Moser v. State, CR

Decision Date07 October 1985
Docket NumberNo. CR,CR
Citation287 Ark. 105,696 S.W.2d 744
PartiesKeith Emory MOSER, Appellant, v. STATE of Arkansas, Appellee. 85-102.
CourtArkansas Supreme Court

William R. Simpson, Jr., Public Defender by Donald K. Campbell, Deputy Public Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Connie Griffin, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

The sole assignment of error in this case is that the trial court improperly admitted evidence of appellant's identification before trial. We find no error and affirm the convictions for rape, burglary, and breaking and entering.

Identification proceedings customarily involve two steps. First, the trial judge is required to examine the before-trial identification procedure so that he can rule on whether that procedure was impermissibly suggestive or unreliable in any manner. If the trial judge finds that it was not impermissibly suggestive or unreliable, the second step is taken. In the second step, the jury weighs the evidence under the instructions of the court. Both steps were taken in the case at bar, and the appellant was found guilty. He argues that the trial judge committed error in step one because the identification evidence was (1) impermissibly suggestive and (2) unreliable.

If there are suggestive elements in the before-trial identification procedure that make it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). There were no such suggestive elements in this case.

On the morning after the crimes were committed, the police asked the prosecutrix to look through a filebox of facial photographs to see if she could identify her assailant. Appellant's photograph was not in the group of pictures. The prosecutrix said that her assailant's photograph was not among those that she had examined. Four days later, according to the police, appellant's photograph was placed in a group of six photographs for the prosecutrix to examine. The prosecutrix saw the appellant's picture and told the police, "This is the man." The six pictures did not suggest the appellant as the criminal. Each picture was of a young caucasian man with dark skin, dark hair, and dark eyes. Additionally, four of the six, including appellant, had moustaches. None of the testimony suggests that the police tried to influence the prosecutrix's identification of appellant.

The appellant points out that the police description of the photospread and the prosecutrix's description are not the same because she thought she looked at twenty or twenty-five photographs on the occasion she identified the appellant's photograph. This discrepancy in the number of photographs does not indicate that the photospread was...

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4 cases
  • Matthews v. State
    • United States
    • Arkansas Supreme Court
    • June 1, 1993
    ...This procedure so undermined the reliability of the eyewitness identification as to violate due process. See also Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985); Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). The fact that the accused was the only suspect included in the second ......
  • Burnett v. State, CR
    • United States
    • Arkansas Supreme Court
    • May 14, 1990
    ...the victim will identify one person as the criminal, the procedure is so undermined that it violates due process." Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985); Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). While that statement was an obiter dictum in each of those cases, it ......
  • Bishop v. State
    • United States
    • Arkansas Supreme Court
    • September 28, 1992
    ...that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985). However, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identifi......
  • Harrison v. State
    • United States
    • Arkansas Supreme Court
    • October 7, 1985

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