Moore v. State, CR

• Decision Date: 18 February 1991
• Docket Number: No. CR,CR
• Citation: 803 S.W.2d 552,304 Ark. 558
• Parties: Keith Emmanuel MOORE, Appellant, v. STATE of Arkansas, Appellee. 90-199.
• Court: Arkansas Supreme Court

Page 552

803 S.W.2d 552

304 Ark. 558

Keith Emmanuel MOORE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-199.

Supreme Court of Arkansas.

Feb. 18, 1991.

Thomas Devine, III, Little Rock, for appellant.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant appeals his conviction for aggravated robbery, criminal attempt to commit murder, felon in possession of a firearm and his sentence as a habitual offender which totals 112 years imprisonment. At trial, appellant moved to suppress a photo lineup used by the victims, and the court denied his motion. The victims also made an in-court identification of appellant as their assailant. His sole issue on appeal is that the trial court erred in denying his motion to suppress the in-court identification. Appellant's argument is meritless, and we affirm.

As stated recently, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). Further, we do not reverse a trial court's ruling on the admissibility of identification evidence unless it is clearly erroneous, and do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Id. Finally, we have also held that even if the identification technique used is impermissibly suggestive, testimony concerning it is admissible if the identification in question is reliable. The following factors must be examined to determine reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the prior description; (4) the level of certainty, and (5) the time lapse between the crime and confrontation. Id.

The victims' testimony reflects no doubts that appellant was the person who pulled a gun and demanded the victims' valuables on the night of September 20, 1989. The victims, Lucky Thompson and Kelly Barbee, both related essentially the same story. They were outside in front of Lucky's house, sitting on Kelly's car, when appellant walked up and engaged them in conversation. During the conversation, appellant referred to himself as the devil's son, pulled a gun and asked for all of the victims' valuables. Appellant was about five feet from them and the street light was sufficient to distinguish appellant's face and clothes. Lucky and Kelly testified that the appellant had a mustache and wore a blue cap, a light gray sweatshirt with cut off sleeves and baggy white or khaki pants. After Lucky and Kelly failed to give the appellant their valuables, appellant backed away, pointed his gun at them, pulled its trigger about five times without its firing and then ran away. They saw appellant fire a shot in the air as he ran. Both victims agreed they observed appellant for about ten to fifteen minutes. Shortly afterwards, appellant was found in the same neighborhood by the police. In this connection, an officer testified that he...