author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    Don William DAVIS v. STATE of Arkansas
    CR 92-1385
    863 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993
    [Rehearing denied November 8, 1993.]

      Tim R. Morris, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Don William Davis, was charged and convicted of the capital murder of Jane Daniel, burglary and theft of property. He was sentenced to death by lethal injection on the capital murder charge and given two forty-year sentences and two $15,000 fines on the burglary and theft of property charges. On appeal, Davis assigns to us the following issues for consideration: sufficiency of the evidence; whether the trial court erred in not granting funds for an independent ballistics expert, sociologist, and psychiatric expert; and whether the trial court erred in not granting a mistrial or an admonishment to the jury when the prosecutor made allegedly prejudicial comments in his closing argument. We affirm the trial court.

The facts before us are these: Sharon Haley, who with her husband Mike were also victims of a burglary and neighbors of the murder victim, testified that at about 4:15 p.m. on October 12, 1990, she returned home and found that her screen door was taped open and the wooden door between the garage and the kitchen standing open. When she entered the house, she noticed that a hand gun that had previously been on the bed table was gone and that a console television was pulled away from the wall and the wires disconnected. Fearful, she called the 911 emergency number from the garage phone and went to a neighbor’s house.

Once the police arrived, they asked her to take an inventory of her property. She noted the following items missing:

several guns and appliances, a videocassette recorder, a large Sharp convection/microwave, a thirteen inch Sharp television set, both of her jewelry boxes, an Amish quilt, an older model Realistic brand stereo component set, her wedding ring, antique locket, a small gold chain, a couple of ladies watches, a Mickey Mouse watch, diamond earrings, a set of sapphire earrings, pearls, pearl earrings, and a couple of costume black onyx earrings; her husband’s two high school class rings and one college rings; a cluster ring with pearls and rubies missing, a couple of silver rings with turquoise stones and a matching silver bracelet; silver herringbone chain; while gold ring with a pink zircon; costume choker; tools from the garage; a crossbow; her husband’s collection of Harley-Davidson t-shirts & leather jacket; Yankee and Penn State t-shirts; special run bottle of Wild Turkey liquor wrapped in a wooden box; and a bottle of Crown Royal.

Mike Haley testified concerning the many firearms and weapons stolen from their home during the burglary. His list included: a 410 shotgun, a .22 rifle, Marlin Model 39-A, with a banner scope, a Ruger M-77 6 mm deer rifle, a Stevens double barrel shotgun, a .44 magnum pistol with a scope and a Winchester Model 50, 20 gauge shotgun. Also missing were a crossbow and crossbow arrows as well as numerous types of ammunition for the firearms.

At about 10:00 p.m., the same day as the Haley burglary, the Haleys’ neighbor, Richard Daniel, returned home from a business trip and noticed the door of his garage into the kitchen hallway was open. As he entered the house, he saw a rice pan and bowl out in the kitchen, and it startled him when he noticed a Kool cigarette butt in the rice bowl (especially since neither he nor his wife smoked). Noting that the storeroom door was ajar, he entered to find his wife, Jane, lying on the floor in a pool of blood. She was lying with her head face down in a cardboard box towards the wall, obviously, dead. Like Mrs. Haley, Mr. Daniel called 911 for help.

Police attempted to trace Mrs. Daniel’s activities during the day. An employee of the Rogers Diagnostic Clinic testified that the victim came into the clinic around lunchtime to get a flu shot. Mrs. Daniel’s beautician, Gaye Tarron, testified that Mrs. Daniel had a standing appointment every Friday at 2:30 p.m. and had never skipped an appointment without calling first. On October 12, 1990, for the first time in ten years, Mrs. Daniel missed her appointment and did not call.

About two weeks after his wife’s death, Daniel and his daughter searched the house for missing items. They found that an expensive Lucien Piccard watch was gone as well as a couple of pearl necklaces, a gold rope necklace, and a matching gold necklace and bracelet. Also missing were a jewelry bag and a Nikon camera.

At the time of the murder, the appellant, Don Davis, was living with three roommates in a house in Bentonville. One of the roommates, Renee Davis, testified that during the time they were living together, Don Davis had been bringing stolen merchandise home. On the day of the murder, the appellant had come home sometime between 1:00 and 2:00 p.m. acting frightened, according to his roommates, telling his girlfriend and roommate, Susan Ferguson, that “somebody got hurt.” Property seen in his possession that day included a Realistic stereo, a number of guns, a black motorcycle jacket, a videocassette recorder, a television, a microwave, numerous t-shirts, and tools. Later that day the appellant allegedly admitted to Renee and Susan that “somebody had gotten killed” but emphasized that he did not do it claiming that he had been next door when the murder occurred. He said that he “didn’t know why he shot her, she was cooperating.” Among the many items of property Davis had in the car was a gun covered by a white towel. He told Renee that if she touched the “towel it would be her death sentence.”

According to Susan, Renee told appellant to get rid of the stolen property because she did not want it in her house; Davis left and returned about thirty minutes later explaining that he had dumped the property in the woods in a remote area. Four days after the murder a number of the items taken in the Haley burglary, as well as Mrs. Daniel’s house and car keys, were found in a remote area of Benton County. Renee told her other roommate, Dwayne, about Davis’s suspicious behavior and the stolen property. He urged her to go to the police.

Ultimately, the police arrived at Davis’s home to question Renee, and she and the other two roommates agreed to let them search the house. Among the many items discovered in the house was a .44 magnum Redhawk revolver, which the State later alleged was the murder weapon that killed Jane Daniel. Also discovered was the Amish quilt taken from the Haley residence. Inquiries at pawn shops in the area revealed that Davis had pawned many items taken from both the Haley and Davis residences.

By this time, Davis had fled the state by taking a bus to Las Vegas, Nevada and ultimately arriving in California. Witnesses from several pawn shops in Las Vegas testified that they had loaned the appellant money on goods he had pawned. These goods matched the description of goods stolen from the Davis and Haley households. Agents with the Federal Bureau of Investigation found the appellant in Albuquerque, New Mexico, and arrested him. While being arrested, Davis asked the agents for the cigarettes that had been in his car; he described them as Kool filter kings, the same brand of cigarette found at Mrs. Daniel’s house. Investigators also found Davis in possession of the black leather jacket stolen from the Haley house. Detective Steven Mark Russell testified that he travelled to Albuquerque to transport Davis back to Rogers, Arkansas, and once they arrived in Rogers, Davis specifically asked for some Kool cigarettes.

Violette Hnilica, forensic pathologist with the Little Rock Medical Examiners Office, also testified at the trial. After conducting an autopsy she concluded that Jane Daniel had died from a contact wound resulting from an execution-style murder by a large caliber weapon to the back of her head.

Jeff Beck, a latent prints examiner with the State Crime Laboratory, testified he had tested fingerprints found on the masking tape holding the inner garage door open at the Haley residence and concluded that the prints belonged to Davis.

