King v. State
| Decision Date | 11 December 1972 |
| Docket Number | No. 5761,5761 |
| Parties | Walter Eugene KING, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Gean, Gean & Gean, Fort Smith, for appellant.
Ray Thornton, Atty. Gen. by James A. Neal, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was convicted of first degree rape and the jury assessed his punishment at life imprisonment in the state penitentiary. From the judgment on that verdict and the revocation of a 12-year suspended sentence to be served consecutively with the life sentence, the appellant brings this appeal.
Appellant first contends for reversal that the trial court erred in denying his 'motions to suppress evidence of testimony emanating from the lineup and identification made of him * * * in violation of his' constitutional rights and his 'privilege against self-incrimination and his rights to counsel.' Under these multiple contentions, appellant first makes the argument that he was not represented effectively by counsel at the lineup procedure because the appellant 'did not have present active counsel in an attorney-client relationship.' Preceding the lineup, appellant's relatives were negotiating with a local attorney about defending the appellant. This attorney was never actually retained nor did he ever talk with the appellant. However, upon being advised of the scheduled lineup, this attorney, feeling 'morally bound to protect the record from the beginning,' appeared at the lineup and successfully made certain objections and requests on behalf of the appellant with respect to the lineup. In these circumstances we find no violation of appellant's constitutional rights. Parrott v. State,246 Ark. 672, 439 S.W.2d 924 (1969). Furthermore, a person's right to counsel at a lineup procedure attaches only when adversary judicial proceedings are initiated against him. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (June 7, 1972). In the case at bar the appellant was charged by an information after the assertedly unconstitutional lineup procedure; therefore, since the lineup procedure, following appellant's arrest, preceded appellant's being formally charged with any criminal offense, the proceeding was not 'a criminal prosecution' at which he had a constitutional right to be represented by counsel. Kirby v. Illinois, supra. However, it is there recognized that the Due Process Clause of the Fifth and Fourteenth Amendments prohibits any lineup that is 'unnecessarily suggestive and conductive to irreparable mistaken identification.' Such is not demonstrated in the case at bar. As to appellant's contention about self-incrimination, suffice it to say that the mere appearance in a lineup is not a violation of the constitutional safeguard against compulsory self-incrimination. Kirby v. Illinois, supra.
Appellant's next objection to the identification procedure is with respect to Ann Jacobs, a state witness. About two weeks before the presently alleged offense, she was the victim of a rapist. She could not identify her assailant from a police mug book. Later she was offered a series of seven photographs which included two of the appellant. The pictures were marked and shuffled. As she examined the photographs she laid aside the two of the appellant and identified him as her assailant. It is appellant's argument that this procedure was impermissibly suggestive and conducive to a mistaken identity and, therefore, prejudicial. We disagree. The witness was not advised there were two pictures of the appellant among the photographs. His pictures were not in sequence in the stack. When she saw the first picture of appellant, she said '(T)his is the man.' Thereafter, at the lineup she identified the appellant as her assailant. Also, this witness made an in-court identification of the appellant based upon her independent observation at the time of the offense committed against her. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), it was said '. . . that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' See, also, United States v. Cook, 334 F.Supp. 771 (E.D.Ark.1971) and Dorsey v. State, 485 S.W.2d 569 (Tex.1972). In the case at bar we are of the view that the pretrial photographic identification was not impermissibly suggestive and did not taint the in-court identification of the appellant.
Appellant next cites 'another incident as adding to the cumulative prejudicial effect of the identification procedure * * * the parading of the appellant wearing handcuffs in front of the witness (prosecutrix), Ova Abbott, immediately prior to the lineup.' When the prosecutrix, with relatives, was sitting in the sheriff's office, appellant was brought through the office handcuffed as he was being conducted to and placed in...
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