ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

WARREN LOONEY,

APPELLANT

STATE OF ARKANSAS,

APPELLEE

CACR01-1308

OCTOBER 22, 2003

APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT,

NO. CR99-177-1,

HON. JOHN DAN KEMP, JUDGE

AFFIRMED

Sam Bird, Judge

Warren Doug Looney was tried before a jury and was convicted of aggravated robbery. He was sentenced to thirty years’ imprisonment in the Arkansas Department of Correction and was ordered to pay restitution of $1200 to Tammy Mansfield, the cashier who was robbed the night of September 8, 1999, outside of Dugger’s Grocery Store. Looney raises two points on appeal. He contends that the trial court erred (1) in not granting his motion for mistrial due to improper in-court identification of him, and (2) in granting the State’s motion in limine to exclude all testimony related to pending charges against Shawn Blue, a witness for the State. We agree that the trial court erred in granting the motion in limine, but we find that the error was harmless. Therefore, the conviction is affirmed.

Identification of the Accused

Testimony was given by several witnesses regarding Mansfield’s inability to make a voice identification of Looney or to identify his picture in photographic lineups. Investigator Marshall Taylor of the Independence County Sheriff’s Department testified that Mansfield listened to a voice tape of Looney saying words reportedly used by the robber, that she was unable to say whether the voice sounded anything like her assailant, and that she was unable to identify Looney in a photographic lineup of six people. Mansfield testified that she had been unable to identify her attacker from a photo spread three hours after the incident. Officer Patrick Collins testified that Mansfield was unable to pick out Looney in three photographic lineups that Collins showed her a day or two after the robbery.

There was, however, testimony that Mansfield recognized Looney when he came into court for a pretrial hearing approximately nine months after the date of the robbery. She subsequently identified Looney in open court at his trial, and she testified that she had previously recognized him in the courtroom:

I felt like Doug over there was the person that robbed me that night. The hair color was right, the build was right. I remember most vividly the camouflage he had covering his face, and brown gloves. I wasn’t sure when I gave my statement to the police that he was wearing any gloves. . . . I said he was in his twenties or thirties, but I don’t know how I arrived at that conclusion. Because he was fast, I think. I told them that his hair was not one solid color. I thought I remembered telling them that it was salt and pepper, but evidently I didn’t. . . . In [my] statement, I said word for word that he had brown hair, curly shoulder length, not close to his head. I think it was even stuck down in the back of his collar.

I had seen him in the courtroom once before and I told my husband I felt certain that was the man. He was surrounded by other prisoners, I think five or six. All different shapes and sizes. I was waiting to see him that day, but I had no idea what he looked like. Prior to that I never identified anybody.

. . . .

It was his hair, his height and his shape that led me to believe that Mr. Looney was the person who accosted me that night. I also said something about his the way he walked. He was crouched at the front of my car and popped up and within two swift moves, he was right there. . . .

We will not reverse a trial court's ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). In determining whether an in-court identification is admissible, the appellate court first looks at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Id. It is appellant's burden to show that the pretrial identification procedure was suspect. Id.

Reliability is the linchpin in determining the admissibility of identification testimony; the appellate court does not inject itself into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). The following factors are considered in determining reliability:

(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.

322 Ark. at 658, 910 S.W.2d at 688.

Looney contends that Mansfield’s pretrial identification was impermissibly suggestive and that the in-court identification was unreliable. Looney argues that it is unknown whether he was the only Caucasian male; whether the others were short or tall; how newspaper stories and other forms of media may have affected the identification; and whether there were any factors to assure the fairness and reliability of the identification. Looney also argues that Mansfield’s pretrial identification, made when he was wearing a prison jumpsuit and walking in a row of defendants, “contradicted the previous description provided by this witness.” Regarding the in-court identification, Looney argues that the six factors of Mills v. State, supra, were not met.

We agree with the State that Looney has not met his burden of showing that the pretrial identification procedure was unnecessarily suggestive, and that because the police did not orchestrate the pre-trial identification, the subsequent in-court identification was not invalidated. See Van Pelt v. State, supra (rejecting appellant’s theory that a “show-up” procedure with deputies’ escorting only appellant into police station was unduly suggestive and tainted any further identification).

Mansfield’s descriptions of Looney, which he complains were in conflict, were presented as evidence at trial. It is for the jury to decide what weight should be given identification testimony, and the credibility of such testimony is for the jury to decide. Van Pelt v. State, supra; Mills v. State, supra. Furthermore, even if Mansfield’s testimony was improper, it did not result in prejudice warranting a mistrial.