Berwin Monroe, Chief of the Firearms and Tool Marks section and an explosives analyst with the Arkansas State Crime Lab, also testified for the prosecution. He performed tests on the fragments of a metal jacket bullet removed from the victim and determined that this bullet was shot from the .44 magnum revolver discovered at Davis’s place of residence. State Crime Laboratory Firearms Examiner, Ronald Andrejack, corroborated Monroe’s findings.

I. Sufficiency of the Evidence

For his first argument on appeal, Davis contends that the evidence was insufficient to support his capital murder conviction. We hold to the contrary.

Based on Burks v. United States, 437 U.S. 1 (1978), where the United States Supreme Court held that the double jeopardy clause precludes a second trial when a conviction in a prior trial was reversed solely for lack of evidence, we have held that preservation of an appellant’s right to freedom from double jeopardy requires a review of sufficiency of the evidence prior to a review of trial errors. Luckach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Davis complains that the evidence was insufficient because it was almost all circumstantial. However, circumstantial evidence can be enough to sustain a conviction:

The law makes no distinction between circumstantial and direct evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). For circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis consistent with innocence. It is up to the jury, however, to determine whether the evidence excludes every hypothesis. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). The matter of premeditation and deliberation and intent may all be inferred from the circumstances. An instant of premeditation is enough to sustain a conviction.

Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992).

Our legislature has defined capital murder as:

A person commits capital murder if: (1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular, piracy, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to human life.

Ark. Code Ann. § 5-10-101 (a)(1) (1987)(emphasis added).

Here, the evidence is more than sufficient to prove that Davis murdered Jane Daniel while burglarizing her home. The gun, which ballistics experts determined shot the bullet that killed Mrs. Daniel, was found in Davis’s place of residence. Two of his roommates testified that they had seen him with the gun and noticed that he was very agitated. Further, Davis’s roommate, Renee, testified that on the day Davis returned home with property later identified as coming from the Daniel and Haley houses, he had admitted to her that someone had died during the course of a burglary. In fact when she tried to pick up the gun he was carrying in a towel, he threatened, “it would be her death sentence.”

Property taken from both the Haley and Daniel homes was seen in Davis’s possession by his roommates and various pawnbrokers, in and out of state. For example, Renee Davis testified that she had discovered a green and brown drawstring jewelry bag containing pearls. (This was later identified as the victim’s bag and jewelry). A Kool cigarette butt was left at the crime scene and the appellant was known to smoke this specific brand of cigarettes. Equally telling was the fact that the gun used to kill Jane Daniel was identified as having been stolen from the Haley home and was left by appellant in his former residence.

Also incriminating is the fact that Davis fled the scene and went out of state after the murder. This court has held that an appellant’s flight to avoid arrest can be considered as corroboration of evidence tending to establish his guilt. Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989). In sum the evidence implicating Davis is overwhelming.

II. Ballistics Expert

For his next argument, Davis submits that the trial court erred in refusing his formal motion asking for funds to employ Donald Nittskoff, a ballistics expert, to assist in the preparation of his defense. He contends that it was fundamentally unfair to be denied this expert’s assistance because the State had to prove that the bullet fragments and casing found at the murder scene were shot from a stolen gun in order to prove him guilty beyond a reasonable doubt. We disagree with Davis’s assertions and that the trial court erred.

Prior to trial, Davis petitioned the trial court to furnish funds to provide for the employment of experts in the fields of ballistics, sociology, and psychiatry, as well as funds for an investigator to assist in the preparation of his defense. The trial court ordered the State to fund the employment of the investigator and denied the requests for the funding of the various experts.

Obviously it is impossible to establish a black-letter rule for determining whether an indigent defendant was denied a fundamental right to an effective defense because of the trial court’s refusal to grant public funds to hire an expert. In psychiatric expert defense cases, we have held that in order for an expert to be appointed, the defendant must make a preliminary showing that his sanity at the time of the offense is to be a significant factor at trial. See Day v. State, 306 Ark. 520, 816 S.W.2d 852 (1991); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991); Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). This is understandable as the defendant has a presumption of sanity to overcome in cases where sanity is an issue.

However, in other situations involving experts, where there is no presumption to overcome, this court has not employed the significant factor requirement. Instead, we have provided examples of insufficient grounds for obtaining an expert but have not, thus far, specified what would constitute an adequate basis. Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984); Pickens v. State, 279 Ark. 457, 652 S.W.2d 626 (1983); and Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982).

In Cessor we noted that the trial court did not err in denying appellant’s motion for an additional ballistics expert when the defendant did not name the ballistics expert he wished to employ or support his contention by showing what, if anything, an additional ballistics expert could offer on his behalf. Our holding in Cessor suggested that, if a defendant furnished the trial court with these specifics, his request for an expert should be granted.

Here, Davis, in his motion for employment of the firearms expert, named his expert, asked the State to expend some $4,000 in funds for his expert’s employment, and explained to the court that his expert would test and help analyze the bullet fragments and shell casings and would help analyze, interpret, and assist him in understanding the State’s ballistic evidence for all purposes, including effective cross-examination of the State’s two ballistic experts, Berwin Monroe and Ronald Andrejack of the State Crime Lab. Yet, Davis failed to make a showing of an ascertainable need in his motion or at the hearing on the motion. At the hearing, it was apparent to the trial court that counsel had not interviewed or had any discussions with the State’s experts, as the following exchange between counsel and the court reveals:

Court. All right. Well, the Court’s position in regard to these two matters is that — and I gather, Mr. Morris and Mr. Martin, that you-all have not as of yet interviewed or had any discussion with the experts from the State Crime Lab in regard to either one of these issues.
Defense. No, sir, that’s correct, your Honor.
Court. Well, at the state that this is in at this point in time to authorize that to the Court would simply — there simply seems to be a financing of a fishing expedition and I deny the motion.

Davis’s counsel and his investigator subsequently interviewed Monroe and Andrejack, and Davis elected not to renew his motion or to show to the court the defense’s specific need for utilization of a ballistics expert. In that light, we hold that there was no error in the trial court’s decision to deny the request for a ballistics expert. Simply put, the request was premature. To hold otherwise would be to grant license to defense attorneys to obtain experts for their indigent clients without a showing of an ascertainable need.

III. Sociologist Expert

As mentioned previously, prior to trial, Davis’s counsel filed a motion asking the trial court to authorize funds so that he could employ a sociologist to conduct a study to determine whether death-qualified juries are constitutional, but, at a hearing on this motion, the court refused. On appeal, Davis claims that this refusal was a violation of his Sixth and Fourteenth Amendment rights under the United States Constitution.

Clearly, as Davis points out, fundamental fairness entitles indigent defendants to “an adequate opportunity to present their claims fairly within the adversary system.” Ross v. Moffitt, 417 U.S. 600, 612 (1974). However, Davis wanted the funds to pay for the sociologist to pursue a moot point.

