Mayes v. State

• Decision Date: 02 October 1978
• Docket Number: No. CR78-60,CR78-60
• Citation: 264 Ark. 283,571 S.W.2d 420
• Parties: Alvin MAYES, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 420

571 S.W.2d 420

264 Ark. 283

Alvin MAYES, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-60.

Supreme Court of Arkansas, In Banc.

Oct. 2, 1978.

Raymond R. Roberts, Little Rock, for appellant.

Bill Clinton, Atty. Gen., by Joyce Williams Warren, Asst. Gen. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Alvin Mayes was found guilty of the crime of forgery in violation of Ark.Stat.Ann. § 41-2302 (Repl.1977) in a trial before the Circuit Court of Saline County, without a jury. The charge was based upon the presentation of a check to a Ms. Cash, the cashier at a check-out counter in West's Department Store in Benton. Mayes was arrested by Benton Police Officer Barnes after he had been given a description of the person presenting the check by Ms. Cash and Mr. Galion, the manager of the store. Appellant urges three points for reversal. We find it necessary to reverse the judgment because of the admission of a confession by appellant into evidence.

Among other contentions made by appellant, he argues that after he had indicated that he wanted to remain silent, the police officers having him in custody persisted in questioning him, without giving him any warnings of his constitutional rights as to self-incrimination and the assistance of counsel. The undisputed evidence sustains this argument. Officer Barnes testified that, after the arrest, he had interviewed Mayes about his possession of certain checks, among which was the one on which the charge in this case was based. Barnes stated that he had given a full explanation to Mayes of his rights under the Miranda decision and that, although Mayes had been drinking, he not only expressed an understanding of the rights statement but also exhibited an ability to understand it. He could not remember Mayes having said that he wanted to call a lawyer, but admitted that it was possible that he might have. More importantly, however, a written statement was given by Mayes at 3:38 p.m., after interrogation off and on by Barnes, following the advice given Mayes as to constitutional rights some five hours earlier. Mayes indicated when the questioning first started that he didn't want to talk to Barnes, but Barnes and other officers continued questioning him during several interviews without any further advice as to his constitutional rights. This was a clear violation of the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Webb v. State, 258 Ark. 96, 522 S.W.2d 406. The finding of the trial judge to the contrary was clearly against the preponderance of the evidence.

We must consider other points relied upon by appellant because they will probably arise on a new trial. We find no merit in appellant's contention that the trial court erred in allowing the in-court identification of him by Ms. Cash as the person who presented the check. He also objects to her having been permitted to refer to an out-of-court identification made by her. This argument is based upon the contention that her identification testimony was tainted by improper pretrial indentification procedures and that his arrest without a warrant was without probable cause.

The arresting officer was Barnes. He had come into the store in response to a report to the police department by Galion, to whom Ms. Cash had taken the check when it was presented, as she was required to do whenever a check was presented. Barnes arrived a little more than ten minutes after the report was made. Barnes testified that Ms. Cash and Mr. Galion told him that the person who presented the check was a black man wearing a dark coat and bright pink britches. As soon as Barnes heard this description, he recalled having met a black man so dressed as he entered the store. Barnes immediately left in search of this man. At the Wal-Mart parking lot about eight or ten blocks from the West store, he found Mayes, dressed according to the description given him. This occurred within five minutes after Barnes had seen the man leaving West's store. Since he wanted to be certain he had the right person before taking him to the police station, Barnes took Mayes back to the store, arriving there within ten minutes after he had made the arrest. Both witnesses viewed Mayes as he stood outside a police automobile and identified him, without hesitancy or confusion, as the man who had presented the check.

Ms. Cash's identification of Mayes in the courtroom was positive and unequivocal. She said that she had gotten a pretty good look at the face of the person who offered the check and then had an opportunity to note the clothing he wore and his size and race, adding that he was only two feet from her, across the check-out counter. She said that, when she was given the check, she observed the person who handed it to her for 15 to 30 seconds and that he remained at the counter for about two minutes. She said that, when the officers asked her to view the suspect they had in custody, she went outside the store, looked at the man from a distance of about 30 feet and that she was certain that the man she then saw was the man who had given her the check.

