Tarkington v. State, 5494

• Decision Date: 21 June 1971
• Docket Number: No. 5494,5494
• Parties: Bobby Gene TARKINGTON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 93

469 S.W.2d 93

250 Ark. 972

Bobby Gene TARKINGTON, Appellant, v. STATE of Arkansas, Appellee.

No. 5494.

Supreme Court of Arkansas.

June 21, 1971.

Rehearing Denied Aug. 9, 1971.

Guy Jones, Phil Stratton and Guy Jones, Jr., Conway, for appellant.

Ray Thornton, Atty. Gen. Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant states 15 points for reversal of his conviction of the crime of rape. He argues them in four groups and relies upon those arguments to support his first three points, which are not otherwise covered.

Appellant first asserts that his conviction was based upon prejudice, bias, speculation, conjecture, surmises and irrelevant and impeached testimony. This argument is based upon attacks on the credibility of the prosecutrix. He contends that her testimony is the only incriminating evidence against him. He points out that his accuser made no outcry, gave no notice to her neighbors in a thickly populated district in the city of North Little Rock, made a positive identification of a ring and a knife which she said appellant had in his possession at the time of the alleged attack without any reason for her certainty, or means of distinguishing them from thousands of other such objects similar in appearance, and varied her testimony at different times as to the hour and minute of the alleged crime and her state of dress when it occurred. This witness was positive in her identification of appellant, but he says that the jury could not have properly based its verdict upon her testimony, because it should be considered as incredible.

Appellant concedes that corroboration of prosecuting witness is not essential to a conviction of the crime of rape. Lacy v State, 240 Ark. 84, 398 S.W.2d 508. Where the prosecuting witness is positive in her identification, the question of her credibility is for the jury. Hamm v. State, 214 Ark. 171, 214 S.W.2d 917. Prosecutrix, who said that she was then 15 years old, testified that she attempted to scream, but 'nothing would come out.' She also said that appellant, who had pulled a knife on her, told her that he would not kill her if she cooperated, but if she said anything he would kill her. Failure of the prosecutrix to make an outcry or to make prompt complaint is properly considered when the defense is based upon her consent or want of resistance or upon the contention that a rape was not committed by someone. Kurck v. State, 235 Ark. 688, 362 S.W.2d 713, cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412; Daniels v. State, 186 Ark. 255, 53 S.W.2d 231; Jackson v. State, 92 Ark. 71, 122 S.W. 101. Even then the failure to make an outcry is excused if prevented by fear of the prosecutrix for her life or bodily safety. Pemberton v. State, 221 Ark. 19, 251 S.W.2d 825; Zinn and Cheney v. State, 135 Ark. 342, 205 S.W. 704. But no such defense was made, and the prosecutrix testified that she did not make an outcry because of her assailant's threats. The prosecutrix and her husband had only lived at the apartment where the offense took place for three weeks. She testified that she told an elderly lady across the street what had happened when she found that she was unable to reach her husband by telephone because it was out of order. She then went by cab to the place her husband was in school and reported the incident to him. Questions of identification and alibi (the defense made by appellant) were jury questions. Hamm v. State, supra; Lacy v. State, supra. Resolution of conflicts in the testimony of the prosecutrix was also a jury function. Marshall v. State, 250 Ark. ---, 466 S.W.2d 920 (May 3, 1971).

The next group of points argued by appellant turns upon his argument that a lineup identification, when he was without the assistance of counsel, violated his constitutional rights. Appellant was charged with having committed the crime on January 17, 1967, and the lineup in question was held on January 24, 1967, so the decisions 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, both decided June 12, 1967, do not apply. Stovall v. Denno, 338 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Appellant contends, however, that the identification procedures at the lineup, when judged by the totality of the circumstances, were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law, relying upon Foster. Appellant also contends that his testimony about the lineup identification was more persuasive that that of the arresting officer. The determination of persuasiveness of the testimony on this point is a matter in which we must give substantial weight to the circuit judge's superior opportunity to evaluate credibility. See Jackson v. State, 249 Ark. ---, 460 S.W.2d 319 (December 14, 1970).

