Kimble v. State, CR

• Decision Date: 22 January 1998
• Docket Number: No. CR,CR
• Citation: Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (Ark. 1998)
• Parties: Anthony Leon KIMBLE, Appellant, v. STATE of Arkansas, Appellee. 97-909.
• Court: Arkansas Supreme Court

Page 43

959 S.W.2d 43

331 Ark. 155

Anthony Leon KIMBLE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-909.

Supreme Court of Arkansas.

Jan. 22, 1998.

Darrel Blount, Hot Springs, for Appellant.

Winston Bryant, Atty. Gen., David R. Raupp, Senior Asst. Atty. Gen., Little Rock, for Appellee.

GLAZE, Justice.

Appellant Leon A. Kimble was convicted of aggravated robbery and sentenced to life imprisonment. He raises three points for reversal; all lack merit, so we affirm.

Kimble first challenges the trial court's refusal to suppress the testimony of the victim, Bob Wilhite, concerning a pretrial photographic lineup which Kimble claimed was unduly suggestive and tainted Wilhite's in-court identification of him.

Wilhite owned a restaurant in Mt. Ida where he was robbed and shot twice on September 16, 1996. After the crime (and later at trial), he described his assailant to the police as a clean-shaven, short-haired black male who had a light complexion, thin lips, and a thin, narrow nose. The perpetrator carried a weapon Wilhite believed to be a blue steel .32 automatic. Based on this description, the police uncovered two separate suspects, Kimble and a L.A. Fugate. The police initially placed Fugate's picture along with five other black males in a photo lineup and showed the lineup to Wilhite, who could not identify any one of the men as the one who shot him. After obtaining Kimble's picture, a second lineup was shown to Wilhite. This time, the lineup contained the same photos as appeared in the first lineup, but differed only by the substitution of Kimble's picture for Fugate's. Wilhite quickly identified Kimble as his assailant.

In a pretrial motion, Kimble requested that the results of the lineups be suppressed because the manner in which the police handled the photographs was unduly suggestive. ¹ After the trial court took Kimble's motion under advisement, it ultimately ruled that, although one could very seriously argue the second photo lineup was suggestive, the totality of the circumstances were such that the trial court found Wilhite's identification was sufficiently reliable for the matter to be submitted to the jury. The trial court applied applicable case law correctly.

Our court has held that, even when the identification procedure is impermissibly suggestive, the trial court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be submitted to the jury, and then it is for the jury to decide the weight the identification testimony should be given. Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996). In determining reliability, the following factors are considered:

(1) the prior opportunity of the witness to observe the alleged act;

(2) the accuracy of the prior description of the accused;

(3) any identification of another person prior to the pretrial identification procedure (4) the level of certainty demonstrated at the confrontation;

(5) the failure of the witness to identify the defendant on a prior occasion; and

(6) the lapse of time between the alleged act and the pretrial identification procedure. Id.

Here, Wilhite related that he could see Kimble "very well" when the robbery was committed. He said that he remembered the perpetrator was a black male with thin facial features and light complexion, and that his features were "pronounced and well lit." Wilhite never identified any other person as the perpetrator and added that the robber's slim facial features were easy to recognize. When shown the photo lineup with Kimble's picture, Wilhite said he was convinced Kimble was the robber. Wilhite never failed on a prior occasion to identify Kimble and only a few days had elapsed between the time of the robbery and when Wilhite selected Kimble from the lineup. Thus, Wilhite's identification and the circumstances surrounding it were reliable. Based on this evidence, we cannot say the trial court was clearly erroneous in rejecting Kimble's suppression motion.

Kimble next challenges the trial court's denial of his motion for mistrial which he made due to a statement from one of the State's witnesses concerning Kimble's prior imprisonment.

Stacy Robinson testified that, as a neighbor of Kimble's girlfriend, Katherine Lupinek, she had had a conversation with the couple in her home. When questioned by the State about the subject of that conversation, Robinson began, "... he told me that he had gotten out of prison about a year and a half ago...." Kimble immediately objected arguing that the State was intentionally attempting to elicit testimony about prior convictions, and that a mistrial was in order because the jury had been tainted by the testimony. The State responded that it was not trying to elicit testimony regarding Kimble's prior conviction, but, rather, was trying to get to the essence of the conversation between Robinson and Kimble, which would show that Kimble tried to buy a gun from Robinson, but she declined because Kimble said that he had just gotten out of prison. Also, the State revealed that Robinson's entire statement, including her reference to Kimble's prior prison record, had been disclosed during discovery proceedings. The court denied Kimble's request for relief.

Any reference to a defendant's prior conviction during the guilt phase of a criminal trial results in some prejudice to the defendant. Heard v. State, 322 Ark. 553, 560, 910 S.W.2d 663 (1995). Declaring a mistrial, however, is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Id.; see also Furlough v. State, 314 Ark. 146, 150, 861 S.W.2d 297 (1993). Here, although some prejudice resulted from Robinson's testimony, it was not so injurious as to warrant a mistrial, especially in light of the fact that no further testimony was elicited regarding Kimble's prison stay. The trial court is in a better position to determine the effect of the remark on the jury and here the court concluded the reference was insufficient to warrant a mistrial. Heard, 322 Ark. 553, 560, 910 S.W.2d 663, 667.

Furthermore, an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Id. This court has concluded that an admonition is sufficient to cure a reference a witness made to a defendant's "previous record." Id. Here, such an admonition would have been sufficient to cure any prejudice in the instant case, but Kimble never requested one. It was clearly Kimble's obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal. See Vick v....