This court has on numerous occasions rejected the notion that death-qualified juries are unconstitutional. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), cert. denied 466 U.S. 988 (1984). The United States Supreme Court has also rejected this argument, holding that death-qualified juries are constitutional. Lockhart v. McCree, 476 U.S. 162 (1986).

Citing McCree for support, Davis has based his argument that the trial court erred on the premise that the United States Supreme Court in McCree reached its decision that death-qualified juries are constitutional because the sociological studies with which it was presented were deficient. The Court noted, in this regard:

Having identified some of the more serious problems with McCree’s studies, however, we will assume for purposes of this opinion that the studies are both methodologically valid and adequate to establish that ‘death qualification’ in fact produces juries somewhat more conviction prone than non-death qualified juries. We hold, nevertheless, that the constitution does not prohibit the states from death qualifying juries in capital cases.

McCree, 476 U.S. at 173.

It is evident that the United States Supreme Court was not basing its opinion on the presumption that the studies were deficient. The court enumerated the fifteen studies presented, pointed out the problems with each study, and then determined that even if the studies had not been deficient, death-qualified juries would still be deemed constitutional.

Thus, the conclusion cannot be made from Davis’s argument that his proposed sociological study would have unearthed a new result. As a result, this argument is meritless.

IV. Psychiatric Expert

Davis also claims that the trial court erred in not granting funds for a psychiatric expert arguing that, although State Hospital psychiatrists examined him, these examinations were deficient because doctor/patient communications were not privileged.

Davis received a psychiatric evaluation at state expense from the Ozark Guidance Center. The psychiatrist there concluded that there was a lack of psychosis but that David did have attention-deficit hyperactivity disorder residual, which could have contributed to the commission of the offenses.

Subsequently, Davis, joined by the State, filed a motion for psychiatric evaluation at the Arkansas State Hospital, which was granted. The resulting medical report revealed no psychoses but did indicate a psychoactive substance abuse and antisocial personality disorder.

Next, Davis asked the court for funds to employ an independent psychiatric examiner, which the court refused to do. Case law supports the trial court’s decision. This court has held that it is not error for the trial court to refuse to grant an appellant’s motion for a psychiatric examination by a private psychiatrist at state expense. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984). Perhaps most persuasive is the recent case of Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992):

With respect to the question of a defendant’s sanity at the time an offense was committed and competency to stand trial, this court has held that the statutorily provided review by a state hospital is sufficient. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). As previously stated, the appellant was examined by such a facility and found to have no problems with his sanity. The appellant is in fact arguing that he should have been allowed the “opportunity to have a second opinion.” Again, the Supreme Court did not hold in Ake that a defendant has the constitutional right to choose a psychiatrist of his personal liking or to shop around to find one who will support his insanity defense.

Sanders, 308 Ark. at 183, 824 S.W.2d 353, 356.

In light of these cases, we conclude that the trial court did not err in refusing to approve funding of a private psychiatric evaluation for Davis after approving two previous evaluations.

V. Allegation of Prosecutorial Misconduct

This final issue arises from comments that the prosecuting attorney made to the jury during his closing arguments in the penalty phase of the trial:

I would suggest to you that the murder, the crime that the Defendant did in this case — his actions represent one of civilized society’s worst nightmares, a situation in which in broad light of day, in the middle of the day, in a peaceful neighborhood here in Northwest Arkansas, with a housewife/grandmother coming home to fix her lunch, feeling totally safe in the sanctuary of home that she instead was faced with an armed and bold, calculating and ruthless criminal who saw her cross the street and decided this was a chance for some quick easy money and grabbed up his gun and drove over there and went in specifically looking for her. This wasn’t one of those deals where they were trying to burglarize a house and accidentally stumbled upon somebody that’s in there, or even that they came home, which is another reason to consider the seriousness of the burglary of Mike and Sharon [Haley], What if Sharon had come home? What then?

The trial judge’s control of such remarks during closing arguments is discretionary and will not be reversed in the absence of an abuse of discretion. For example, in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), the prosecutor asked the jurors to impose the death penalty and to “tell Ron Wilson he will never commit another murder.” Wilson, 295 Ark. at 690, 751 S.W.2d at 739. The trial court refused to do anything about the remark, and this court agreed with its decision explaining that “The court’s ruling. . .about the remark was discretionary, and in the absence of an abuse of discretion, will not be reversed.” Id. We found no abuse of discretion, having determined that the request was made in the context of urging the jurors to “act as a group in imposing the sentence. In context, it did not suggest that there was evidence from which it could be determined that Wilson would kill again.” Wilson, 295 Ark. at 690, 751 S.W.2d at 739. This analysis applies to the facts at hand, for the prosecutor’s remarks about Davis are similar to the prosecutor’s statements in Wilson.

Other jurisdictions have held that, in the penalty phase of a capital murder case, both parties should be given wide latitude in arguing the matter of punishment. State v. Feltrop, 803 S.W.2d 1 (Mo.banc 1991); State v. McDonald, 661 S.W.2d 497 (Mo.banc 1983). Although this court has never specifically adopted this rule, we have held that counsel should be allowed some leeway with respect to opening and closing remarks. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). The trial court has wide latitude of discretion in controlling the arguments of counsel, and its ruling in that regard will not be overturned in the absence of abuse. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957; Shaw v. State, 271 Ark. 926, 611 S.W.2d 522 (1981). We have also held that improper statements by a prosecutor in his opening argument are cured by an instruction to the jury that remarks of counsel are not evidence and, unless supported by evidence, should be disregarded. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). Under the circumstances, we hold that the trial court did not abuse its discretion.

Lastly, we undertake a proportionality review of all death penalty cases to insure that the sentence is not imposed in a freakish, capricious, or whimsical manner. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992), cert. denied, 112 S.Ct. 3043 (1992). Here, the victim, while in her home in the middle of the day, was shot execution-style in the back of the head with a large-caliber weapon. Numerous items were taken from her home. The robbery-murder in this case is similar to the robbery-murders in Johnson v. State, 308 Ark. 1, 823 S.W.2d 800 (1992); Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); and Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) that were punished with the death penalty. The death penalty in this case was not freakishly or arbitrarily applied.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined, and this review has uncovered no prejudicial errors warranting reversal.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur to update the history of our review of capital cases contained in Robertson v. State, 298 Ark. 131, 765 S.W.2d 936 (1989) (Hickman and Glaze, JJ., concurring), Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (Hickman, J., concurring), and Ruiz and Denton v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (Hickman, J., concurring).