The circumstances here are entirely different from those in Foster, however. Sergeant Bruce of the North Little Rock Police Department picked Tarkington up off the streets, from a description given by the prosecutrix and a radio report that a man fitting that description was in the area. Another suspect had been previously picked up from this description, but the prosecuting witness failed to make an identification in a lineup in which he was placed, so he was released. According to Bruce, he placed Tarkington and three other persons in a lineup to be viewed by the prosecutrix at policy headquarters. None of the others resembled Tarkington except that one of them was near Tarkington's weight and size. Tarkington said he was in the lineup about 10 minutes. Mrs. Jones testified that as soon as she looked at Tarkington, she said, 'that's the man.' Her immediate identification of Tarkington was corroborated by Bruce.

The essential elements making the lineup identification a denial of due process in Foster are lacking here. Foster was at least six inches taller than both of the other persons in that lineup. He wore a jacket similar to one which the victim of the crime described as worn by the person who robbed him. The victim there could not positively identify Foster. Even after a face-to-face confrontation across a table in the absence of anyone else except prosecuting officials, the witness was unsure whether Foster was one of the robbers. At a second lineup in which there were five persons, of which Foster was the only one who had been in the first, the victim was convinced of Foster's identity. It was held that the procedures followed had the police, in effect, saying to the witness, 'This is the man,' made eventual identification of the accused by the victim inevitable and so undermined the reliability of the identification as to violate due process. Since one man in the lineup with Tarkington was of his weight and size, and the prosecutrix was prompt and positive in her identification after having failed to identify her assailant in a previous lineup, we find no violation of due process here. It also seems significant to us that a 'class' ring fitting the description of one worn by the assailant, as related by the prosecutrix, had been removed from Tarkington's hand before the lineup was viewed by the prosecutrix.

The next group of points argued by appellant has to do with an allegedly prejudicial course of conduct of the prosecuting attorney. In appellant's original motion for new trial, he only asserted that the prosecuting attorney violated the orders of the court by asking him if he were not charged with assault with intent to rape on January 23, 1967, and improperly argued that appellant's whole defense was framed by Robert Tarkington, his father. An amended motion filed later asserted the single ground that the prosecuting attorney conducted a star chamber proceeding at which certain witnesses were intimidated and harassed.

We are not aware of any question propounded to appellant about his being charged with assault with intent to rape. The only question of that nature called to our attention is one commenced by the deputy prosecuting attorney conducting the trial for the state. He asked appellant, 'On the twenty-third day of January, 1967, did you assault Lois _ _?' He never completed the question because the prompt objection by appellant was sustained by the circuit judge, who also admonished the jury to disregard the question.

There are several reasons, in addition to appellant's failure to make this question a part of his motion for new trial, why there was no prejudicial error. The court's admonition was certainly calculated to remove any prejudice. If appellant had felt that it failed to do so, he should have moved for a mistrial. Not having done so, he is in no position to complain. Freyaldenhoven v. State, 217 Ark. 484, 231 S.W.2d 121; Fair v. State, 241 Ark. 819, 410 S.W.2d 604. When a defendant takes the stand, he may be asked, in good faith, about other crimes he may have committed, for the purpose of throwing light upon his credibility, but he cannot be asked if he has been charged, indicted or accused of other crimes. Johnson v. State, 236 Ark. 917, 370 S.W.2d 610. Appellant's argument apparently goes, however, to the deputy prosecuting attorney's good faith in asking the question because appellant relates the question to earlier incidents in the trial. It is admitted that, at the beginning of the trial, the court had directed the deputy prosecuting attorney not to call Lois Sikes as a witness. The court had heard a statement by the deputy prosecuting attorney that he expected to prove a similar incident within a week after the rape of the prosecutrix. During the course of the trial the deputy prosecuting attorney called Lois Sikes as a witness. She came from the witness room and walked past the jury box, but never took the stand, because of an objection by appellant's counsel...