Milholland v. State, CR
| Decision Date | 20 February 1995 |
| Docket Number | No. CR,CR |
| Citation | 319 Ark. 604,893 S.W.2d 327 |
| Parties | Bruce MILHOLLAND, Appellant, v. STATE of Arkansas, Appellee. 94-605. |
| Court | Arkansas Supreme Court |
James B. Bennett, El Dorado, for appellant.
Clint Miller Acting Dep. Atty. Gen., Brenda Stewart, Little Rock, for appellee.
This appeal is from a rape conviction and raises only one issue for review: the reliability of the identification of the appellant by the victim. We find no merit to the argument and affirm.
Appellant, Bruce Milholland, was charged with the rape of a 12 year old boy. The victim testified his attacker had taken him into some woods near a baseball park, forced him to perform oral sex, and threatened to kill him if he told anyone. The boy told his parents, and for the next two months they worked with police trying to find the attacker. The boy had given a detailed description to his father, who made a sketch from that description. The boy also viewed over 200 mug shots with the police, and accompanied his father on several occasions to view possible suspects his father had located. The victim was certain that none of those he saw was his attacker.
Two months after the attack, the father saw appellant outside an autoparts store and thought he matched his son's description. He left, picked up his wife and son, and drove back to the store. The boy identified appellant from their car. A policeman came on the scene and all four went into the store to view appellant. The victim identified appellant positively at that time and appellant was arrested. A police lineup was held a few hours later and appellant was again identified by the boy as the attacker.
Appellant filed a suppression motion, claiming the identification at the auto parts store was unreliable because the father had coerced his son into making the identification. He also argued the subsequent lineup should be suppressed. The trial court disagreed and denied the motion. Appellant was found guilty and sentenced to 40 years. Appellant appeals from that judgment.
Appellant argues it was error for the trial court to refuse to suppress testimony concerning the victim's out-of-court identifications. He makes four points in support of this argument: 1) the victim's out-of-court identification should have been suppressed based on its unreliability; 2) appellant was not represented by counsel at the police lineup; 3) there was an impermissible delay in taking appellant before a magistrate; and 4) The arrest was unlawful.
1. The victim's identification was unreliable: the appellant argued below that the identification in the auto parts store was suggestive, made under coercion from the victim's father and was otherwise unreliable. The trial court found there was no state action in the father's conduct, and, therefore, appellant was not entitled to due process guarantees prohibiting suggestive or otherwise tainted pre-trial identifications. The trial court further found that even if there were problems with the procedures, the testimony was admissible if the identification was otherwise reliable. The trial court reviewed the evidence and found it was.
Appellant does not argue the point on state action but contends that reliability is the linchpin for determining admissibility of an identification and reliability in this case was lacking.
It is for the trial court to determine if there are sufficient aspects of reliability present in an identification to permit its use as evidence. It is then for the jury to decide what weight that identification testimony should be given. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). We do not reverse a trial court's ruling on the admissibility of an identification unless it is clearly erroneous. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Id. Matters of credibility and conflicts in testimony are for the trial court and those decisions will not be disturbed on appeal.
The factors we look at when considering the reliability of an identification are stated in Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993). Those factors include and the evidence in this case provides:
(1) Opportunity to view the suspect: the victim testified the sun was starting to set at the time of the attack and he had at least 30 minutes to view his attacker. The trial court found, and we agree, that this was ample opportunity for the victim to view his attacker given the nature of the crime. The victim also testified he had previously seen appellant at a video store and had played pool with him. Previous viewings of the perpetrator, apart from observation during the offense involved, are considered independent recognitions and will strengthen a subsequent identification. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). (2) Accuracy of the description: the boy's description of appellant on the day of the attack was corroborated by a witness who had seen appellant the same day. (3) Prior misidentification: the victim had viewed over 200 mug shots and had viewed several suspects during the two months before appellant's arrest, yet he dismissed all of them with no difficulty, as not being the perpetrator. (4) Level of certainty demonstrated at confrontation: the victim's testimony was one of certainty in his identification. He testified at trial with regard to his identification of appellant at the store:
[When] I heard his voice, I knew it was his voice. I knew it was him and I said "yes." He was wearing the boots he wore the same night that it happened ... I knew it from his face and his voice and the boots.
Dad asked me twice whether that was him. He asked me once and he was looking down and that's when I said, "Wait a minute" so I could be positively sure it was him. And then he looked up and spoke and I knew it was him right then.
(5) Failure of witness to...
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...outside of Illinois which directly address the issue of whether nonidentification testimony is admissible. In Milholland v. State, 319 Ark. 604, 608, 893 S.W.2d 327, 330 (Ark.1995), the Arkansas Supreme Court held that the fact that the witness had viewed over 200 mug shots and viewed sever......
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...and, thus, failed to preserve this point for appeal. See, e.g., Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998); Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995); Van Pelt v. 306 Ark. 624, 816 S.W.2d 607 (1991). We said in Kimble that this failure to object to an in-court identi......
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