Williams v. State

• Decision Date: 29 May 2014
• Docket Number: No. CR–13–563.,CR–13–563.
• Citation: 435 S.W.3d 483,2014 Ark. 253
• Parties: Antonio L. WILLIAMS, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2014 Ark. 253

435 S.W.3d 483

Antonio L. WILLIAMS, Appellant

v.STATE of Arkansas, Appellee.

No. CR–13–563.

Supreme Court of Arkansas.

May 29, 2014.

Jeff Rosenzweig, for appellant.

Dustin McDaniel, Att'y Gen., by Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

COURTNEY HUDSON GOODSON, Associate Justice.

A jury in Pulaski County found appellant Antonio L. Williams guilty of capital murder for which he received a sentence of life in prison without the possibility of parole. The jury also found that appellant employed a firearm as a means of committing the offense and enhanced his sentence by seven years pursuant to Arkansas Code Annotated section 16–90–120(a) (Supp.2013). For reversal, appellant contends that the circuit court erred by refusing to suppress the in-court identification of witness Torrece Graydon and by denying his motion for mistrial due to improper remarks made by the prosecutor during closing argument. We affirm on both issues.

Factual Background

Because appellant does not challenge the sufficiency of the evidence against him, only a brief recitation of the facts is necessary. On the evening of December 28, 2011, Kelvin Lott Shelton and his girlfriend, Torrece Graydon, left their apartment in North Little Rock and drove to Little Rock in a Jeep Grand Cherokee that they had borrowed from Graydon's sister. According to Graydon, the purpose of this outing was for Shelton to sell marijuana to someone Shelton referred to as “Big Mike,” who was otherwise known as Michael Williams, appellant's brother. After receiving directions, Shelton drove to the area of 15th and Jones Streets and parked near the curb behind a black Chrysler 300. In describing what occurred next, Graydon stated that two men exited the Chrysler and entered the back seat of the Jeep. She testified that Shelton showed the marijuana to the two men, who then wanted to obtain the approval of their “bro” for the purchase. Graydon said that the two men reentered the Chrysler and that, after a few minutes, the two men and another man emerged from the Chrysler. The third man, whom Graydon later identified as appellant, then entered the back seat of the Jeep, while the others remained standing outside. She testified that appellant leaned forward between the front seats in the area of the console, shoved her with his arm, put a gun to Shelton's head and said, “Give me what you got. Give it up.” Graydon said that she unfastened her seat belt, got out of the car, and ran. While fleeing, she heard gunshots.

After hiding under a car for a time, Graydon found refuge in a man's home, and she called the police. Officer Debra Atkisson responded to the call, and she and Graydon set out to locate the Jeep. They found the vehicle, which had crashed into a pole at Jones and 14th Streets. Atkisson found Shelton dead inside the Jeep. The autopsy revealed that he had died of a single gunshot wound to the back.

On the night of the murder, other than knowing the moniker “Big Mike,” Graydon could not identify any of the assailants, but she described the man with the gun as being 5' 7? tall and weighing 160 pounds and said that he was wearing a “do-rag.” Graydon telephoned a detective on January 3, 2012, and advised that she remembered that one of the suspects had facial scars from having been burned. Based on additional information received from Shelton's sister, Akeya Shelton, the police developed appellant and his brother Michael as suspects in the murder. Both appellant and Michael bear scars on their faces resulting from a fire that occurred when they were children. Detective Kevin Simpson prepared two photo arrays for Graydon to view. One of the them contained a photograph of appellant, while the other included one of Michael. On January 4, 2012, Graydon identified appellant in the photo array as the man who had held a gun to Shelton's head. She also identified Michael from the photospread as one of the other men, but she later recanted that allegation after seeing Michael at a court appearance and realizing that, because of his large size, he was not one of the men she had encountered that night.

The police acquired a video from a surveillance camera located near the crime scene that depicted the movements of the Jeep and the Chrysler 300, and the persons riding in the Chrysler, shortly before and after the Jeep struck the pole. Also at trial, Sherice Williams, appellant's sister, confirmed in her testimony that appellant drove a black Chrysler 300. During a search, the police found appellant's wallet and a soda can inside the vehicle. Testing revealed that appellant could not be excluded as a contributor of DNA found in the soda can. Crime-scene specialists also collected pieces of plastic from a taillight at the scene. One of the taillights on the Chrysler 300 was broken, and the pieces found in the street were a perfect forensic match to the Chrysler's taillight. When appellant was arrested, he told the police that he was 5'7? tall and weighed 160 pounds. The State also introduced into evidence two phone calls made by appellant from jail. In one of them, he discussed paying Graydon $1,000 to change her story. In another, appellant stated that Michael was not present when Shelton was killed.

Based on the evidence, the jury found appellant guilty of capital murder. The State had waived the death penalty and, therefore, appellant received a sentence of life in prison without parole, plus the seven-year enhancement for committing the offense with a firearm. This appeal followed.

Suppression of In–Court Identification

Prior to trial, appellant moved to suppress Graydon's identification of him from the photospread, as well as her identification of him at trial. He argued that the photo lineup was unduly suggestive because his was the only photograph of a male who had facial scarring and who was wearing a knit cap. He thus contended that Graydon's identification of him from the photo array was inadmissible and that the pretrial identification tainted any subsequent identification of him at trial. After a hearing, the circuit court agreed with appellant's argument that the photo array was impermissibly suggestive and suppressed evidence of that lineup. However, the circuit court denied appellant's request to preclude Graydon's in-court identification of him at trial. Appellant argues on appeal that the circuit court erred because the net effect of the ruling was of no benefit to him because it was necessary for him to use the suggestiveness of the photospread to attack Graydon's identification of him as the perpetrator at trial.

This court has held that 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. Ray v. State, 2009 Ark. 521, 357 S.W.3d 872; Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). Even if prior identifications may have been improper or suggestive, an in-court identification will not be suppressed if indicia of reliability are found to independently exist. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000); Burnett v. State, 302 Ark. 279, 790 S.W.2d 137 (1990). Thus, reliability is the linchpin in determining the admissibility of identification testimony. Mezquita v. State, 354 Ark. 433, 125 S.W.3d 161 (2003); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). 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. Mezquita, supra; Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). The conclusion to be drawn from these factors is dependent on the totality of the circumstances. Tester, supra.

It is for the trial court to determine if there are sufficient aspects of reliability present in an identification to permit its use as evidence. Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995). It is then for the jury to decide what weight that identification testimony should be given. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). We do not reverse a ruling on the admissibility of identification unless it is clearly erroneous, and we will not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. Tester, supra (citing Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995)).

In this case, the circuit court found that the pretrial identification was overly suggestive...