Since Robertson, we have upheld the imposition of the death sentence in the following cases: Ruiz and Denton v. State, 299 Ark. 144, 772 S.W.2d 297 (1989) (affirmance of imposition of death sentence after resentencing proceeding). (After escaping from an Oklahoma prison, Ruiz and Denton kidnapped, robbed and shot to death the Magazine, Arkansas, town marshall and a Corps of Engineers employee.); Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989), cert. denied, 498 U.S. 883 (1990) (affirmance on retrial after case reversed and remanded by this court on capital murder conviction in Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); petition for post-conviction relief denied, Parker v. State, CR88-95 (February 18, 1991). (Parker shot to death his former wife’s parents.); Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), cert. denied, 497 U.S. 1011 (1990) (affirmance of imposition of death penalty after second resentencing proceeding); petition for post-conviction relief denied, Pickens v. State, CR 89-94 (December 17, 1990), cert. denied, 497 U.S. 1011 (1991) (Pickens shot and killed a customer in a convenience store robbery); Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 499 U.S. 913 (1991); petition for post-conviction relief denied, Wainwright v. State, CR 89-79 (January 13, 1992). (Wainwright shot to death a convenience store clerk in an robbery.); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), cert. denied, _U.S__, 112 S.Ct. 102 (1991). (Coulter raped and murdered a five year old child.); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). (Johnson bludgeoned to death a night watchman); and Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993). (Henderson murdered the owner of a furniture store during a robbery.)

Petitions for post-conviction relief were also denied in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). (Whitmore robbed and stabbed to death an elderly woman at her home.); and Starr v. State, CR 87-20 (November 12, 1989), cert. denied, 489 U.S. 1100, 110 S.Ct. 1327 (1990). (Starr sexually assaulted and bludgeoned to death a woman at her home.)

We granted post-conviction relief in part in O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989). We stayed the appeal of an order in O’Rourke and remanded for consideration by the trial court of whether O’Rourke was competent to abandon his post-conviction appeal. O’Rourke v. State, 300 Ark. 323, 778 S.W.2d 938 (1989). We subsequently granted the State’s motion to dismiss the post-conviction appeal. O’Rourke v. State, CR 89-145 (January 14,1991). This court then denied a motion filed by O’Rourke to reinstate the appeal of the order denying post-conviction relief. O’Rourke v. State, CR 89-145 (February 24, 1992). (O’Rourke murdered his mother and father.)

The judgment and death sentence were reversed and remanded in Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990). On retrial, the defendant was convicted of second degree murder and sentenced to twenty years imprisonment.

We affirmed the judgment of conviction but reversed the death sentence and remanded the case for resentencing in Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992). The death penalty was again imposed and is on appeal to this court. (Sanders robbed and shot to death a Hot Spring County couple.)

We reversed and remanded the case for retrial in Duncan v. State, 309 Ark. 218, 831 S.W.2d 115 (1992), and in Mauppin v. State, 309 Ark. 235, 831 S.W. 104 (1992). On retrial, Mauppin was again convicted of capital murder but sentenced to life imprisonment without parole.

In Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992), we affirmed in part and reversed in part and remanded the case for resentencing. Ward was. again sentenced to death and the sentence is on appeal to this court. (Ward murdered a convenience store clerk.)

We reversed and remanded Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993).

We also reversed and remanded the case of Johnnie Michael Cox v. State to the trial court for appointment of counsel and post-conviction proceedings. Cox v. State, 305 Ark. 488, 807 S.W.2d 665 (1991). The judgment and death sentence in Cox were ultimately affirmed by this court. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). (Cox’s three victims died from a combination of injuries received when he stabbed and strangled them and then set afire the apartment they were in.)

We affirmed the judgment and sentence in Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). (Sheridan stabbed to death a pregnant woman.)

The death sentence has been executed in four cases since Robertson: Ronald Gene Simmons v. State, John Edward Swindler v. State, Rickey Ray Rector v. State, and Steven Douglas Hill v. State. (Simmons shot and killed several persons in a shooting spree. This court upheld his right to waive a direct appeal of his conviction and death sentence. Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988); Swindler killed a Ft. Smith police officer; Rector killed a Conway police officer; and Hill, who had escaped from the Arkansas Department of Correction, shot and killed an Arkansas State trooper who was attempting to arrest him.)

It was noted in the concurring opinion to Robertson in 1989 that several cases appeared to have disappeared into the federal judicial machinery. Now, four years after Robertson, it is notable that two of the cases mentioned remain in the exact same posture. The cases of Eddie Lee Miller, affirmed by this court in 1981, and Clay Anthony Ford, affirmed in 1982, remain in the United States District Court on pending petitions for writs of habeas corpus. The habeas corpus petitions in the two cases have languished in the district court for nearly twelve years in the Miller case and more than ten years in the Ford case. In the case of Darrell Wayne Hill, affirmed by this court in 1982, the district court granted the petition for writ of habeas corpus after it languished for approximately ten years. The matter is now on appeal by the state to the Eighth Circuit Court of Appeals. (Miller murdered a storekeeper in a robbery; Ford, an escapee from the Tennessee Department of Correction, shot and killed an Arkansas State Police trooper; Hill kidnapped, robbed, and shot two men in a robbery of a service station, one of the men died.)


source: Caselaw Access Project

author: Robert H. Dudley, Justice. Robert L. Brown, Justice, Steele Hays, Justice,

license: Public Domain

text:
    Dennis William HILL v. STATE of Arkansas
    CR 93-213
    862 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      George Steel, Jr., and Henry C. Morris, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A confidential informant told law enforcement officers that appellant was manufacturing phenylacetone, a Schedule II controlled substance, at the residence of David and Shawna Smillie in Nevada County. Acting on that information, the officers executed an affidavit for a warrant to search the Smillie’s residence. The magistrate issued the warrant. The officers searched the house and found appellant with the equipment and chemicals used to produce phenylacetone, commonly called P2P, which is the immediate precursor to amphetamine and methamphetamine. The stench of chemicals in the equipment was strong, and some of the phenylacetone and its by-products were still warm at the time of the search. Appellant was charged with “Manufacturing or Possessing With Intent to Manufacture or Deliver a Schedule II Controlled Substance,” see Ark. Code Ann. § 5-64-401 (Supp. 1991), and with “Using or Possessing With Intent to Use Drug Paraphernalia”, see Ark. Code Ann. § 5-64-403 (1987). The jury found appellant guilty of both charges, and the trial court entered judgments of conviction for both crimes. We reverse both judgments because of trial error and remand for a new trial on both charges.

Before trial, appellant filed a motion to suppress the evidence, and in the motion asked that the State be required to disclose the name of the confidential informant. The trial court denied the motion. In a subsequent oral motion the appellant’s attorney stated that his defense would be entrapment, and, for purposes of that affirmative defense, it would be necessary for him to know the name of the confidential informant. The trial court again denied the motion to compel disclosure. At trial, after the State’s case-in-chief, appellant took the stand, and in his affirmative defense admitted that he had possessed the paraphernalia with the intent to manufacture a chemical and did, in fact, manufacture in excess of four hundred grams of the controlled substance. He then testified that the only reason he committed the crime was because Ronnie Prescott offered him $10,000.00 to manufacture an illegal chemical. He also testified that Prescott supplied the flasks, vessels, other necessary equipment, and the needed chemicals, and, in a one-hour course, showed him how to manufacture the desired chemical. Appellant admitted that he understood he was manufacturing an illegal chemical, but denied that he knew it was a Schedule II substance. He stated that he “never messed with it before and hadn’t since, and won’t ever again.” He testified that he later learned that Prescott was working for the State as an informant, and that Prescott had entrapped him so that the State would reduce some criminal charges that were pending against Prescott. In sum, appellant testified that Prescott entrapped him in order to get some charges reduced and to stay out of the penitentiary. Other witnesses, including police officers, confirmed that Prescott was cooperating with the police during the material period, gave information in some other cases, and received consideration for his cooperation in a charge that was pending against him. After this proof, appellant’s attorney moved for the trial court to compel the State to disclose whether Prescott was a confidential informer. The trial court refused to order the State to disclose whether Prescott was the confidential informant.

