DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-1427

September 26, 2001

ASHFORD T. BOYLAND AN APPEAL FROM ARKANSAS

APPELLANT COUNTY CIRCUIT COURT

NORTHERN DIST. [CR99-83]

V. HON. RUSSELL ROGERS, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Three days following a robbery at gunpoint, the victim identified appellant Ashford T. Boyland from a photographic line-up, and later identified him in court. A jury subsequently convicted appellant of aggravated robbery, felon in possession of a firearm, and misdemeanor theft of property. Appellant received a sentence of twenty-six years' imprisonment. On appeal, he argues that 1) the photo line up was unduly suggestive, and 2) the victim's in-court identification was tainted. Because we conclude that the trial court properly allowed the victim to identify appellant in court, we need not address appellant's first argument.

Facts and Procedural History

During the late evening of May 11, 1999, David Krissell drove his vehicle to K & M Pumps, a business owned by his parents and located on Main Street in Stuttgart, Arkansas. After checking on the business and returning to the car, Krissell suddenly saw the face of a black male in his driver's side window, which was opened. The man, later identified by Krissell as appellant, pointed a gray metal revolver in Krissell's face and demanded that Krissell hand over his keys and money.

Appellant was subsequently arrested and charged with aggravated robbery, theft, and for being a felon in possession of a firearm. Prior to trial, appellant filed a motion to suppress the State's photographic line-up evidence, alleging that the evidence was unduly suggestive and unconstitutional in nature. The trial court held a suppression hearing on September 27, 1999, and a jury trial took place on June 20, 2000. After noting that the court denied his motion to suppress, appellant renewed his motion, arguing it was inevitable that Krissell would choose appellant from the line-up based on the drastic age difference between appellant and the other individuals in the display. Appellant also made a motion in limine to prevent an in-court identification by Krissell, arguing that the photographic line-up, coupled with Krissell's presence at the suppression hearing, combined to taint Krissell's in-court identification. The court declined both motions, and the trial commenced.

Krissell testified that on May 1, 1999, two of his daughters were involved in an automobile accident. Because one of his daughters was hospitalized at Arkansas Children's Hospital in Little Rock, Krissell was traveling between Little Rock and Stuttgart. On May 11, 1999, he returned to Stuttgart. That night he went into town to get gas for his next day's trip to Little Rock and to check the alarm system at his parents' business. Because his driver's door would not open, Krissell backed up to the front door and exited his vehiclethrough the passenger door. After he made sure the alarm was set, Krissell got back in his car to start it. When he looked up, a black male was leaning toward the driver's window, pointing a gray steel revolver at him. Krissell testified that he could clearly see the face of his assailant, because of light illuminating nearby from a laundry and car wash. The man demanded that Krissell turn off the car and hand over his keys. Once Krissell did so, the man instructed Krissell to exit the vehicle, and stood at the driver's door for one or two minutes. Krissell replied that the driver's door was broken and that he could not get out of the driver's door. The man pulled the hammer back on the pistol and began to look around. By this time, Krissell had begun to slide toward the passenger side while attempting to keep his head away from the gun. When Krissell exited the car, the man demanded Krissell's money. After Krissell gave him sixty dollars, the man walked in front of the car and around the corner. Once he left, Krissell started his car with his spare set of keys and went to a Total gas station where he telephoned the police.

Krissell testified that although the man was at his car no more than three or four minutes, he was able to see his assailant's face. Thinking that the assailant's face looked familiar, Krissell remembered the next day that the man reminded him of Tupac Shakur. When Krissell returned to Stuttgart on May 14, he gave the police a statement. He told the police that the man had on a black stocking cap, that he had a light mustache, and that the robber reminded him of Shakur. He also described the robber as thin to medium build, twenty to twenty-five years of age, 5'6" to 5'8" in height, having a light mustache, and having a dark complexion. Krissell testified that he gave Sergeant Duke his description ofthe robber before the sergeant ever showed him any photographs. Krissell testified that he picked appellant out of the photo line-up because appellant was the person who robbed him. He stated that when he identified appellant there was no doubt in his mind because he had never had a gun put in his face. Krissell then identified appellant as the man he picked in the photo line-up and the man with the gun in his car. After the State rested, appellant renewed his motion to suppress the photographic evidence and the in-court identification. The court denied the motions. At the close of the evidence, counsel for appellant renewed his motion to suppress the photographic line-up and the in-court identification of appellant, arguing that the evidence was overly suggestive. The court again denied the motions. After the jury returned with guilty verdicts on all counts, the trial court sentenced appellant to twenty-six years' imprisonment. This appeal follows.

