Kimble v. State

Anthony Leon KIMBLE v. STATE of Arkansas

CR 97-909                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1998


1.   Criminal procedure -- identification procedure impermissibly
     suggestive -- identification still may be found to be
     sufficiently reliable. -- Even when the identification
     procedure is impermissibly suggestive, the trial court may
     determine that under the totality of the circumstances the
     identification was sufficiently reliable for the matter to be
     submitted to the jury, and then it is for the jury to decide
     the weight the identification testimony should be given.  

2.   Criminal procedure -- reliability of identification -- factors
     considered. --  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 pre-trial 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 -- victim's identification of appellant
     reliable -- trial court not clearly erroneous in denial of
     suppression motion. -- Where the victim related that he could
     see appellant "very well" when the robbery was committed, the
     victim never identified any other person as the perpetrator
     and added that the robber's slim facial features were easy to
     recognize, the victim never failed on a prior occasion to
     identify appellant and only a few days had elapsed between the
     time of the robbery and when the victim selected appellant
     from the lineup, the victim's identification and the
     circumstances surrounding it were reliable; based on this
     evidence, the trial court was not clearly erroneous in
     rejecting appellant's suppression motion. 

4.   Trial -- reference to defendant's prior conviction during
     guilt phase of criminal trial will result in some prejudice to
     defendant -- mistrial is drastic remedy. -- Any reference to
     a defendant's prior conviction during the guilt phase of a
     criminal trial results in some prejudice to the defendant;
     declaring a mistrial, however, is a drastic remedy and proper
     only where the error is beyond repair and cannot be corrected
     by any curative relief.

5.   Trial -- some prejudice resulted from testimony referring to
     defendant's prior conviction -- refusal to grant mistrial not
     error. -- Although some prejudice resulted from the witness's
     testimony, it was not so injurious as to warrant a mistrial,
     especially in light of the fact that no further testimony was
     elicited regarding appellant's prison stay; the trial court is
     in a better position to determine the effect of the remark on
     the jury, and here the trial court concluded the reference was
     insufficient to warrant a mistrial. 

6.   Trial -- prejudicial statement usually cured by admonition to
     jury -- admonition would have been sufficient -- no such
     instruction requested. -- An admonition to the jury usually
     cures a prejudicial statement unless it is so patently
     inflammatory that justice could not be served by continuing
     the trial; an admonition is sufficient to cure a witness's
     reference  to a defendant's "previous record"; here, such an
     admonition would have been sufficient to cure any prejudice,
     but appellant never requested one; it was appellant's
     obligation to ask for a curative instruction, and the failure
     to do so will not inure to his benefit on appeal.  

7.   Criminal procedure -- rule does not mandate denial of every
     untimely motion -- issue preserved for review. -- The State's
     assertion that appellant's argument was not preserved for
     review because appellant failed to file a motion to suppress
     the evidence at least ten days in advance of the trial date,
     as mandated by A.R.Cr.P. 16.2(b), was without merit; Rule 16.2
     does not mandate the denial of every motion that is untimely;
     in the absence of a timely objection by the State during
     trial, the supreme court could not conclude that the motion to
     suppress was not properly before the trial court or that the
     trial court's ruling on it was not properly preserved for
     review.   

8.   Search & seizure -- motel registrant protected against
     unreasonable search and seizure -- only those actually
     registered have reasonable expectation of privacy. -- One
     registered at a motel as a guest is protected against
     unreasonable searches and seizures; one merely staying for a
     short time in the room, without actually being registered,
     does not have this same expectation of privacy in the motel
     room. 

9.   Search & seizure -- appellant lacked standing to object to
     search -- trial court properly allowed testimony concerning
     seized items. -- Appellant lacked standing to object to the
     search on Fourth Amendment grounds where the registration card
     showed that his girlfriend had rented the motel room, where
     appellant's name was not shown, and where the couple stayed in
     the room for only a short time before leaving; the trial court
     properly allowed the testimony concerning the seized items; a
     proponent of a motion to suppress has the burden of
     establishing that Fourth Amendment rights have been violated;
     those rights are personal in nature; here, more was needed to
     establish a privacy interest in the room. 


