Prowell v. State, CR95-1007

• Decision Date: 06 May 1996
• Docket Number: No. CR95-1007,CR95-1007
• Citation: 324 Ark. 335,921 S.W.2d 585
• Parties: Marco Kodell PROWELL, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 585

921 S.W.2d 585

324 Ark. 335

Marco Kodell PROWELL, Appellant, v. STATE of Arkansas, Appellee.

No. CR95-1007.

Supreme Court of Arkansas.

May 6, 1996.

William A. McLean, No. Little Rock, for Appellant.

Clint Miller, Dep. Atty. General, Little Rock, for Appellee.

ROAF, Justice.

Appellant Marco Kodell Prowell appeals his conviction of capital murder and aggravated robbery and sentence of life imprisonment without parole. Prowell challenges the sufficiency of the evidence and the trial court's failure to suppress identification testimony and to grant his objection to the state's peremptory strikes based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm.

At approximately 8:00 p.m. on March 25, 1994, two men entered Andre's Cuisine in the Hillcrest area of Little Rock. One of the men approached Andre Simon, the owner of the restaurant, and pulled a gun. Simon and the assailant struggled; Simon was knocked to the floor and shot in the back. After shooting Simon, the assailant turned towards Richard Wilson, the manager of the restaurant, and demanded that he open the safe. Wilson opened the safe and handed him a bag containing about $400.00; the two men then fled the restaurant. Simon died as a result of the gunshot wound.

At trial, Richard Wilson identified appellant Marco Prowell as the person who shot Simon. Bill Byrd, a patron of the restaurant, identified Prowell as one of the men who entered the restaurant. Jeff Gilger, also a patron of the restaurant, testified that he saw Prowell enter the restaurant shortly before Simon was shot, but he did not see a gun.

1. Sufficiency of the evidence

Prowell first contends that because of overly suggestive pretrial identification procedures and the unreliable nature of the identification by Richard Wilson, his motions to suppress Wilson's in-court identification and for a directed verdict should have been granted. Prowell submits that the motion for directed verdict should have been granted because, without the erroneously admitted identification testimony, the evidence was insufficient to sustain his conviction. Although Prowell combines his challenge to the sufficiency of the evidence with his challenge to the pretrial identification procedures, the preservation of an appellant's right to freedom from double jeopardy requires that we review the sufficiency of the evidence prior to examining trial error. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Consequently, we address Prowell's challenge to the sufficiency of the evidence prior to considering his other assignments of trial error. In determining the sufficiency question, we disregard any alleged trial errors. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994).

On appeal, we determine whether the evidence in support of the verdict is substantial. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Young v. State, supra. In a criminal case, we review the evidence in the light most favorable to the state, and consider only that evidence which supports the guilty verdict. Id. In the instant case, Robert Wilson identified Prowell as the assailant who shot Andre Simon. His credibility is for a jury, not an appellate court, to determine. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Further, the uncorroborated testimony of one state's witness is sufficient to sustain a conviction. Galvin v. State, 323 Ark. 125, 912 S.W.2d 932 (1996); Gray v. State, 318 Ark. 601, 888 S.W.2d 302 (1994). Thus, the evidence is sufficient to sustain Prowell's conviction.

2. Suppression of identification testimony

Prowell also asserts that the trial court erred in failing to suppress the in-court identification by Richard Wilson. Prior to trial, Prowell moved to suppress all identification testimony. He contended that both pretrial and in-court identifications should be suppressed because the pretrial photographic lineup procedures were suggestive and would taint and render unreliable any subsequent in-court identification.

We will not reverse a trial court's ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995); Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995); Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993). In determining whether an in-court identification is admissible, we look first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect; it is the appellant's burden to show that the pretrial identification procedure was suspect. Mills, supra; Hayes, supra.

A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996); Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995). Even when the process is impermissibly suggestive, the trial court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be submitted to the jury, and then it is for the jury to decide the weight the identification testimony should be given. King, supra; Chenowith, supra. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. King, supra; Mills, supra.

In Prowell's case, the trial court conducted a suppression hearing to determine the admissibility of Richard Wilson's identification testimony. The following evidence was presented at this hearing. On the evening of the incident, March 25, 1994, Wilson provided a statement to the police in which he described the person who shot Simon as a black man, about 185 or 190 pounds, clad in a jacket and oversized clothes which made him appear overweight. He stated that the second assailant was heavier than the gunman.

On March 27, 1994, Wilson viewed a photographic lineup of six individuals. Prowell's photograph was not included. He picked one of the individuals as a "look-alike" of the person who shot Simon. At approximately 1:50 a.m. on March 31, Wilson again went to the police station to view a photographic lineup which included a picture of Prowell. Wilson testified that he was disoriented that night because he had not slept in four or five days. Wilson did not select anyone from this lineup.

At approximately 3:22 p.m. on March 31, Wilson viewed another photographic lineup which included the picture of Prowell. He picked one of the men as a look-alike of the second assailant--not the person who shot Simon.

Wilson viewed a final photographic lineup on April 8, 1994. However, he testified that prior to the April 8 lineup, he saw a newspaper photograph of Prowell and two other men all clad in orange suits; they were identified as involved in the Simon shooting. Wilson testified that he recognized Prowell in this photograph as the person who shot Simon. He did not notify the police that he had seen the gunman's picture in the newspaper until he arrived at the police station on April 8.

On April 8, Wilson viewed the same photographs shown to him on March 31. Wilson selected the photograph of Prowell, but he stated that he "thought the picture didn't look like Mr. Prowell" and that the newspaper picture of Prowell was significantly different. Wilson testified that the newspaper picture was a full body shot, while the police photograph showed an individual looking directly into the camera with a dazed expression, and that the light in the police photograph "washed the face out."

We cannot say that it was all but inevitable that Wilson would identify Prowell because of the newspaper photograph. See King v. State, supra. A suspect was identified under similar circumstances in Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). There, the witness was present at the police station and saw Van Pelt as he arrived in custody. We noted that there was no evidence suggesting that the police brought Van Pelt to the station to facilitate an identification. The witness made his initial identification spontaneously and before Van Pelt was taken inside the building; the witness could not have known for certain that Van Pelt was even the suspect in the crime. In the instant case, there is also no suggestion that the police were involved in any way with Wilson's viewing of the newspaper photographs. Further, although three men were depicted in the newspaper photograph as suspects in the Simon shooting, Wilson specifically identified Prowell as the one who shot Simon.

Even assuming the pretrial identification procedure was impermissibly suggestive, Wilson's identification was sufficiently reliable. See Chenowith, supra. Wilson testified that he viewed the person who shot Simon for approximately forty-five seconds during the incident and that he was within a few feet of the assailant at the time of the shooting. The shooter was within approximately two feet when he held the gun on Wilson. Although there was some confusion about which of the two assailants was heavier, Wilson informed the police that the gunman weighed 185 or 190 pounds; according to the arrest records, Prowell weighs one-hundred and sixty pounds.

Wilson never identified any other person as the individual who shot Simon. He advised the police that if he saw the person who shot Simon, he could identify...