Van Pelt v. State

• Decision Date: 07 October 1991
• Docket Number: No. CR,CR
• Citation: 306 Ark. 624,816 S.W.2d 607
• Parties: Larry VAN PELT, Appellant, v. STATE of Arkansas, Appellee. 90-275.
• Court: Arkansas Supreme Court

Page 607

816 S.W.2d 607

306 Ark. 624

Larry VAN PELT, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-275.

Supreme Court of Arkansas.

Oct. 7, 1991.

Paul N. Ford, Wynne, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

The appellant, Larry Van Pelt, was convicted of capital murder and sentenced to life without parole for the shooting death of a store clerk, Bernice Henyard, in Parkin, Arkansas. The appellant raises five arguments on appeal. The arguments have no merit, and we affirm the conviction.

On October 24, 1989, between 11:00 p.m. and 11:30 p.m., Henyard was working at P.J.'s Country Store in Parkin. Her fiance, Anthony Dinwiddie, was in the store eating chicken at a booth and visiting with her. While there, Dinwiddie noticed a man in a white cowboy hat walking down the sidewalk toward the store. The man pushed his hat down over his head as he passed the store window. He then stopped and returned to his car. Dinwiddie's next recollection was of the man in the store talking to the victim. Dinwiddie heard the sound of money in the cash register, and then Henyard screamed his name. The man pointed a gun at Dinwiddie and said, "Get your ass up here." Dinwiddie went to the counter and was within six to eight feet of the man, who said to Henyard, "Give me all your money, bitch." She handed him a stack of bills. The gunman pointed the gun at her head and shot her in the right eye, killing her instantly. Dinwiddie immediately raced to the door, and the gunman fired a shot at him which missed but shattered the glass in the door. Dinwiddie ran across the parking lot, turned, and saw the man get into his white car. Because of the lighting Dinwiddie was able to get part of the license number. He gave chase in his car, encountered a police officer, told him the story, and the officer continued pursuit. The license number and car description were dispatched over police radio, and a man in a white Lincoln was stopped and arrested within the hour. The arresting deputies seized a white cowboy hat, a baseball cap containing money, and a .22 automatic pistol from the suspect's car. Dinwiddie, meanwhile, had returned to P.J.'s Country Store, and then went to his uncle's house, his own home, and finally to the Parkin police station.

While at the station Dinwiddie heard a report from the radio dispatcher that a suspect had been arrested. When the sheriff and car with the suspect arrived, Dinwiddie looked out the window and saw the handcuffed man. At that point he said, "Yeah, that's the son-of-a-bitch that did it." When the suspect was escorted into the room where Dinwiddie was sitting, Dinwiddie struck him in the face with his fist. Dinwiddie was shown no photographs, and no line-up was conducted.

At the trial, which took place from July 30 through August 2, 1990, Dinwiddie identified the appellant in court as the gunman. The shell casings found at the country store were also identified by expert testimony as having been fired from the pistol found in the appellant's car.

For reversal of his conviction the appellant first argues that the death penalty as set out at Ark.Code Ann. § 5-10-101 (Supp.1991) constitutes cruel and unusual punishment under the Eighth Amendment. We dismiss this argument. Case authority is clear that the appellant, having received a sentence of life without parole, has no standing to challenge the constitutionality of the death penalty. See Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979).

The appellant next asserts that the trial court erred in denying his motion to prohibit the prosecutor from qualifying the jury for consideration of the death penalty, which denied him an impartial jury under the Sixth Amendment. This argument has been raised many times and has also been decisively disposed of by both the United States Supreme Court and this court. See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988). The appellant gives us no compelling reason to reexamine the issue.

For his third argument the appellant contends that the capital murder statute overlaps impermissibly with our first-degree murder statute. See Ark.Code Ann. §§ 5-10-102(a)(2) and 5-10-101(a)(4) (Supp.1991). This overlapping occurs, according to the appellant, with the degree of purposeful action required in the two statutes. Capital murder requires "the premeditated and deliberated purpose of causing the death of another person" while first-degree murder mandates "the purpose of causing the death of another person." We have held repeatedly that while the two statutes may appear to overlap on the degree of required intent, this does not render them unconstitutional due to vagueness or arbitrariness. See Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Weaver v. State, supra; Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990). As we said in Hill, our case law regards first-degree murder as a lesser included offense subsumed in the capital murder offense. The appearance of overlap raised by the appellant does not deny the appellant his right to due process, and we affirm yet again the constitutionality of both sections of our Criminal Code.

The appellant's principal argument centers on the trial court's decision to allow Dinwiddie's in-court identification, irrespective of his prior encounter with the appellant at the police station. The appellant's theory is that the "show-up" procedure with the deputies' escorting only the appellant into the police station was unduly suggestive and tainted any further identification by Dinwiddie. We disagree. We will not reverse a trial court's ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). In determining whether an in-court identification is admissible, we first look at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988); Bowden v. State, supra. It is the appellant's burden to show that the pre-trial identification procedure was suspect. Shuffield v. State, 23 Ark.App. 167, 745 S.W.2d 630 (1988).

In the case before us, although Dinwiddie was present at the time of the appellant's arrival in custody, there is no evidence suggesting that the police brought the appellant to the station to facilitate an identification by Dinwiddie. Dinwiddie made his initial identification spontaneously and before the appellant was brought inside the building. Moreover, he could not have known for certain that the person who was getting out of the sheriff's car was indeed the suspect in that crime.

We have previously recognized that witness identification of a suspect at a police station, when the police have not orchestrated a pre-trial identification, does not invalidate a subsequent in-court identification. Murphy v. State, 269 Ark. 181, 599 S.W.2d 138 (1980); Pollard v. State, 258 Ark. 512, 527 S.W.2d 627 (1975); see also Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), which involved a spontaneous identification of a suspect as he stepped onto the stage in the line-up room. In Murphy, the witness saw a suspect get out of a police vehicle at the station after having seen the man outside her bedroom window a short time before. In Pollard, a witness who was waiting for a line-up identified the suspect as he walked with other line-up participants from the jail-cell area. We upheld the identifications in both cases.

Even had the pre-trial identification been impermissibly suggestive, the taint of an improper "show-up" was removed by the clear and convincing evidence that the in-court identification...