King v. State

Jimmy L. KING v. STATE of Arkansas

CR 95-884                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 26, 1996


1.   Criminal procedure -- pretrial identification -- when Due
     Process Clause is violated. --  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. 

2.   Criminal procedure -- suggestive pretrial identification --
     factors considered in determining reliability of
     identification. -- Even when the pretrial identification
     process is suggestive, the circuit court may determine that
     under the totality of the circumstances the identification was
     sufficiently reliable for the matter to be decided by the
     jury; 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.

3.   Criminal procedure -- photo lineups not unduly suggestive --
     appellant's argument without merit. -- Appellant's argument
     that both photo lineups were unduly suggestive was without
     merit where, except for appellant's photo, photos from the
     first lineup were not preserved, thus preventing the court
     from determining whether appellant's photograph from the first
     lineup was so different from the others as to single him out
     and, thereby, taint his identification in the second lineup;
     and, in viewing the pictures in the second lineup in
     conjunction with the photograph of appellant from the first
     lineup, the court found that the two photographs of appellant
     were different; and, there was nothing in the second lineup
     which would direct a witness toward appellant as the primary
     suspect, nor was there any legitimate insinuation that the
     police officer sought to influence the identification by the
     methods he used in presenting the photographs; the fact the
     defendant was the only person included in both a photographic
     lineup and a physical lineup did not, in itself, render the
     identification unduly suggestive.  

4.   Appeal & error -- argument not ruled upon by trial court not
     preserved for appeal. --  Where the specific argument raised
     by appellant was not ruled upon by the trial court, it was not
     preserved for appeal. 

5.   Criminal procedure -- identification process not unduly
     suggestive -- no abuse of discretion in trial court's
     admission of the evidence. -- Appellant's argument that the
     identifications were unreliable was without merit where the
     appellate court found that even though the bulk of the
     reliability factors appeared to have been satisfied, they did
     not need to be addressed because the process involved was not
     unduly suggestive; the court will not inject itself into the
     process of determining reliability unless there is a very
     substantial likelihood of irreparable misidentification; it
     was for the jury to evaluate the weakness or strength of the
     identification testimony, and the circuit court did not abuse
     its discretion in admitting the evidence. 


     Appeal from Miller Circuit Court; Jim Gunter, Judge; affirmed.
     Thomas A. Potter, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.February 26, 1996 *ADVREP2*






JIMMY L. KING,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 95-884




APPEAL FROM THE MILLER COUNTY
CIRCUIT COURT,
NO. CR 93-257-2,
HON. JIM GUNTER, JUDGE,




AFFIRMED.



                    Robert L. Brown, Justice.