     Appeal from Montgomery Circuit Court; Gayle Ford, Judge;
affirmed.
     Darrel Blount, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Sr. Asst.
Att'y Gen., for appellee.

     Tom Glaze, Justice.
     Appellant Leon A. Kimble was convicted of aggravated robbery
and sentenced to life imprisonment.  He raises three points for
reversal; all lack merit, so we affirm.  
     Kimble first challenges the trial court's refusal to suppress
the testimony of the victim, Bob Wilhite, concerning a pretrial
photographic lineup which Kimble claimed was unduly suggestive and
tainted Wilhite's in-court identification of him.  
     Wilhite owned a restaurant in Mt. Ida where he was robbed and
shot twice on September 16, 1996.  After the crime (and later at
trial), he described his assailant to the police as a clean-shaven,
short-haired black male who had a light complexion, thin lips, and
a thin, narrow nose.  The perpetrator carried a weapon Wilhite
believed to be a blue steel .32 automatic.  Based on this
description, the police uncovered two separate suspects, Kimble and
a L. A. Fugate.  The police initially placed Fugate's picture along
with five other black males in a photo lineup and showed the lineup
to Wilhite, who could not identify any one of the men as the one
who shot him.  After obtaining Kimble's picture, a second lineup
was shown to Wilhite.  This time, the lineup contained the same
photos as appeared in the first lineup, but differed only by the
substitution of Kimble's picture for Fugate's.  Wilhite quickly
identified Kimble as his assailant.
     In a pretrial motion, Kimble requested that the results of the
lineups be suppressed because the manner in which the police
handled the photographs was unduly suggestive.  After the trial
court took Kimble's motion under advisement, it ultimately ruled
that, although one could very seriously argue the second photo
lineup was suggestive, the totality of the circumstances were such
that the trial court found Wilhite's identification was
sufficiently reliable for the matter to be submitted to the jury. 
The trial court applied applicable case law correctly. 
     Our court has held that, even when the identification
procedure is impermissibly suggestive, the trial court may
determine that under the totality of the circumstances the
identification was sufficiently reliable for the matter to be
submitted to the jury, and then it is for the jury to decide the
weight the identification testimony should be given.  Wooten v.
State, 325 Ark. 510, 931 S.W.2d 408 (1996).  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.  Id.
     Here, Wilhite related that he could see Kimble "very well"
when the robbery was committed.  He said that he remembered the
perpetrator was a black male with thin facial features and light
complexion, and that his features were "pronounced and well lit." 
Wilhite never identified any other person as the perpetrator and
added that the robber's slim facial features were easy to
recognize.  When shown the photo lineup with Kimble's picture,
Wilhite said he was convinced Kimble was the robber.  Wilhite never
failed on a prior occasion to identify Kimble and only a few days
had elapsed between the time of the robbery and when Wilhite
selected Kimble from the lineup.  Thus, Wilhite's identification
and the circumstances surrounding it were reliable.  Based on this
evidence, we cannot say the trial court was clearly erroneous in
rejecting Kimble's suppression motion. 
     Kimble next challenges the trial court's denial of his motion
for mistrial which he made due to a statement from one of the
State's witnesses concerning Kimble's prior imprisonment.
     Stacy Robinson testified that, as a neighbor of Kimble's
girlfriend, Katherine Lupinek, she had had a conversation with the
couple in her home.  When questioned by the State about the subject
of that conversation, Robinson began, ". . . he told me that he had
gotten out of prison about a year and a half ago. . .."  Kimble
immediately objected arguing that the State was intentionally
attempting to elicit testimony about prior convictions, and that a
mistrial was in order because the jury had been tainted by the
testimony.  The State responded that it was not trying to elicit
testimony regarding Kimble's prior conviction, but, rather, was
trying to get to the essence of the conversation between Robinson
and Kimble, which would show that Kimble tried to buy a gun from
Robinson, but she declined because Kimble said that he had just
gotten out of prison.  Also, the State revealed that Robinson's
entire statement, including her reference to Kimble's prior prison
record, had been disclosed during discovery proceedings.  The court
denied Kimble's request for relief.
     Any reference to a defendant's prior conviction during the
guilt phase of a criminal trial results in some prejudice to the