Standard of Review

An appellant bears the burden of demonstrating that an identification procedure is suspect, so as to preclude identification testimony at trial. See Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). We will not reverse a trial court's ruling regarding the admissibility of identification evidence unless we determine that the ruling is clearly erroneous, based on the totality of the circumstances. See Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Also, we will not engage in the process of gauging reliability unless there is a very strong probability of irreparable misidentification. See id.

In-Court Identification

The admissibility of identification evidence hinges on reliability. See Hayes v. State,311 Ark. 645, 846 S.W.2d 182 (1993). Consequently, an unduly suggestive pre-trial identification procedure may not necessarily prohibit the admissibility of an in-court identification, unless we determine that the identification itself is not reliable. See id. A trial court is responsible for determining whether there are adequate indicia of reliability surrounding the identification to enable the State to use identification testimony as evidence. See Bishop, supra. Once the trial court determines that sufficient reliability exists, the jury decides what weight, if any, to give identification testimony. See id.

To determine if an in-court identification is suspect under the totality of the circumstances, the following factors are instructive: (1) the victim's prior opportunity to observe the alleged act; (2) the accuracy of the victim's previous description of the accused; (3) whether the victim identified another person before the pre-trial identification process; (4) whether the victim expressed doubt when identifying the accused; (5) whether the victim failed to identify the accused when given a prior opportunity to do so; and (6) the time interval between the alleged act and the confrontation. See Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995).

In Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995), the appellant contended that a victim's additional opportunity to observe him in jail and during a suppression hearing tainted her in-court identification. Our supreme court disagreed, noting that while it was arguable that the victim's two additional encounters with appellant were impermissibly suggestive, it could not say the trial court's ruling was erroneous given the victim's lengthy opportunity to view the appellant during the alleged act and the fact that the victim positivelyidentified the appellant from a photographic line-up before she encountered him in jail or at the suppression hearing. See Chenowith, supra.

Likewise, the appellant in Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996), challenged the reliability of a victim's identification. Again, our supreme court noted that the victim's observance of the shooter, who stood approximately two feet from the victim for approximately forty-five seconds, was sufficiently reliable. See Prowell, supra.

In Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995), our supreme court held that the failure of two witnesses to accurately describe their assailant did not in and of itself make an in-court identification suspect, when other factors demonstrated reliability. The witnesses described their assailant as approximately 6' tall, stocky, and having a gold tooth. In actuality, the appellant was 5'6" tall and had no gold tooth. See Mills, supra.

Appellant in the present case argues that Krissell's in-court identification was flawed because 1) Krissell failed to tell the police about a tattoo under appellant's eye, the gap between appellant's front teeth, and appellant's large nose, 2) Krissell observed the assailant at night in a poorly lit area while the assailant pointed a revolver in Krissell's face, 3) Krissell initially described the robber as 5'5" to 5'7" tall and weighing 140 to 150 pounds, and next described the robber as 5'6" to 5'8" tall with a dark complexion, and 4) Krissell had an additional opportunity to observe appellant during the suppression hearing. Our review of the totality of the circumstances indicates that the trial court properly applied the factors enumerated in Mills, supra, in reaching its decision to allow the in-court identification. First, Krissell had sufficient opportunity to observe appellant. Krissell testified that the incidentoccurred in a well-lit area and that the incident lasted approximately three or four minutes. He further testified that he and the robber were approximately eighteen inches or two feet apart, that the robber was leaning over toward the window, and that he could clearly see the robber's face. Krissell never identified another person as his assailant. He identified appellant within seconds, was positive in his choice of appellant, and expressed no doubt. It is significant that only three days elapsed between the incident and Krissell's initial identification of appellant, which, similar to the fact pattern in Chenowith, supra, occurred before Krissell observed appellant at the suppression hearing.