     Appellant Jimmy L. King appeals his conviction for aggravated
robbery and first-degree battery and his sentence of 60 years.  He
contends that the circuit court erred in refusing to suppress a
photo lineup and in-court identification.  We conclude that the
circuit court ruled correctly, and we affirm.
     On April 17, 1993, Tammy Akins, Kristine Barnette (now
Templeman), Lynette Oliver, and Kelly Eaves (now Barnette) drove to
Fat Jacks Oyster Bar in Texarkana to celebrate Kelly Eaves upcoming
marriage.  When they arrived, they parked in the last row of
parking places.  Eaves, who was driving, turned the car off and
opened her door to get out.  Akins and Barnette were in the back
seat.  Barnette's door was locked so she reached across Akins and
opened her door, while Akins was rummaging through her purse.  As
the door opened, a man leaned into the car and said, "Give me all
your money".  Akins responded sharply that the man was not getting
her money.  The man then put a gun to her chest, and Akins kicked
him in the stomach.  The man leaned back into the car, shot her,
and fled.
     Eaves started the car, drove to an E-Z Mart down the street,
and called the Texarkana Police Department.  Akins did not realize
that she had been shot until about an hour later when she began
breathing irregularly and was rushed to the hospital.  The bullet
had pierced her stomach twice before becoming embedded in a mass of
muscle.
     On April 18, 1993, the day after the shooting, Sergeant Mike
Mauldin of the Texarkana Police Department conducted a photographic
lineup consisting of several sheets of pictures in which King's
picture was included.  These lineups were separately shown to Kelly
Eaves and Kristine Barnette.  Neither could make an identification. 
On May 11, 1993, these same photographs were shown to the victim,
Tammy Akins.  She, too, was unable to make an identification.
     On May 25, 1993, Tammy Akins was shown a second photo lineup
of six photographs, where a different, more recent picture of King
was included.  All six men photographed had some facial hair.  King
was the only person included in both lineups.  This time Akins
tentatively identified King as the person who shot her.  This same
photo lineup was shown to Kristine Barnette on May 28, 1993, and
Barnette positively identified King as the perpetrator.
     Based on these identifications, King was charged with
aggravated robbery and first degree battery.  Prior to trial, King
moved to have the photo lineups, as well as any subsequent in-court
identification, suppressed on the basis that the pretrial lineups
were unduly suggestive.  Both motions were denied.  At trial, Tammy
Akins and Kristine Barnette positively identified King as the
offender.  King was ultimately convicted by a jury on both counts
and sentenced to sixty years imprisonment.
     King urges on appeal that the circuit court erred in denying
his motion to suppress the pretrial identifications and the in-
court identifications by Tammy Akins and Kristine Barnette.  He
contends that the identifications should have been suppressed
because the pretrial identification procedure was unduly suggestive
and tainted the later in-court identifications.  He then argues
that the identifications should have been excluded because they
lacked sufficient indicia of reliability.  Neither argument has
merit.
     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.  Monk v. State, 320 Ark. 189, 895 S.W.2d 904
(1995); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992).  But
even when the process is suggestive, the circuit court may
determine that under the totality of the circumstances the
identification was sufficiently reliable for the matter to be
decided by the jury.  Neil v. Biggers, 409 U.S. 188 (1972); Monk v.
State, supra; Bishop v. State, supra.  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.  Hayes v. State, 311 Ark. 645,
846 S.W.2d 182 (1993); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988);
see also Neil v. Biggers, supra.
     King contends that the pretrial photo lineups were unduly
suggestive because his photograph was the only one that appeared in
two separate lineups, thus suggesting his identification and
creating a likelihood of misidentification.  Secondly, he contends
that the photo spreads were unnecessarily suggestive because of the
State's failure to create a lineup consistent with the witnesses'
description of the suspect.  Both arguments are without merit.
     This court is hindered in deciding this issue with respect to
the first photo lineup because the photos in the lineup were not
preserved by the Texarkana police, with the exception of the
photograph of King.  Thus, we are unable to determine whether
King's photograph from the first lineup was so different from the
others as to single him out and, thereby, taint his identification
in the second lineup.  See Jackson v. State, 318 Ark. 39, 883 S.W.2d 466 (1994).  Nevertheless, in viewing the pictures in the
second lineup in conjunction with the photograph of King from the
first lineup, we conclude that the process was not unduly
suggestive.  First, the two photographs of King are different.  In
the second photograph used in the second lineup, his hair is
longer, and his moustache is fuller.  Moreover, and most
importantly, there is nothing in the second lineup which would
direct a witness toward King as the primary suspect.  In fact,
Akins had trouble distinguishing between two of the photographs
included in the second lineup when testifying at the suppression
hearing.  Nor has there been any legitimate insinuation that
Sergeant Mauldin sought to influence the identification by the
methods he used in presenting the photographs. See Foster v.
California, 394 U.S. 440 (1969).  Finally, this court in Monk v.
State, supra, stated that the fact the defendant was the only
person included in both a photographic lineup and a physical lineup
did not, in itself, render the identification unduly suggestive. 
See also Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993). 
The same rationale should apply here.
     King also maintains that the second photo lineup was unduly
suggestive because the photographs were not consistent with the
witnesses' description of the suspect.  This specific argument was
not ruled upon by the trial court and thus is not preserved for
appeal.  Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); State
v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992).
     King's final argument is that the identifications were
unreliable.  Though the bulk of the reliability factors cited above
appear to be satisfied, we need not address them because we hold
that the process involved was not unduly suggestive.  Again, this
court will not inject itself into the process of determining
reliability unless there is a very substantial likelihood of
irreparable misidentification.  Bishop v. State, supra; Moore v.
State, 304 Ark. 558, 803 S.W.2d 553 (1991).  It was for the jury to
evaluate the weakness or strength of the identification testimony,
and we cannot say that the circuit court abused its discretion in
admitting the evidence.  See Monk v. State, supra.
     Affirmed.