Sims v. State

• Citation: 258 Ark. 940,530 S.W.2d 182
• Decision Date: 08 December 1975
• Docket Number: No. CR75--85,CR75--85
• Parties: Danny Jerome SIMS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

Page 182

530 S.W.2d 182

258 Ark. 940

Danny Jerome SIMS, Appellant, v. STATE of Arkansas, Appellee.

No. CR75--85.

Supreme Court of Arkansas.

Dec. 8, 1975.

Bill E. Ross, Public Defender, Blytheville, for appellant.

Jim Guy Tucker, Atty. Gen., by Terry Kirkpatrick, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant Sims was tried and found guilty of murder of Mrs. Hazel Elmore in the perpetration of an armed robbery and sentenced to life imprisonment. We find it necessary to reverse that sentence and judgment upon appellant's first ground for reversal, viz:

CONSTITUTIONAL RIGHTS OF APPELLANT WERE VIOLATED IN THAT APPOINTED COUNSEL FOR APPELLANT WAS NOT NOTIFIED OF A PRETRIAL LINE-UP HELD ONE WEEK PRIOR TO THE TRIAL.

The record indicates that Charles Banks, as public defender, was appointed to represent Sims as early as March, 1974. His trial commenced on October 21, 1974. Clay Elmore, the husband of Mrs. Hazel Elmore, was also a victim of the robbery during which his wife was killed. The robbery took place on March 31, 1973, at Elmore's service station just off the Highway 140 exit from Interstate Highway 55 near Osceola. He was found wounded and bleeding, lying along the roadside approximately 175 feet from his station, yelling for help. He was taken to the emergency room at Osceola Hospital and arrived there about midnight. Officer Garland Bobo of the Osceola Police Department was on duty there and saw Elmore come to the door of the emergency room crying in a loud, terrified voice that he had been shot. Bobo observed that Elmore had been wounded in his left shoulder and hand by gunfire. He said that Elmore appeared to be in shock. After emergency treatment Bobo rode in an ambulance in which Elmore was transported to a Memphis hospital. Bobo returned about 3:00 a.m. and made a check on certain things, as he had been requested to do so by Elmore, who gave Bobo the keys to the station.

While at the hospital, Elmore first told Bobo two black males were the robbers and later said there were three. He was unable to give any other description that night. Bobo also testified that en route to the Memphis hospital Elmore gave him a description of three categories of Chevrolet automobile used by the robbers. According to Bobo, Elmore said the car in which the robbers left was a small new two-tone Chevrolet but gave three different colors. Bobo mentioned the colors blue and black in his testimony but said that he might have recorded them as green and black. Bobo said that at this time Elmore seemed to be in a daze, with consciousness coming and going.

Lt. Moore, Criminal Investigator for the Osceola Police Department, said that he was aware that three black males named Myron Franklin, Robert Earl Richmond and Otis Franklin had been arrested on the morning of Sunday, April 1 on Elmore's description of the automobile. These three, who were apprehended as they approached Osceola from the Interestate Highway, were photographed and fingerprinted while they were in custody for about an hour and a half. Moore took a stack of photographs which included photographs of these three persons to the hospital in Memphis later in the week and showed all of them to Elmore, who picked out the photographs of these three. Moore said that Elmore was under medication and in no condition to give further information. He stated that it was evident that Elmore was not coherent or mentally alert at the time.

When Clay Elmore was called as a witness, Banks requested an in camera hearing, saying that he anticipated that Elmore would be asked to identify appellant. Banks sought the hearing in order to explore the facts pertaining to a lineup identification of Sims by Elmore at the jail in Osceola during the week preceding the trial, in the absence of Banks. The prosecuting attorney candidly admitted that the lineup was held and that Elmore had then positively identified Sims as one of the three persons who participated in the robbery and murder of Mrs. Elmore. The prosecuting attorney stated that he did not propose to make any mention of the lineup, because Elmore had said that he could identify Sims upon the basis of the opportunity to observe him during the commission of the crime, and not from viewing him in the lineup. ¹ He further explained that the lineup was for the state's benefit in order to determine whether Elmore could positively and without doubt identify Sims as one of those guilty of the crime. The trial judge suppressed any and all facts, circumstances and statements pertaining to the lineup, but held that the state would be permitted to call Elmore for the purpose of identifying Sims, if he could, even though nothing could be said about a lineup. The court also expressly gave defense counsel permission to go into the matter during this testimony.

