Utley v. State, CR

Decision Date16 March 1992
Docket NumberNo. CR,CR
Citation308 Ark. 622,826 S.W.2d 268
PartiesRodney Dale UTLEY, Appellant, v. STATE of Arkansas, Appellee. 91-189.
CourtArkansas Supreme Court

Joseph C. Self, Fort Smith, for appellant.

Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, Rodney Dale Utley, was convicted of aggravated robbery and sentenced to eighty years imprisonment as a habitual offender. He argues the Trial Court erred by not allowing an expert witness to testify about factors affecting the reliability of eyewitness testimony. He raises other issues which we decline to consider as they were presented to the Trial Court only in an untimely motion for new trial. We find no abuse of discretion in the exclusion of the proffered expert testimony as the testimony would not have assisted the jury and would have invaded the province of the jury.

On November 6, 1989, at 9:57 p.m., a man entered a Subway Sandwich Shop in Fort Smith and asked two employees, Charlene Guinn and Vicki Duncan, if they had ever been robbed. He showed them a pistol and told them to give him the money in the cash register. Guinn testified she became so frightened she could not move. Duncan pushed Guinn toward the register, and Guinn removed money which she gave to Duncan who handed it to the man who then told them to get down on the floor and left.

Both witnesses described the culprit as being 5'10"' tall with dark hair, dark eyes, and a mustache. He was wearing a lightweight tan jacket. They said the incident took approximately two minutes. Guinn testified she looked at the man for about sixty seconds. She also stated she was very frightened and focused most of her attention on the gun. Guinn tried not to look at the man's face because it scared her. Duncan testified she looked at the man's face for approximately thirty seconds. She also admitted focusing part of her attention on the gun. Both witnesses identified Utley in a photographic line-up and at trial as the man who robbed the store. The women were certain of the accuracy of their identifications.

Utley was arrested in connection with another offense in Louisiana, and the police seized a plastic pellet pistol and a tan jacket from his car. Guinn and Duncan stated the gun seized looked like the gun used in the offense, and the jacket seized looked like the jacket the robber wore.

Utley claimed the two witnesses were mistaken in identifying him, and he presented an alibi defense through the testimony of Angela Morgan and John Hamilton. Morgan was a prostitute living at the Colonial Motel in Fort Smith. She testified Utley was in her motel room on November 6 at 9:36 p.m. when she left to visit a friend. When she returned at 10:41, Utley was still in the room and remained there until friends helped him start his car at 11:30. Records from a cab company corroborated Morgan's testimony that she left the motel at 9:36 and returned at 10:41. Hamilton lived with Morgan. He stated Utley was in their motel room from approximately 9:30 until 11:30 on November 6th.

Utley proffered the testimony of Dr. Ira Bernstein about factors affecting eyewitness perception, including, (1) the negative correlation between the confidence of an identification and its accuracy; (2) the effect of stress on the accuracy of an identification; (3) the effect presence of a weapon has on the accuracy of an identification, and (4) the effect of a subsequent photographic line-up on the accuracy of an identification. Dr. Bernstein stated he would not specifically testify whether Guinn and Duncan were accurate in identifying Utley.

The Trial Court refused to allow the testimony because (1) Utley was given the opportunity to cross-examine the witnesses and argue to the jury on the areas the expert would testify, (2) the jury would not receive appreciable help from the testimony because most of the matters could be understood by a jury of average intelligence, and (3) the probative value of the testimony was outweighed by the potential for prejudice.

The jury returned a guilty verdict on the aggravated robbery charge. A judgment and a commitment order were entered August 22, 1990, and Utley was advised he had 30 days to move for a new trial pursuant to former Ark.R.Crim.P. 36.4. Utley moved for new trial on October 22, 1990, alleging, among other things, ineffective assistance of counsel. The motion was denied.

a. Expert testimony

Utley contends Dr. Bernstein's testimony should have been admitted and cites cases from other jurisdictions supporting his argument. See, e.g., State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983); People v. McDonald, 37 Cal.3d 351, 690 P.2d 709, 208 Cal.Rptr. 236 (1984); State v. Moon, 45 Wash.App. 692, 726 P.2d 1263 (1986).

In evidentiary determinations, a trial court has wide discretion. We do not reverse absent abuse. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact in issue. Ark.R.Evid. 702 (1991); Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier to understand and draw its own conclusions. Russell v. State, supra.

Both this Court and the Court of Appeals have upheld a trial court's decision not to allow expert testimony on reliability of eyewitness identifications. In Criglow v. State, 183 Ark. 407, 36 S.W.2d 400 (1931), an expert witness was called to testify about whether two eyewitnesses were mistaken in identifying Criglow. The Trial Court excluded the testimony, and we affirmed holding:

The question whether these witnesses were mistaken in their identification, whether from fright or other cause, was one which the jury, and not an expert witness, should answer. This was a question upon which one man as well as another might form an opinion, and the function of passing upon the credibility and weight of testimony could not be taken from the jury. [citations omitted...

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30 cases
  • Flowers v. State
    • United States
    • Arkansas Supreme Court
    • May 5, 2005
    ...is whether the facts and circumstances of the case are beyond the jury's ability to comprehend and draw its own conclusions. Utley, 308 Ark. 622, 826 S.W.2d 268. In Utley, this court held that the trial court did not abuse its discretion by excluding testimony similar to Dr. Zimmerman's tes......
  • Schutz v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 3, 1997
    ...perception and recall held to be inadmissible as invading the province of the jury), cited with approval by, Utley v. State, 308 Ark. 622, 826 S.W.2d 268, 270 (1992); Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky.1993)(Opinion that a child's testimony is most likely accurate is improper; re......
  • Nooner v. State
    • United States
    • Arkansas Supreme Court
    • October 9, 1995
    ...See Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991); Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). In this case, the jury had before it the videotape and photographs taken the night of the murder, mug shots of Nooner taken wit......
  • Standridge v. State
    • United States
    • Arkansas Supreme Court
    • April 29, 2004
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6 books & journal articles
  • Opinion
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • July 31, 2018
    ...su൵ers from a mental or physical impairment which would a൵ect the witness’ ability to observe or remember events. Utley v. State , 826 S.W.2d 268 (Ark. 1992). Trial court properly excluded eyewitness identiication expert where jury could equally assess impact of psychological factors such a......
  • Lay & Expert
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Opinion
    • May 5, 2019
    ...suffers from a mental or physical impairment which would affect the witness’ ability to observe or remember events. Utley v. State , 826 S.W.2d 268 (Ark. 1992). Trial court properly excluded eyewitness identification expert where jury could equally assess impact of psychological factors suc......
  • Opinion
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2015 Contents
    • July 31, 2015
    ...suffers from a mental or physical impairment which would affect the witness’ ability to observe or remember events. Utley v. State , 826 S.W.2d 268 (Ark. 1992). Trial court properly excluded eyewitness identification expert where jury could equally assess impact of psychological factors suc......
  • Opinion
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • July 31, 2017
    ...su൵ers from a mental or physical impairment which would a൵ect the witness’ ability to observe or remember events. Utley v. State , 826 S.W.2d 268 (Ark. 1992). Trial court properly excluded eyewitness identiication expert where jury could equally assess impact of psychological factors such a......
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