In an effort to prove his affirmative defense, appellant called a witness, Gary Creed, who testified that he had heard Ronnie Prescott tell appellant that he had a way for appellant to make some fast money. The State objected to the testimony, and the trial court sustained the objection on the basis of hearsay. Appellant assigns the ruling as error. The argument is well taken. A.R.E. Rule 801 (c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial. . . offered in evidence to prove the truth of the matter asserted.” Here, appellant offered the testimony of the witness to show that the statement was made to entrap appellant. It was not offered to prove truth of the statement made by Prescott, that is, that he would have, in truth, paid appellant some fast money. Since the statement was not made to prove the truth of the matter asserted and therefore was not hearsay, the ruling of the trial court was in error. In a similar case, Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978), we said that any statement made by an undercover agent to the accused, which is indicative of the fact that the agent was using persuasion to induce a normally law abiding person to deliver controlled substances, was admissible, not to show the truth of the agent’s statements, but to show that they were made and perhaps entrapped the accused. See also Wilson v. State, 261 Ark. 5, 545 S.W.2d 636 (1977). In another similar case, United States v. Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989), the Fifth Circuit Court of Appeals held that the trial court committed reversible error in refusing to allow the defendant to testify, in support of his entrapment defense, that a paid confidential informant, who did not testify at trial, consistently pressured him to secure customers for the informant’s illicit drug activities. The court held that the informant’s statements were not hearsay because they were not offered to prove the truth of the matter asserted. The court wrote: “The statements were not offered as an assertion of fact, but, rather, as the fact of an assertion.” Id. at 1137. Similarly, it has been written, “the words are offered, not for their truth, but merely to show the fact of their expression.” 4 J. Weinstein & M. Berger, Weinstein’s Evidence § 801(c)(01), at 801-93 (1993), quoting from Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L. J. 229, 233(1922). The erroneous ruling in the case at bar was critical to appellant’s affirmative defense and was prejudicial. Accordingly, we must reverse.

We address other points for the guidance of the trial court upon retrial of the case. During the cross-examination of defense witness Bailey, the prosecuting attorney asked if the witness had heard that appellant and his brother at another time and place had run an illicit drug laboratory. The witness responded that he had not heard such a statement. The prosecutor then asked the witness if he knew appellant and his brother “got caught” at such an operation. During cross-examination of another defense witness, Joe Thomas, a police official, the State was allowed to expand on the incident and was allowed to prove that the raid at which appellant “got caught” was a raid on the home of appellant’s brother where drug paraphernalia and chemicals were found and, as a result, charges were filed against appellant’s brother. At the same time, the police found some traces of marijuana and amphetamine on appellant’s wife and, as a result, charges were filed against her. Some type of charge was filed against the appellant as a result of the incident, but he was subsequently acquitted of the charge.

The trial court was faced with a situation in which appellant testified, as part of his affirmative defense, that he did not know how to manufacture drugs and had never done so either before or after his arrest. It would be a perversion of A.R.E. Rules 403 and 404(b) to hold that the State could not rebut this testimony, and we have so held. McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986). However, on retrial the State should not be allowed to introduce evidence of mere charges against appellant or other defense witnesses, and good faith on the part of the State should be required before the prosecutor is allowed to question appellant in any way about any incident of which he was acquitted.

Appellant contends that the trial court erred in refusing to compel the State to disclose the name of the confidential informer. The trial court obviously intended to give effect to the “informers’ privilege.” Under it, disclosure shall not be required of an informant’s identity where his identity is a prosecution secret, and a failure to disclose will not infringe upon the constitutional rights of the defendant. Roviaro v. United States, 353 U.S. 53 (1957). “When the disclosure of the informant’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 61-62. In determining whether the privilege shall prevail, the trial court must balance the public interest in getting needed information against the individual’s right to assert a defense. The trial court must consider the crime charged, the possible defenses, the significance of the informant’s testimony, and any “other relevant factors.” Id. at 61. The burden is upon the defendant to show that the informant’s testimony is essential to his defense. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973). Here, appellant first asked that the name of the informant be ordered disclosed in his pre-trial motion to disclose identity. He offered no evidence to show that the informant was a participant in the search or how the informant’s testimony would have aided his defense. Thus, the ruling was correct at the time. Treadway v. State, 287 Ark. 441, 700 S.W.2d 364 (1985). Much the same can be said for his first motion made during the trial. Appellant simply did not show that the name of the informant, whoever he or she might be, was essential to a fair determination of his case. However, the facts that were to be weighed by the trial court changed considerably after appellant testified that he was entrapped by Ronnie Prescott, and after appellant elicited testimony from officers that Prescott was working as an informant for the police at all material times. After this proof, appellant moved that the State be compelled to disclose if Prescott was the informant in this particular case. The trial court refused to compel the State to disclose if Prescott was the informant in this case. This ruling was in error. In weighing the relevant factors at this point in the trial, it was now public information that Prescott was an informant. This information was no longer a prosecution secret. The State had no real interest in protecting the disclosure of Prescott’s identity, and, if the State had been compelled to state whether Prescott was the informant in this case, it might have been a substantial factor in appellant’s affirmative defense. In sum, the trial court’s rulings regarding disclosure of whomever might have been the informant were correct. However, the ruling was in error when appellant’s counsel limited the request to disclosure of whether Ronnie Prescott was the informant and it had already been shown that disclosure might be a substantial factor in his defense.

Prior to trial, appellant filed a motion requesting the trial court to dismiss one of the charges because “to bring defendant to trial on both charges constitutes double jeopardy.” During trial he orally made the same motion. Appellant now argues that the trial court erred in refusing to dismiss one of the charges because both convictions arose out of the same continuing course of conduct. He contends that his use of drug paraphernalia and manufacturing a controlled substance are one continuous offense that constitutes only one offense. The ruling of the trial court was eminently correct as the issue was presented.