Appellant argues that, essentially, Ms. Cash, a white woman, only identified a black man and that, according to an article published by a psychology professor at the University of Tulsa, identification of members of one race by one of another race is particularly unreliable. He also suggests that Ms. Cash's identification testimony was further tainted because she had seen Mayes at a previous hearing. Ms. Cash positively denied that she had, on any occasion, identified Mayes simply on the basis that he was a black man and stated that she was certain of his identification at the previous hearing.

Many factors are to be considered in determining whether an in-court identification is tainted by pretrial occurrences. Among them are: the opportunity of the witness to observe the criminal act and the perpetrator of it at the time; the existence of discrepancies in pre-confrontation descriptions and the accused's actual description; any pretrial misidentification; lapse of time between the alleged criminal act and any lineup or "show-up" identification; the facts disclosed concerning a "show-up" or lineup, and the certainty of the identification of the accused by the witness. Hinton v. State, 260 Ark. 42, 537 S.W.2d 800; Sims v. State, 258 Ark. 940, 530 S.W.2d 182; Warren v. State, 261 Ark. 173, 547 S.W.2d 392; McCraw v. State, 262 Ark. 707, 561 S.W.2d 71. The central question is whether, viewing the totality of the circumstances, the courtroom identification was reliable, even if the "show-up" procedure used was unduly suggestive, and we must resolve any questions of credibility as the trial judge did. Hinton v. State, supra; McCraw v. State, supra. It is only when we can say, after viewing the totality of the circumstances pertaining to an in-court identification, that it was patently unreliable that we hold the identification inadmissible as a matter of law. Synoground v. State, 260 Ark. 756, 543 S.W.2d 935.

When we view the totality of the circumstances here, we cannot say that the trial judge erred in finding it sufficiently reliable to be admitted in evidence and the question of reliability then became one for the trier of fact. See Synoground v. State, supra. We cannot say that it did not constitute substantial evidence that Mayes was the person who presented the check.

Although we are convinced that Barnes had probable cause to arrest Mayes, this factor would not be of any importance if Ms. Cash's in-court identification was not tainted by her viewing appellant within a few minutes after that arrest. See Wright v. State, 258 Ark. 651, 528 S.W.2d 905. So we need not consider probable cause.

A more important question is raised by appellant's contention that the evidence was insufficient to support the finding that he was guilty of uttering. The reason given by appellant in stating this point is that the court had ruled as a matter of law that there was no evidence of forgery and had, according to appellant, actually acquitted appellant of the crime of forgery. This was not the exact effect of that which took place in the trial court. At the conclusion of the state's evidence, the trial judge denied appellant's motion for a verdict of acquittal, but when his attorney protested that there had not been any evidence of forgery, the judge stated that he would grant that motion. Appellant's attorney then stated: "If there is no forgery, I do not see how there could be any possession" and the judge responded: "I think uttering would be included in the charge of forgery." When appellant's attorney argued that appellant had been charged with possession, not uttering, the judge agreed with the deputy prosecuting attorney's statement that possession of a forged instrument and uttering were offenses of exactly the same grade defined exactly by the same statute in the language of one sentence, and that they were the same offense under the statute mentioned in the information filed and that it was inconceivable that appellant could have uttered something that he did not possess immediately theretofore. Appellant's attorney then asserted that the check was only a piece of paper and amounted to nothing because the check bore no signature. After some additional colloquy among the judge and counsel, the circuit judge stated that he still considered uttering as a lesser charge than forgery, explaining that he was saying that uttering was included in the offense, which had been labelled forgery. Appellant then rested, without offering any testimony, and then renewed his motion. The court then found appellant guilty of uttering an instrument and sentenced him to three years in the penitentiary.

We agree with the trial judge in principle, and, even though appellant's contentions might have been meritorious prior to the adoption of the Arkansas Criminal Code, they are not...