Brice Greer identified a pistol introduced into evidence as the one that he and Andre Matthews found in the woods behinds Duggers’ Grocery three days after the robbery, and Randy Nash identified the pistol as one that he had given to Looney. Nash also testified that Looney had told him about pins in his watch, and that Looney had said that he was having a hard time keeping it on. Nash stated that the watch was similar to an Aqualite watch that was introduced into evidence through the testimony of Patrick Collins. Collins stated that he had found the watch at the crime scene in broken condition. Anita and Charles Ferrier each identified Looney at trial as the person who had been at their house shortly before the robbery with Rosetta Davis, his co-defendant at trial. Charles Ferrier testified that the house is about six miles from Dugger’s Grocery. Lieutenant John Ferguson and Deputy Cord Davidson testified that shortly after the robbery, Davis was waiting in a car on a dirt road a few hundred yards behind the store. Charles Oliphant testified that on the morning after the robbery he saw Looney, whose wrists were scratched, walking along a road five or six miles from the grocery. Thus, the jury had before it evidence other than Mansfield’s testimony identifying Looney as the perpetrator of this crime.

The trial court’s granting of the State’s motion in limine

For his second point on appeal, Looney contends that the trial court erred by granting the State’s motion in limine to prevent cross-examination of Shawn Blue related to criminal charges that were pending against her. At trial Blue testified that Looney had a gun like the .22 caliber Ruger and an Aqualite watch like the ones introduced into evidence, and that he was a turkey hunter. Because the purpose of cross-examining Blue was to establish the possible bias of the witness, we agree that the court’s ruling was in error. We also hold, however, that this error was harmless and thus is not grounds for reversal.

At a hearing on the motion, the prosecution informed the trial court that Blue was currently under felony charges for a variety of methamphetamine charges. The prosecution further informed the court that there were no plea offers and that she had told the prosecution the morning of trial that she expected nothing and had been promised nothing. The prosecution argued that questioning Blue about the charges would not be proper because it did not go to her credibility, while Looney argued that the subject of a plea and the prosecutor’s going lightly on her was “open game for questioning as far as credibility.” At trial Blue testified that the prosecuting attorney had not previously talked to her about Looney’s case, that she was not aware of any plea agreements in it, that nothing had been offered, that she had not been promised leniency in her pending case, and that the prosecuting attorney had told her earlier in the day that the outcome of her case would not be affected. Looney argued to the trial court that Blue’s anticipated testimony was a false story told to police on the day after she was arrested, and that the jury was entitled to hear testimony going to her motive and opportunity to lie in order to buy herself a better deal. He argues on appeal that the pending charges were exculpatory evidence and therefore admissible.

Evidence of guarantees of immunity or promises of leniency or other considerations given to a prospective witness are proper subjects of cross-examination, and the denial of that right may violate constitutional guarantees of confrontation. Sullivan v. State, 32 Ark. App. 124, 798 S.W.2d 110 (1990), citing Delaware v. Van Arsdall, 475 U.S. 673 (1986); Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989). The Sullivan court further explained:

However, the fact that it might have been error to deny the right to cross-examine on that subject does not necessarily mandate reversal. The denial of the right of cross-examination on such issues, like any other trial error, is subject to being found harmless under the circumstances of the particular case. Delaware v. Van Arsdall, supra; Klimas v. State, supra; Guinn v. State, supra. In Delaware v. Van Arsdall, the Supreme Court of the United States stated: Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. Van Arsdall, 475 U.S. at 684.

Sullivan v. State, 32 Ark. App. 124, 129-30, 798 S.W.2d 110, 114 (1990).

Even when a trial court errs in admitting evidence, when the evidence of guilt is overwhelming and the error is slight, the appellate court can declare that the error was harmless and affirm the conviction. Barrett v. State, ___ Ark. ___, ___ S.W.3d. ___ (September 25, 2003). To determine if the error is slight, we can look to see if the defendant was prejudiced. Id.

Randy Nash testified that a pistol introduced into evidence by the State looked like a .22 Ruger he had given Looney, and that the serial numbers were the same. As mentioned earlier in this opinion, Nash identified the pistol as that which he gave to Looney. Nash also testified that Looney had told him about the pins in his watch, and that Looney had said that he was having a hard time keeping it on. Mark Ingle, the manager of a pawn shop, identified the pistol introduced into evidence as one that was pawned by Blue and reclaimed in the months before the robbery; Ingle also testified that he had seen Blue and Looney in the store together. David Vest testified that he had told police officers about seeing Looney with a Ruger pistol a few days before the robbery and had seen a similar gun in Looney’s house. We agree with the State that Blue’s testimony regarding Looney’s ownership of the watch and the gun was cumulative to that of other witnesses. We also agree with the State that the only item in Blue’s testimony that was not cumulative, her testimony that Looney was a turkey hunter, did not identify him as the robber described by Mansfield: Blue testified that Looney never wore camouflage, while Mansfield said that camouflage had covered the robber’s face.

Finally, we agree with the State that even without Blue’s testimony, the evidence was sufficient for conviction. Mansfield identified Looney as her attacker and identified the Ruger pistol as similar to the one used against her. There was proof that Looney’s watch was found at the scene; that shortly before the robbery he was with Davis, who was in the apparent getaway car near the store shortly after it was robbed; and that Looney, with scratched wrists, was walking down the road the morning after the robbery.

Affirmed.

Gladwin and Robbins, JJ., agree.