Penn v. State
| Decision Date | 17 December 1984 |
| Docket Number | No. CR,CR |
| Citation | 681 S.W.2d 307,284 Ark. 234 |
| Parties | Allen Lynn PENN, Appellant, v. STATE of Arkansas, Appellee. 84-43. |
| Court | Arkansas Supreme Court |
William R. Simpson, Jr., Public Defender by Carolyn P. Baker, Deputy Public Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Velda P. West, Asst. Atty. Gen., Little Rock, for appellee.
Allen Lynn Penn was convicted of the capital murder of Anthony Faherty, a service station and convenience store clerk, who was shot during a robbery on February 8, 1983, in Little Rock, Arkansas. The death penalty was waived by the state and Penn was sentenced to life imprisonment without parole.
Penn raises three arguments on appeal. First he makes the argument that since Arkansas' capital murder and first degree murder statutes overlap, they are unconstitutional because one charged with murder during the course of a felony can either be charged with capital murder or first degree murder, depending on the whim of the state. We explained in Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980), why the overlap was not unconstitutional under the void for vagueness doctrine. Penn also argues that the statute violates his right to equal protection. That argument was likewise rejected in Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981). It would serve no purpose to reiterate those views which we still hold.
Penn's other two arguments are virtually inseparable. He challenges the sufficiency of the evidence but concedes this argument hinges on whether we rule that his in-court identification by an eyewitness should have been suppressed. He states that the identification by Joe Bailey, a taxi driver, was inherently unreliable and therefore resulted in a denial of due process.
To understand Penn's argument a recitation of the facts leading to the identification is necessary. At about 2:30 a.m. on February 8, Joe Bailey pulled his taxi into the station where Faherty was working. He saw a man with a shotgun inside. The man turned and pointed the gun at Bailey. Bailey fled. Bailey encountered officer Valerie Staley and reported the incident. Bailey then returned to within about a half block of the scene to see what would transpire. The same morning the robbery occurred, Bailey described the gunman as being about 5'10"" or 5'11"". About four hours after the robbery, he was shown a lineup in which Penn was the second man. Bailey identified Penn and the first man as "look alikes" of the robber. The first man was 6' or 6'1"". Bailey made no positive identification.
On February 10, two days after the lineup, two detectives took Bailey to the scene. One detective stood inside the store and raised and lowered himself so that Bailey could better determine the robber's height. After that Bailey said the gunman was 5'8"" or 5'10"". On March 1 Bailey went to the police station and reported that he had recognized the gunman in the lineup but had decided to be silent because of fear of retaliation. He said after discussing it with his wife, he decided to come forward. He identified Penn as the gunman and then verified that identification by viewing a photograph of the lineup. Bailey identified Penn at trial.
Prior to trial Penn moved that the identification be suppressed. He argued then and now that the procedure on February 10 to purportedly help Bailey determine the height of the gunman more accurately was merely a pretext to eliminate the number one man in the lineup and, therefore, make Bailey more likely to identify Penn.
The trial court held an omnibus hearing to determine whether the pretrial procedures tainted the in-court identification and ruled there was no taint. That preliminary ruling is a mixed question of law and fact, and we do not reverse the ruling unless it is clearly erroneous. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). Whether an in-court identification meets constitutional standards is a question for the trial court. Banks v. State, 283 Ark. 284, 676 S.W.2d 459 (1984). Factors for determining the reliability of an in-court identification include the witness' opportunity to view the defendant, the time lapse between the crime and the identification, the level of certainty of the identification, and the accuracy of the prior description given by the witness. Banks v. State, supra. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Once the trial...
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...(1984); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980); Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977); and Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984). Appellants offer nothing in the way of new or compelling reasons why that array of case law should be overruled. That b......
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