Wright v. State

• Decision Date: 20 October 1975
• Docket Number: No. CR,CR
• Citation: 528 S.W.2d 905,258 Ark. 651
• Parties: Robert C. WRIGHT and John M. Southerland, Appellants, v. STATE of Arkansas, Appellee. 75--87.
• Court: Arkansas Supreme Court

Page 905

528 S.W.2d 905

258 Ark. 651

Robert C. WRIGHT and John M. Southerland, Appellants, v. STATE of Arkansas, Appellee.

No. CR 75--87.

Supreme Court of Arkansas.

Oct. 20, 1975.

Rehearing Denied Nov. 24, 1975.

Harold L. Hall, Public Defender by Michael Castleman, Deputy Public Defender, Little Rock, for appellants.

Jim Guy Tucker, Atty. Gen. by Lewis D. Smith, Deputy Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Robert C. Wright and John M. Southerland, appellants herein, were convicted of the crime of robbery, and their punishment fixed by the jury at 12 years each confinement in the Arkansas Department of Correction. For reversal, three alleged errors are relied upon which we proceed to discuss, though not in the order listed.

I.

'THERE WAS NOT SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION

OF ROBERT WRIGHT.'

The background of this prosecution concerns the robbery of John's Liquor Store around 9:00 P.M. on September 20, 1974, in Little Rock. Harvey Hall, attendant at the liquor store, testified that three white males came into the store and one struck him with a bottle of whiskey. Fighting back, Hall also struck one of the robbers in the face with a bottle. After being struck twice more, Hall fell to the floor, a pistol, which was on his person, falling to the floor beside him. The men took approximately $100.00 from the store. Hall started firing and the robbers ran from the store. After emptying one pistol, he fired another and was of the opinion that he had struck one of the participants. A prospective customer, Perry Middlebrook, had just driven up in front of the liquor store and he observed three white males run from the establishment. The first two ran toward a blue Falcon automobile and got into it; the third then fled from the store, appeared to be staggering, but also ran to the Falcon and was helped in. This third man left a trail of blood to the car. The police were called and the blue Falcon, occupied by a driver and one passenger, was later stopped by officers and the occupants arrested. These two were appellant Robert Wright, and Ivan Tabb. ¹ Wright was the driver and Tabb a passenger in the front seat. The officers observed a considerable amount of blood in and on the car, apparently coming from a wound on Tabb's nose. There was no blood on Wright. Both men 'reeked' of alcohol. Upon searching Wright, the officers found 37 one dollar bills, 11 five dollar bills and a roll of dimes, totaling $102.00. According to Hall, $90.00 to $100.00 had been taken in the robbery, specifically, about $35.00 to $40.00 in one dollar bills, about $40.00 to $50.00 in five dollar bills and a roll of dimes. ² At an in-custody lineup, Hall and Middlebrook could not identify Wright, and Middlebrook picked out a third person who had no connection with the robbery. ³ On trial, Hall was still unable to make an identification, but Middlebrook identified Wright as one of the robbers. Appellant says that the evidence was insufficient to sustain the conviction, and this assertion is apparently principally based upon the failure of Hall to make an identification and the failure of Middlebrook to make such an identification before trial.

We do not agree that the evidence was insufficient to sustain the conviction. Wright was arrested within twenty minutes after the robbery occurred about two miles from the scene, driving a blue Falcon which had been described almost precisely by Middlebrook as the car in which the robbers had left the scene. ⁴ The passenger was bleeding from his nose which certainly conformed to the statement of Hall that he had struck one of the men in the face with a bottle and also to the evidence of Middlebrook, which was that the last man who entered the Falcon on the passenger side was bleeding. The money found on Wright was substantially the amount that Hall described as taken from the store, including the fives and ones, and even to the roll of dimes found on that appellant, the roll which contained the dimes being the type, according to Hall, used in the store. No witness was offered to explain the source of the money, or the cause of the blood. Of course, the weight of the in-court identification by Middlebrook was a matter for the jury to pass upon, but entirely aside from that, the other evidence was substantial, and sufficient to sustain the conviction. Murphy v. State, 248 Ark. 794, 454 S.W.2d 302.