Appellant argues that the trial court’s ruling was in error because Ark. Code Ann. § 5-1-110(a)(5) (1987) provides that a defendant may not be convicted of more than one offense if the defendant’s conduct constituted an offense defined as a continuing course of conduct, and the defendant’s course of conduct was uninterrupted. The argument overlooks basic elements of the statute. The statute begins, “When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not be convicted, however of more than one offense. . . .” Ark. Code Ann. § 5-1-110(a) (1987) (emphasis added). We have repeatedly interpreted this statute to mean that a defendant may be prosecuted for more than one offense, but, under specified circumstances, a judgment of conviction may only be entered for one of the offenses. Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). Perhaps the best example of the way the statute is intended to work is in the case where a prosecutor is entitled to go to the jury and ask for conviction on the greater or the lesser offense, and the jury might find a defendant guilty of both the lesser included offense and the greater offense. Under the statute, the trial court should enter the judgment of conviction only for the greater conviction. The purpose of the statute in such a case is to allow a conviction of the lesser included offense when the accused is not convicted of the greater offense, but the trial court is clearly directed to allow prosecution on each charge. Section 5-1-110 of the Arkansas Code Annotated works in the very same way with a continuing offense. The original commentary to subsection (a)(5) provides that it “prohibits multiple convictions for an uninterrupted course of conduct that violates a statute defining a continuing offense.” (Emphasis supplied.) The commentary then gives nonsupport or promoting prostitution as examples of continuing offenses. See 1988 Supp. Original Commentary to Ark. Code Ann. § 5-1-110 at 496.

Upon retrial, if appellant is again convicted on both charges, appellant will likely move to limit the judgment of conviction to one charge. Only at that time will the trial court be required to determine whether convictions can be entered in both cases.

Appellant makes other arguments that we do not address as they are either procedurally barred or else they are wholly without merit, and a discussion of them will not be of assistance to the trial court upon retrial.

Reversed and remanded.

Hays, J., dissents.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I agree that this conviction must be reversed owing to the error in disallowing the testimony of Gary Creed relating to entrapment. However, I disagree that it was error for the circuit court to refuse to divulge the name of the confidential informant who gave information leading to the search warrant.

This is not your typical case where “informer’s privilege” is involved. Here, appellant Hill testified that it was Ronnie Prescott, who entrapped him into manufacturing controlled substances by offering him $10,000 to do so. He further testified that he learned that Prescott was working for law enforcement as an informant because Prescott wanted to avoid criminal charges against him. Four law enforcement officers associated with the State Police or the Drug Task Force or the Federal Drug Enforcement Administration also testified at trial that Ronnie Prescott had been cooperating with them. Drug Enforcement Agent Wes Sossaman stated that this cooperation had gone on for nearly two years. He also testified that Prescott was not prosecuted on the charge of drug manufacturing relating to Dennis Hill.

With all of this testimony, it was clear that Prescott was cooperating with law enforcement. Hill, therefore, was not prejudiced or hampered in the slightest in making his case that law enforcement, utilizing Prescott, entrapped him. What the circuit judge did refuse to order was the release of the name of the confidential informant who provided information relating to the search warrant. That, however, was a separate matter and totally irrelevant to the defense of entrapment.

In short, Dennis Hill testified that Ronnie Prescott was cooperating with law enforcement and had entrapped him with an offer of $10,000 to manufacture drugs. Law enforcement confirmed the fact that Prescott was cooperating with them. And his defense counsel vigorously argued Prescott’s cooperation with law enforcement and the defense of entrapment by a drug enforcement operative to the jury. I see no reason under these facts to require law enforcement to furnish the name of the person who gave them part of the factual basis for the search warrant. Certainly, Hill has presented no persuasive reason as to how this information would enhance his entrapment defense or, otherwise, as to how his constitutional rights have been infringed upon by not having this information. Ark. R. Crim. P. 17.5(b).

In my judgment, it was not error for the circuit court to refuse to require confirmance of whether Ronnie Prescott was the informant for the search warrant.

Steele Hays, Justice,

dissenting. I respectfully disagree with the Court’s holding that the testimony by Gary Creed was not hearsay. The majority has chosen to read A.R.E. 801(c) narrowly so as to allow the statement as “corroboration” testimony. I believe the testimony was offered to prove that Pres.cott had actually made an offer of “fast money” to the appellant. The significance of the statement hinges on whether Prescott did in fact make such a proposition to the appellant, not simply whether Prescott had made a statement. Therefore, the testimony was plainly an attempt to prove the truth of the matter asserted; otherwise, the testimony would not be relevant to the defense of entrapment.

Further, I believe the trial judge properly refused to order the state to disclose whether Prescott was the confidential informant. The state still has an interest in protecting the precise relationship between the government and an individual even after the identity of the informant may have been discovered. United States v. Sharp, 778 F.2d 1182 (6th Cir. 1985), cert. denied, 475 U.S. 1030. See also, United States v. Paoli, 603 F.2d 1029 (2nd Cir. 1979), cert. denied, 444 U.S. 926. In short, the appellant failed to adequately demonstrate at trial that disclosure of the identity of the informant was essential to his defense. In this context there was no abuse of discretion by the trial court and the judgment should be affirmed.


author: Robert H. Dudley, Justice.

text:
    Tracy Lovell PATRICK v. STATE of Arkansas
    CR 93-475
    862 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Robert P. Remet, for appellant.

      Winston Bryant, Att’y Gen., by: Clementine Infante, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was found guilty of kidnapping, burglary, aggravated assault, and battery. He makes two arguments on appeal. We do not reach the first, there is no merit in the second, and, accordingly, we affirm.

Appellant’s first point of appeal does not specify a trial court error, but merely states, “Appellant was not identified beyond a reasonable doubt as a perpetrator.” The argument is based either on appellant’s motion to suppress the witnesses’ identification of him, or on the sufficiency of the identification evidence; but, in either event, is procedurally barred. The argument is perhaps predicated on appellant’s motion to suppress any in-court identification because a photographic lineup was unduly suggestive. However, there is nothing in the abstract to indicate that a ruling was made on the motion. The burden of obtaining a ruling is upon the movant, and unresolved questions and objections are therefore waived and may not be relied upon on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Because appellant did not obtain a ruling on his motion to suppress, he is barred from raising the issue on appeal. Burnett v. State, 299 Ark. 553, 560, 776 S.W.2d 327, 331 (1989).

The argument is more likely predicated on the sufficiency of the evidence because, in his argument, he contends in part that witnesses did not have the ability to identify him in court. If this is his argument, it is also procedurally barred. To preserve a challenge to the sufficiency of the evidence in a jury trial a defendant must move for a directed verdict both at the close of the prosecution’s evidence and at the close of the case. A.R.Cr.P. Rule 36.21 (b). We have repeatedly held that failure to so do results in a waiver of the issue. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917(1991).A directed verdict motion must be a “specific motion to apprise the trial court of the particular point raised.” Middleton v. State, 311 Ark. 307, 309, 842 S.W.2d 434, 435 (1992). To preserve an issue for appeal, that issue must be stated clearly and specifically to the trial court. Parette v. State, 301 Ark. 607, 616, 786 S.W.2d 817, 822 (1990). At the close of the State’s case, appellant moved to dismiss either the kidnapping charge or the aggravated assault charge on the basis of continuing conduct. See Ark. Code Ann. § 5-1-110(a)(5) (1987). Immediately thereafter, appellant moved to dismiss the battery charge on either of two grounds: first, the injury was not sufficient to constitute battery in the first degree, and, second, the evidence would not support accomplice liability. He did not move for a directed verdict because the evidence used to identify him was insufficient. After all of the evidence, he “renewed” his motion for a directed verdict “on the same basis as announced at the close of the state’s case.” Appellant did not give the trial court an opportunity to rule on the sufficiency of the identification evidence, and, as a result, an appeal on the issue is procedurally barred. Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985).

