James v. State
| Decision Date | 06 October 1980 |
| Docket Number | No. CR,CR |
| Parties | Eugene JAMES and Archie Elliott, Appellants, v. STATE of Arkansas, Appellee. 80-126. |
| Court | Arkansas Supreme Court |
E. Alvin Schay, State Appellate Public Defender by Jack Kearney, Deputy Appellate Public Defender, Little Rock, for appellants.
Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.
Appellants were convicted of aggravated robbery, and the jury sentenced each of them to 25 years in the Department of Correction. On appeal they urge: (1) the court erred in admitting evidence based upon pretrial "show up" identification; (2) the trial judge made improper remarks relating to the Arkansas parole system; (3) the conduct of the prosecuting attorney and the trial judge was prejudicial.
We do not agree with any of appellants' contentions and affirm the sentence imposed by the trial court.
The facts reveal two black males entered and robbed the Highway Liquor Store in Brinkley, Arkansas, on December 20, 1978. The robbers threatened the store manager and a young lady who was visiting in the store at the time. A handgun was used in perpetrating the crime; and, the robbers after taking the money threatened to shoot the manager and her guest if they did not stay on the floor as ordered.
During the robbery Richard Jordan entered the store while the robbery was in progress. He observed the robber's use of the handgun and heard part of the conversation. He re-entered the store after the robbers left and tried to buy a drink or a bottle of liquor, and informed the manager he knew the robbers.
The police were called; and, upon their arrival at the store, the manager told them there was an eyewitness named Jordan who could identify the robbers. The Chief of Police, George Bethell, happened to know Richard Jordan. The officers went immediately to Jordan's home and contacted him. He informed the officers he knew the robbers and stated their names were Archie Elliott and Eugene James. Within two hours of the robbery, the appellants were taken into custody. Neither the weapon nor the money was ever found.
The next day Chief Bethell took eight photographs, including those of the appellants, to the victim, Marjorie Vanderberg, to see if she could identify the robbers. She picked out the photographs of appellants and stated "they looked mighty like these two." The eight photographs were spread in a line, and the appellants' photos were on each end. According to Chief Bethell, he picked the eight photographs because they all had a similar appearance and were of similar age and size. The following day the chief called Mrs. Vanderberg to the station to see if she could identify the appellants as the robbers. They were the only two black males present in the chief's office when Mrs. Vanderberg came by and stated the two looked like the robbers.
During the trial witness Vanderberg was asked if she could identify the appellants who were in the courtroom. When she replied in the affirmative, the appellants' counsel objected on the grounds that the in-court identification was tainted by the prior out of court procedures which included the photograph display and the "show up" identification. After an in camera hearing, the court overruled the objection. Later in the trial Richard Jordan and Lena Garris both positively identified the appellants as the robbers. Lena Garris was absolutely positive in her identification of the man with the gun but not as positive to the other one. Jordan expressed no doubt about the identity of either of the appellants.
The appellants relied upon an alibi as a defense. While one of the appellants' witnesses, Geraldine Valentine, was being cross-examined by the prosecuting attorney, she was asked about her drinking habits, health, employment, and several questions relating to her receiving welfare benefits. The prosecutor dwelled upon her being physically able to work while she was receiving welfare benefits for herself and/or her children. Objections were made to this line of questioning.
During deliberation the jury returned to the courtroom and asked the judge to explain the parole system in Arkansas. The court replied:
Madam, I am not permitted to do that under the law. I don't know why because I think you ought to know, but it's against the law for me to tell you anything about the parole system. That's strange, but that's the law. I think you ought to know anything about a case, but I just can't do it.
We first consider the argument that the in-court identification was tainted by the photographs and the "show up" identification. The in-court identification will be suppressed only if the procedure was unconstitutionally defective to the extent it violated appellants' due process rights. Appellants argue the photo identification procedure was improper. As far as the photographs were concerned, it does not appear that they were unduly suggestive. According to Chief Bethell, the eight people represented in the photographs were of similar age and size and were all dressed in street clothing. We know of no rule requiring the photographs used in such procedure to be produced as exhibits as argued by appellants. There is no showing that appellants ever requested the photos be produced for inspection or brought to court. Chief Bethell testified there was nothing suggestive about them, and the witness readily identified the two without any prompting whatsoever. We do not find in the record anything which would indicate to us the photograph identification was improper.
It is the likelihood of misidentification that taints the out of court...
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