II.

'THE COURT ERRED IN PERMITTING THE IN-COURT IDENTIFICATION

BY THE PROSECUTING WITNESS OF THE DEFENDANT, JOHN

M. SOUTHERLAND.'

Southerland was not in the car, but was arrested two days later by officers after a tip was received that he might well be involved. Both Wright and Southerland, without benefit of counsel, were placed in a lineup and Southerland was identified by both Hall and Middlebrook ⁵ as one of the three robbers. Prior to trial, a motion was filed to suppress the in-custodial lineup identification of Southerland on the basis of the fact that the arrest of that appellant was illegal, in that it was made without probable cause to believe that Southerland had committed a crime; further, that the information received from a confidential informant was not reliable. At the hearing, held approximately a week before the trial, Officer Kieth Rounsavall, who made the arrest of Southerland, testified that another officer, Boyd Pettyjohn, informed him that Southerland was 'hanging out at a lounge on Asher Avenue, and was supposedly involved in the robbery of John's Liquor Store.' Pettyjohn testified that he received information relative to Southerland, but was not at liberty to divulge from whom this information was received. He did not know the informant personally and had never relied on this person before. He testified that he talked to the informant on the telephone and was asked if he was familiar with the robbery of John's Liquor Store. Upon receiving an affirmative reply, the informant advised that the third man was Southerland, 'and they gave me a description of him and his car, said that he had been bragging about his record, the police thought he was hurt and he wasn't hurt. He had been talking about it at Jim's Lounge out on Asher, and he was supposed to be either a half-brother, or some type of brother, to one of the other subjects we had. Also told me what kind of car he drove. The information was that this person had overheard the gentleman say he had been involved.'

The court stated that unless the state desired to produce the person, it was going to hold that the arrest was not valid since the court did not feel there was sufficient or probable cause shown for making the arrest. ⁶ Officer Pettyjohn then stated that the informant did not have enough information to swear out a warrant, whereupon the court suppressed the lineup evidence, holding that the arrest was invalid; however, it did not dismiss the charge against Southerland.

On December 3, just before the trial was to commence, defense counsel filed the following motion:

'Let the record reflect that I have filed on behalf of John M. Southerland a Motion in Limine, asking the Court to have an In-Chambers hearing concerning the independent identification of the defendant, John M. Southerland. The Court, in a previous hearing, quashed the incustodial lineup view of the prosecuting witness, and it is the contention of this defendant that without a showing on behalf of the prosecution that the prosecuting witness can identify the defendant independent of any information received by his incustodial view that it is improper. And we, therefore, object to the prosecuting witness identifying the defendant in front of the jury, all of which will prejudice the jury in any event the Court's ruling in the courtroom.'

This motion was overruled and Hall and Middlebrook identified Southerland in the courtroom.

The court erred in not granting the motion. Of course, Southerland, after the original arrest (September 22, 1974) was subsequently arrested (October 17, 1974) when the prosecuting attorney filed an information and a bench warrant was issued thereon. However, the pretrial identification took place before that time, and we agree with the trial court that there was an insufficient showing of probable cause for this first arrest. The description of Southerland's automobile contributed nothing, for it was never tied into the robbery at all. Accordingly, we have only a statement from an undisclosed informant, about whom the police apparently knew nothing, not having previously relied on his or her information, who simply stated that Southerland had bragged about his record and further, that the police thought he was hurt 'and I wasn't hurt.' While Officer Pettyjohn stated that he talked with the informant for approximately ten minutes over the telephone, and that the informant discussed the facts with the officer without Pettyjohn relating any facts known by the police department, the officer did not testify concerning the information received in the ten minute conversation other than what has already been set out. Of course, the fact that the informant had not been used before, and could therefore not be characterized as a 'reliable' informant, is not controlling, for there is a 'first time' for anyone who conveys information to the police, but, as stated, on the showing made, probable cause was not established.

The state relies on Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152, where the appellant urged that his nighttime arrest without a warrant was unlawful in the absence of a valid excuse for failure to obtain a warrant, and further urged that his subsequent lineup identification was a violation of the claimed invasion of his Fourth Amendment rights. The court held that the validity of...