defendant.  Heard v. State, 322 Ark. 553, 560, 910 S.W.2d 663
(1995).  Declaring a mistrial, however, is a drastic remedy and
proper only where the error is beyond repair and cannot be
corrected by any curative relief.  Id.; see also Furlough v. State,
314 Ark. 146, 150, 861 S.W.2d 297 (1993).  Here, although some
prejudice resulted from Robinson's testimony, it was not so
injurious as to warrant a mistrial, especially in light of the fact
that no further testimony was elicited regarding Kimble's prison
stay.  The trial court is in a better position to determine the
effect of the remark on the jury and here the court concluded the
reference was insufficient to warrant a mistrial.  Heard, 322 Ark.
553, 560, 910 S.W.2d 663, 667.  
     Furthermore, an admonition to the jury usually cures a
prejudicial statement unless it is so patently inflammatory that
justice could not be served by continuing the trial.  Id.  This
court has concluded that an admonition is sufficient to cure a
reference a witness made to a defendant's "previous record."  Id. 
Here, such an admonition would have been sufficient to cure any
prejudice in the instant case, but Kimble never requested one.  It
was clearly Kimble's obligation to ask for a curative instruction,
and the failure to do so will not inure to his benefit on appeal. 
See Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993).  
     As for Kimble's final argument, he persists that it was error
for the trial court to allow testimony concerning evidence seized
during an alleged illegal warrantless search of a motel room rented
to his girlfriend Lupinek.  
     The testimony regarding the warrantless search and the items
seized were as follows.  Upon information that a suspect fitting
the perpetrator's description was accompanying a guest at a local
motel, Deputy May, along with his Captain and Investigator Butch
Godwin, entered the motel room without a warrant with the
permission of the motel's manager.  Once inside, the officers
noticed the room key on the nightstand.  The continuation of the
search revealed a bloody towel, and, in the wastebasket, an
envelope with Lupinek's address on it.  Further information
uncovered at the address on the envelope led to a second residence,
where the nickname and possible whereabouts of Kimble were
discovered.  Kimble and Lupinek were then traced to Kimble's
parents' home in Florida, where the two were arrested and waived
extradition to Arkansas.
     As a preliminary matter, the State asserts that the argument
is not preserved for our review, because Kimble failed to file a
motion to suppress the evidence at least ten days in advance of the
trial date, as is mandated by A.R.Cr.P. 16.2(b).  Rule 16.2 does
not mandate the denial of every motion which is untimely, and in
the absence of a timely objection by the State during trial, we
cannot conclude that the motion to suppress was not properly before
the trial court or that the trial court's ruling on it was not
properly preserved for review.  See Butler v. State, 309 Ark. 211,
214, 829 S.W.2d 412 (1992).  
     In reaching the merits of Kimble's argument, we nevertheless
hold that Kimble lacks standing to object to the search on Fourth
Amendment grounds.  The registration card adduced at trial showed
Lupinek had rented the motel room.  The card showed that two people
were to occupy the room, but nowhere was Kimble's name shown.  The
manager of the motel testified that, sometime between 5:00 p.m. and
7:00 p.m., Lupinek filled out the registration card, paid $40.00 in
cash, and later that evening the couple left the motel together in
Lupinek's car.
     In Rockett v. State, 318 Ark. 83, 883 S.W.2d 478 (1994)
(Rockett I), we acknowledged that one registered at a motel as a
guest is protected against unreasonable searches and seizures.  See
Stoner v. California, 376 U.S. 483 (1964).  However, in the
companion case to Rockett I, Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995) (Rockett II), we further concluded that Rockett's
accomplice, Nooner, had never proved an expectation of privacy in
the motel room in question, because the room had been registered
only in Rockett's name, and because Nooner had failed to present
any evidence that he spent anything other than a brief period of
time in the room.  
     It is clear that a proponent of a motion to suppress has the
burden of establishing that Fourth Amendment rights have been
violated.  See Rakas v. Illinois, 439 U.S. 128 (1978).  Those rights
are personal in nature.  Id.;  Rockett II, supra.  In the present
case, as in Rockett II, more was needed to establish a privacy
interest in the room.  Kimble has failed to present sufficient
proof to support his standing to raise the issue of an unreasonable
search and seizure.  In sum, the trial court properly allowed the
testimony concerning the seized items.
     Affirmed.