Appellant’s second assignment of error involves the trial court’s refusal to grant a mistrial. The facts leading to the ruling are as follows. Six armed men together committed these crimes. The prosecutor was attempting to show that appellant was one of the six and asked the investigating officer about an interview with appellant at the time appellant had been returned to Arkansas from Washington. Most of the details focused on appellant’s identification; questions relating to size, hair style, date of birth, and place of residence. The prosecutor next asked the officer to read a statement from appellant about where he was on the date in question, and then the prosecutor asked, “Were other suspects developed in this case?” The officer answered, “Steven Glover, which has pled guilty, and.......” Appellant objected and moved for a mistrial. The trial court denied the motion for a mistrial but admonished the jurors not to consider the statement about another person pleading guilty. The prosecutor did not bring the matter before the jury again.

Here, the trial court could reasonably conclude that the question was asked in good faith since it is undisputed that six men together committed these crimes. The trial court could also reasonably conclude that the question was not designed to show guilt by association, but rather to show that appellant was indeed one of the six persons who committed the crime. The trial court could additionally conclude that the reference to a guilty plea by another person was volunteered by the officer, was not in direct response to the question, and that it caused prejudice, but not such prejudice that it could not be cured by an admonition. In such case, the trial court has discretion to determine whether an admonition to the jury is sufficient to cure the prejudice, or whether it is necessary to grant a motion for a mistrial. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

Appellant cites the cases of Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987) and Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), and argues that we have reversed trial courts for abuse of discretion in refusing to grant mistrials and that we should do so in the case before us. We decline to so do. Neither of the cited cases has facts comparable to the facts of the case at bar. In each of the cited cases, the prosecutor asked a highly prejudicial question and did so without any legitimate reason. The trial court refused to grant a mistrial. As a result, we reversed and remanded for a new trial. Here, the question had a legitimate basis; it was the extra information volunteered in the answer that caused the prejudice, and the trial court concluded that its admonition was sufficient to cure that prejudice. The ruling did not constitute an abuse of discretion.

Affirmed.


author: Steele Hays, Justice.

text:
    Randy James JONES v. STATE of Arkansas
    CR 92-1361
    862 S.W.2d 242
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Randy James Jones was tried and convicted of the murder of David Cains. He was sentenced to life imprisonment without parole. On appeal he raises two points for reversal. We affirm the judgment of conviction.

The salient facts, given from the state’s perspective, are these: Expected to testify in a drug trial the following day, David Cains was murdered in the yard of his Pottsville home about 6:30 on the morning of September 4,1991. The weapon used was a rifle with telescopic sight. Cains’s eleven-year-old daughter, Chrissy, and fourteen-year-old son, Davey, witnessed the murder. Davey saw a man come from behind a tree with two guns. Chrissy heard shots, saw her father fall to the ground and watched as a man fired a third time at pointblank range. The man fled in Cains’s blue Ford van. Several neighbors observed the incident from some distance and assumed that David Cains was shooting a dog. The man was described as tall, slender, with dark hair and wearing a white tee shirt and blue jeans. About forty-five minutes later, appellant entered a liquor store at the Blackwell exit on Interstate 1-40 and bought a package of cigarettes. He was wearing blue jeans but no shirt.

Sheriffs deputies recovered three spent cartridges from a .270 rifle in the yard and, not far away, a stolen black pickup truck containing a gun case. Less than an hour after the murder police located the van abandoned near the liquor store at the Blackwell exit. In the adjacent woods were found a .270 rifle with scope and a .45 calibre pistol. Around three o’clock that afternoon, the appellant was apprehended in the woods. A lineup of six individuals was conducted and Chrissy and Davey Cains readily identified appellant as the man who shot their father. Fibers from the rifle were matched to the gun case in the stolen pickup truck. The owners of the pickup, rifle, and gun case identified those objects as belonging to them and as having been stolen in the vicinity of Conway prior to the crime.

I

Jones submits it was error for the trial court to deny his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).

The general rule with respect to the sufficiency of the evidence is that the evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989).

To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). This becomes a question for the fact-finder to determine. Id. In determining whether there is substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). Guilt may be proved, even in the absence of eyewitness testimony, and evidence of guilt is no less substantial because it is circumstantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).

The evidence connecting Randy Jones with the crime was both circumstantial and direct. Chrissy Cains identified appellant at the lineup and again in the courtroom. She said there was no doubt about his identity. Appellant points out that because she saw the perpetrator for less than thirty seconds and only from the side, her testimony is unreliable. But these are issues for the jury. Coley v. State, 304 Ark. 304, 801 S.W.2d 647 (1991).

Circumstantially, appellant’s presence at the liquor store soon after the crime and at the time of his arrest, the location of the rifle and pistol, the matching fibers of the rifle and gun case, the proximity of the gun case and black pickup to the Cains’s residence, even the fact that appellant appeared to be fleeing from arrest, are factors the jury could consider in determining appellant’s guilt. Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989). Additionally, at the time of his arrest appellant had a distinctive one-half inch diagonal abrasion just above the bridge of his nose. A sheriffs investigator experienced in weaponry testified that the kick of a high-powered rifle, when equipped with a telescopic sight, tends to leave “an ignorant mark” consistent with the mark on appellant’s forehead.

The evidence recounted above pointed convincingly to the appellant as the perpetrator, in the light of which, we can conceive of no other reasonable hypothesis consistent with appellant’s innocence and we therefore affirm the ruling of the trial court as to the sufficiency of that evidence.

II

Second, appellant maintains the trial court erred in refusing to allow an expert witness to testify concerning factors affecting eyewitness perception. Appellant submits the only direct evidence linking appellant to the murder of David Cains was the lineup and courtroom identification by an eleven-year-old child, Chrissy Cains, and the lineup identification by Davey Cains, whose evident limitations led the trial court to exclude his testimony at trial. When Davey, who was described as slow, was called to the witness stand, the defense objected on grounds of competence. The trial judge reserved a ruling but after questioning Davey found his answers so unresponsive that he declined to permit Davey to testify. When the state later rested, the defense moved that earlier testimony that Davey had identified appellant at the lineup be stricken. The motion was denied.

Appellant proffered the testimony of Dr. Ira Bernstein, a professor of psychology and an authority on eyewitness perceptions and the effect of misconceptions. Dr. Bernstein has identified certain factors as influencing eyewitness perception, among them: expectation, confidence, judgment, attentional selection, stress, visibility, etc. The state objected and the trial court sustained the objection after determining that Dr. Bernstein’s proposed testimony was general rather than specific to the identification of Chrissy and Davey Cains.

