown hair, being clean shaven and identifying in detail his clothing. Five days after the robbery appellant was placed in a pre-arrest lineup and was positively identified by two of the employees.
The appellant questions the validity of the identification procedure. There are usually two procedural steps involving identification evidence. First, the trial judge examines the procedure used at the lineup to determine if the evidence is admissible. Second, after the evidence has been ruled admissible, the jury weighs the reliability of the identification evidence under the instructions of the court. The appellant contends that the trial judge committed error in the first step and should not have admitted the identification evidence because it was (1) impermissibly suggestive and (2) was not relevant. We affirm the trial court.
The Supreme Court of the United States has ruled that a state criminal court is not required by the Due Process Clause of the Fourteenth Amendment to conduct a hearing out of the jury's presence whenever a defendant contends that a witness' identification was arrived at improperly. Watkins v. Sanders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981). Even though such a procedure is not constitutionally required we emphasize the prudence of such a hearing especially when, as here, the defendant has filed a motion to suppress. See Wright v. State, 258 Ark. 651, 528 S.W.2d 905 (1975).
At a hearing on a motion to suppress the trial judge must first determine the reliability of identification. The judge must look to the totality of the circumstances to see if there is a likelihood of misidentification. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). If there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the criminal, then the procedure is so undermined it violates due process. Foster v. California, 294 U.S. 440 (1969). It is the reliability of the evidence that is the linchpin in determining its admissibility. Matthews v. State, 275 Ark. 1, 627 S.W.2d 20 (1982). We do not reverse a trial judge's ruling on the admissibility of identification evidence unless it is clearly erroneous because it is a ruling on a mixed question of law and fact. Beed v. State, supra.
We have articulated several factors to be considered in assessing reliability. They include: prior opportunity of the victims to...
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Matthews v. State
...the eyewitness identification as to violate due process. See also Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985); Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). The fact that the accused was the only suspect included in the second lineup who had been in the first was only one it......
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Kellensworth v. State, CR
...of identification evidence unless it is clearly erroneous as it is a ruling on a mixed question of law and fact. Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). We cannot say the trial judge was clearly in error in this case. On the totality of the circumstances the lineups were suffi......
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Burnett v. State, CR
...the procedure is so undermined that it violates due process." Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985); Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). While that statement was an obiter dictum in each of those cases, it was the holding of the Foster case, and if it has any......
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Jones v. State
...the facts and circumstances regarding the identification. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984), citing Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). In this case the lineup was conducted within two days of the crime; the crime occurred under circumstances in which the ......