On direct examination, Elmore positively identified Sims, saying that he first saw appellant standing in the door of the service station with a rifle in his hand. He related the story of the brutal murder of his wife in the men's restroom, saying that Sims stood at least three feet away in the door with his rifle, while another robber shot her twice with a pistol. A third shot wounded Elmore. Elmore said that the whole episode covered a period of about four minutes.

On cross-examination, Elmore admitted that his testimony was highly emotional, as might be expected. Elmore said he had gone to Blytheville to see Sims in the jail there, because he just wanted to look at him, but the sheriff would not permit him to do so. He admitted having been present when Sims was arraigned at the preceding term of court. When asked to describe Sims without looking at him, Elmore said that he did not measure the defendant to see how tall he was and didn't know how much he weighed. He said that at the time of the robbery Sims' hair 'bushed out' more than it did in the courtroom. He could not describe the clothing worn at the time of the robbery by the man he said was Sims. He admitted having seen Sims a few days previously in court and when, on another occasion, a sheriff's officer had brought Sims to the lobby of the courthouse for a drink of water, as well as on the occasion of the lineup. Elmore said that all those in the lineup were dressed alike and wore white shirts. Although he said he only wore glasses when making out credit cards, he put them on when he viewed Sims in the lineup at the jail, because he had to look through two 'bunches' of wire and wanted to be sure. He also stated that when he saw Sims, he did not look at the four other persons in the lineup. Elmore testified that he did not remember being shown any photographs the evening of April 7 at the hospital in Memphis, saying that he was 'doped up' at the time. Elmore said that the whole robbery episode occurred 'pretty fast' and that his back was toward the robbers when he and his wife were taken to the bathroom where she was killed and he was shot.

No testimony about the composition of the lineup or what occurred at that time except that of Elmore appears in the record. It is clear that Banks had been appointed as appellant's attorney at that time but was neither present nor notified. At the conclusion of the state's evidence, appellant moved for a directed verdict because there was no evidence to connect him with the crime other than Elmore's identification.

The Attorney General candidly admits that appellant and his attorney should have been notified of the lineup and the attorney given an opportunity to be present in order to meet the constitutional requirements set out in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. He also agrees that when a lineup is conducted without the presence of accused's counsel, the State must establish by clear and convincing evidence that the subsequent courtroom identification by a witness who identified the accused in such a lineup was based upon independent observation rather than upon the constitutionally infirm lineup procedure. Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885; United States v. Wade, supra. On this point, the state relies entirely upon the argument that there was clear and convincing evidence that Elmore's courtroom testimony was not tainted by the lineup.

This question has troubled us considerably. We recognize that the circuit judge had an advantage this court does not, because of his opportunity to observe the witness and his courtroom identification. If only a simple preponderance of the evidence was sufficient to establish that Elmore's courtroom identification was not tainted, we might well hold with the state in this case. We might have to rely upon the trial judge's findings because we could not say they were clearly against the preponderance of the evidence. But when we look to the Wade tests, we cannot say that the requirements of Wade recognized in Montgomery were met on the record before us, particularly in view of the fact that the only real issue in the case, i.e., identification of Sims, turned upon this testimony alone, as appellant's attorney aptly pointed out in the trial court. It is also significant that here, as in Wade, the lineup was conducted to 'crystallize the (witness') identification of the defendant for future reference.' In Wade, some factors to be considered in determining whether the identification was tainted were enumerated as examples. Among them were:

1. Prior opportunity to observe the criminal act.

2. The existence of any discrepancies between any pre-lineup description and the defendant's actual description.

3. Any pre-lineup identification of another person.

4. Lapse of time between the alleged act and the lineup identification.

5. Facts disclosed concerning the conduct of the lineup.

The opportunity of Elmore to observe the robber he said was Sims was probably sufficient, although it was subject to some...