Wilson v. State, CA

• Decision Date: 28 September 1983
• Docket Number: No. CA,CA
• Citation: 9 Ark.App. 213,657 S.W.2d 558
• Parties: Charles I. WILSON, Appellant, v. STATE of Arkansas, Appellee. CR 83-57.
• Court: Arkansas Court of Appeals

Page 558

657 S.W.2d 558

9 Ark.App. 213

Charles I. WILSON, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 83-57.

Court of Appeals of Arkansas.

Sept. 28, 1983.

Rehearing Denied Oct. 26, 1983.

Gean, Gean & Gean by Roy R. Gean, III, Fort Smith, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

CLONINGER, Judge.

Appellant was convicted of aggravated robbery and burglary, and received a total sentence of fifteen years in prison.

Six points for reversal are urged by appellant. The points will be discussed in the order listed by appellant. We find no error in the trial court and we affirm.

Appellant's first point for reversal is that the trial court erred in denying his motion to suppress the in-court identification of appellant because it was the product of an unconstitutionally unreliable and suggestive out-of-court identification.

Testimony at trial indicated that the victim went to bed about 11:30 p.m. on the night of June 24, 1982. The next thing she recalled was the struggle with a black male which lasted anywhere from a half minute to a minute. Although there were no lights on in the bedroom the victim testified that she was able to see the appellant in her bedroom because of the streetlight at the corner of her apartment building. She testified that her assailant was sitting on her chest approximately two and a half feet from her face during the struggle in her bedroom. She testified that she could see his face clearly. Appellant was apprehended while walking across a field near the victim's apartment shortly after the assault, and was brought to the victim's apartment for her observation within five to ten minutes after the police were called. The victim identified appellant as her assailant while appellant sat in the police car.

The rule is that a confrontation between a victim and a suspect that takes place at a show-up rather than a lineup does not, without more, constitute a violation of constitutional rights. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Mize v. State, 267 Ark. 743, 590 S.W.2d 75 (1979). The Mize case was very similar to the instant case in that the victim viewed the appellant in a police car very shortly after an assault took place. The assault had taken place in daylight and the prosecuting witness, having been encountered by the appellant very shortly prior to the assault, had ample opportunity to view appellant. The court held that from the totality of the circumstances there was no reasonable basis for contending that the show-up created a substantial likelihood of irreparable misidentification.

In the instant case, the prosecuting witness had ample opportunity to observe the appellant, and she testified that she could see his face clearly at the time of the assault and while he sat in the police car. As in Mize, when we view the totality of the circumstances we find no substantial likelihood of irreparable misidentification. It was important as a practical law enforcement procedure for the police to make a judgment as to whether appellant was the person to be held. The prosecuting witness testified that she saw her assailant's face clearly at the time of the assault, thus providing a basis for her to reliably identify the appellant without reference to the in-custody view. See Mize, supra.

Appellant's second point is that the trial court erred in giving AMCI 2102, relating to aggravated robbery, as the instruction was inapplicable to the evidence presented at trial. The only issue on this appeal is whether or not the words, "or resisting apprehension immediately thereafter" should have been allowed into the instruction on the aggravated robbery charge, because that is the only objection raised by appellant in the trial court. It is well settled that an appellant may not change the grounds for his objection on appeal. Ulmer v. State, 253 Ark. 106, 484 S.W.2d 691 (1972). If an objection is made on one ground at trial, all other grounds are waived on appeal. Williams v. State, 270 Ark. 513, 606 S.W.2d 75 (Ark.App.1980). The state argued to the trial judge that the contested words should be included, since appellant resisted apprehension while leaving the scene of the crime. Appellant argues with justification that there was no resistance of apprehension, and therefore this part of the instruction should not have been given.

It is a well settled rule of law that the trial court only commits reversible error when the appellant has been prejudiced by such. There is no indication here that appellant was prejudiced by this addition to the instruction and further, there is ample evidence to support a finding that appellant employed or threatened to employ physical force during the course of a theft in the victim's apartment. There is evidence in the record to show that money was taken from the victim's apartment, and that the assailant sat upon the victim, placed a pillow over her face, and was holding a knife.

Appellant's third point for reversal is that the trial court erred in denying his proposed instruction on identification.

Appellant argues that he was entitled to his requested instruction relating to identification on the strength of language employed by the Arkansas Supreme Court in Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982), when the court stated that the jury weighs the reliability of the identification evidence under the instructions of the court. The court, in Glover, however, did not say that a defendant is entitled to a specific instruction on identification. In Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), the court observed that just because an offered instruction contains a correct statement of law does not mean it is error for a trial court to refuse to give it. In Conley the court also stated:

At Conley's trial the court gave standard instructions on reasonable doubts and credibility of the witnesses. The victim testified that she was with her assailant for a period of approximately one hour, recognized his voice, and had an opportunity to see him. The defense counsel was able to argue to the jury the lack of accuracy and the weight to be given to her identification testimony.

In the instant case, the trial court gave the standard jury instructions on credibility, AMCI 104, and reasonable doubt, AMCI 110. Counsel for the appellant also argued to the jury his theories of the lack of weight to be given the identification.

Appellant's fourth point for reversal is that the trial court erred in denying his proposed instruction relating to character evidence. Appell...