The only factor espoused in Mills, supra, which is not met in the present case concerns the accuracy of Krissell's prior description. Krissell initially described appellant as between 5'6" tall and 5'8" tall, and weighing 140 to 150 pounds. He did not mention the tattoo under appellant's right eye, appellant's large nose, or the gap between appellant's front teeth. The record indicates that appellant is actually 5'10" tall, weighs approximately 176 pounds and has a medium brown complexion. While there are discrepancies in the accuracy of Krissell's initial description of appellant, the discrepancies do not rise to a level that suggests the substantial likelihood of misidentification. When viewing the totality of the circumstances, we conclude that the trial court's ruling was not clearly erroneous. Therefore, we affirm.

Affirmed.

Stroud, C.J., agrees.

Neal, J., concurs.

Olly Neal, Judge, concurring. I agree with the majority that this case must be affirmed based upon the in-court identification of appellant by the victim. However, it is incumbent upon me to address the unnecessarily suggestive pretrial photo identification procedures utilized by the Stuttgart Police Department in preparing the photo lineup. A review of the actual photo lineup used in this case clearly demonstrates the infirmities in the procedure used for pretrial identification of appellant and the highly suggestive character of the lineup.

Appellant was convicted based solely on the victim's identification of him. David Krissell, with the aggregate of two descriptions, identified his aggressor as a black male with a dark complexion, between 5'6" to 5'8" tall, twenty to twenty-five years of age, medium build, and light mustache. He also stated that his assailant resembled late rap artist Tupac Shakur. Based upon this description, Sergeant Mark Duke of the Stuttgart Police Department prepared a photo lineup.

The lineup depicted six black males whose ages ranged from twenty-three to forty-two. Sergeant Duke testified that appellant was the only person in the photo lineup between the ages of twenty and twenty-five.1 In addition to the significant age differences, there were also obvious variations in the hair styles and facial hair worn by those photographed.

Mr. Krissell stated that "what really stood out about the man I picked was his eyes and his facial expression; he looks like Tupac Shakur to me. None of the other people in the photo lineup looked even remotely like Tupac Shakur. A couple were young guys, and Irecognized a couple I went to school with who were younger than me, and I'm thirty-seven now. . . . I'm not real good with ages, but I don't think any of the other people in the photo lineup appear to be twenty or twenty-five years old."

Keith Connell, lieutenant in charge of CID for the Stuttgart Police Department, testified at the suppression hearing that he "was not familiar with Tupac Shakur, but Sergeant Duke is half my age and was very familiar with him, so he put together a photo lineup, including one specific individual - the appellant." Connell also stated that Duke "picked appellant's photo because he thought he looked like Tupac Shakur," but he (Connell) did not know why Duke chose the other individuals' pictures. From his personal review of the lineup, Connell revealed that he didn't "think there [was] much difference in appearance between number 1 and number 2; but number 4 [had] a beard and Mr. Krissell didn't say anything about the robber having a beard." All he knew "is he [Krissell] said the robber looked like Tupac Shakur, and I don't know whether he [had] a beard." Further, Sergeant Duke testified at trial that "Mr. Krissell was never given the opportunity to view mug books or several other photos besides the ones in the lineup. Appellant was arrested because of the identification by Mr. Krissell from the photo lineup."

Both Sergeant Duke, through Lieutenant Connell's testimony, and David Krissell admitted that the appellant was chosen because he favored Tupac Shakur. Krissell admittedly recognized a couple of individuals in the lineup because they were people with whom he had attended school. There was such a disparity in the individuals depicted in terms of age, facial hair, and hair styles that it was almost inevitable that the appellant wouldbe chosen.

In the quest for truth and justice, law enforcement officers should at all times make an assertive effort to ensure that every aspect of the criminal justice process is fair and accurate. The grave disparities outlined above effectively destroyed any reliability in the pretrial identification.

1 In addition to the appellant, the photo lineup consisted of two persons age thirty-two, two persons age thirty-five, and one person age forty-two.