This issue was addressed recently in Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). We noted that the trial court has wide discretion in evidentiary matters and we found no abuse of discretion in refusing such testimony on the ground that it was a matter of common knowledge and would not assist the trier of fact. We quoted with approval language from Criglow v. State, 183 Ark. 407, 365 S.W.2d 400 (1931):

The question whether these witnesses were mistaken in their identification, whether from fright or other cause, was one which the jury, and not an expert witness, should answer. This was a question upon which one man as well as another might form an opinion, and the function of passing upon the credibility and weight of testimony could not be taken from the jury. [Citations omitted.]

Appellant does not ask us to overrule Utley; rather, that we should recognize an important distinction between the two cases. In Utley, defense counsel was able to cross-examine the eyewitness on the reliability of the identification, whereas in the case at bar, the jury was told that Davey Cains had picked appellant out of a lineup yet the defense had no opportunity to cross-examine Davey Cains. Appellant cites A.R.E. 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

We first point out that appellant’s reference to Rule 702 is raised initially on appeal. Beyond that, the issue rests with the discretion of the trial court and for a number of reasons we cannot say that discretion was misused. The jury was told that Davey had picked appellant from one lineup, but was also told by a defense witness that at a later time Davey had picked someone other than the appellant. Moreover, the defense had permitted two witnesses for the state, Officer Aaron Duvall and Deborah Lay, to testify without objection that Chrissy and Davey had picked the appellant out of the lineup. In sum, we do not believe that expert testimony touching only generally on factors which influence eyewitness perception was so essential to the jury that its exclusion constitutes an abuse of discretion.

In oral argument appellant referred to Daubert v. Merrell Dow Pharmaceuticals, Inc., _U.S._, 113 S.Ct. 2786 (1993), decided after briefs were filed in this case. Daubert is a civil case in which the plaintiffs allege that birth defects were caused by Bendectin, a product of the defendant. The District Court dismissed the claims by summary judgment, finding that the plaintiffs’ expert testimony failed to meet the applicable “general acceptance” standard within the scientific community. The Court of Appeals affirmed on the strength of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). On appeal, the Supreme Court reversed, holding that Frye was superseded by Rule 702 of the Federal Rules of Civil Procedure.

We have no criticism of the Daubert case. Indeed, this court previously reached the same conclusion in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), rejecting the Frye standard for the relevancy approach implicit in A.R.E. 401. However, Daubert has little relevance to this case. Expert testimony in Daubert was critical to a determination of whether Bendectin was the cause of birth defects, and was excluded, not because it would not assist the jury, but upon the erroneous conclusion that it lacked general acceptance by the scientific community. That was not a factor here.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Finding no error, we affirm the judgment.


author: David Newbern, Justice.

text:
    Sharon BARR, Individually and as Friend of and for “Jane Doe”, a Minor v. Jim RICHARDSON and Brotherhood Mutual Insurance Company, Inc., Insurer of Harlan Park Baptist Church, Inc.
    92-1469
    862 S.W.2d 253
    Supreme Court of Arkansas
    Opinion delivered October 5, 1993

      Boyd Tackett, Jr., for appellant.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles and Gail O. Matthews, for appellee.
   David Newbern, Justice.

We must dismiss this appeal because not all of the claims against all of the parties have been resolved, and there has been no certification pursuant to Ark. R. Civ. P. 54(b) that there is no need for delay in deciding the case with respect to the parties now before us.

The appellant, Sharon Barr, sued Brotherhood Mutual Insurance Company, Inc., the insurer of Harlan Park Baptist Church, and the former pastor of the Church, Jim Richardson, for negligence. The negligence asserted was the failure of the Church with respect to its duty to provide safe, ethical, and competent counseling for a congregant. Ms. Barr alleged her daughter, while a member of the congregation of the Church, entered into a counseling relationship with Richardson which developed into a sexual liaison and resulting pregnancy.

Summary judgment was awarded the insurance company on the ground that its limited liability policy covering the church did not cover the negligence alleged. Nothing presented to us shows the claims against Richardson to have been resolved.

When multiple parties are involved, Ark. R. Civ. P. 54(b) permits a trial court to enter a judgment which is final “upon an express determination, supported by specific factual findings, that there is no just reason for delay.”

The failure to comply with Rule 54(b) presents a jurisdictional issue which we will raise on our own, and absent compliance, we dismiss the appeal for lack of a final order. State Farm Mut. Auto. Ins. Co. v. Thomas, 312 Ark. 429, 850 S.W.2d 4 (1993); Pardon v. Southern Farm Bur. Cas. Ins. Co., 312 Ark. 198, 848 S.W.2d 412 (1993).

Appeal dismissed.


author: Tom Glaze, Justice. Robert L. Brown, Justice.

text:
    Gary CLOIRD, Kurt Morris & Roosevelt Burton v. STATE of Arkansas
    CR 93-284
    862 S.W.2d 211
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993
    [Rehearing denied November 8, 1993.]

      Robert Remet, for appellant Gary Cloird.

      William M. Howard, Jr., for appellant Kurt Morris.

      Bynum & Kizer, by: Maxie Kizer, for appellant Roosevelt Brown.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.

      Brown, J., would grant rehearing on severance issue.

   Tom Glaze, Justice.

Appellants Kurt Morris and Roosevelt Burton were convicted of kidnapping and rape. The third appellant, Gary Cloird, was convicted of rape and of theft of a van which occurred the same evening as the rape. All three appellants claim error and request reversal. Because we find no errors warranting reversal, we affirm all three convictions.

On the evening of January 25, 1992, the victim entered a nightclub called PJ’s in Pine Bluff where she had a number of drinks and met Kurt Morris and Roosevelt Burton. Later they decided to go to another club named Bad Bob’s. The three got into a car driven by Morris with the victim and Burton in the back seat, and instead of going to Bad Bob’s, they went to a trailer near Humphrey, Arkansas. During the trip to the trailer and then inside the trailer, the victim testified that, without her consent, Morris and Burton forced her to have oral, vaginal, and anal sex. She also testified that a gun barrel and a screwdriver handle were inserted into her rectum. During this time, Cloird entered the trailer and was alleged to have forced the victim to have sexual intercourse. The next day on January 26, the appellants returned her to Pine Bluff. The three appellants were subsequently arrested, tried and convicted by jury. For clarity, we will discuss each appeal separately.

Kurt Morris v. State

Kurt Morris was charged by amended information with kidnapping and rape. Prior to trial, Morris filed a motion for continuance and a motion to sever his case from Burton’s and Cloird’s. Both motions were denied. At trial, Morris’s defense was based on the victim consenting to sexual intercourse with him. He was found guilty and sentenced to twenty years imprisonment for kidnapping and thirty years for rape, to run consecutively. On appeal, Morris argues that the trial court abused its discretion in denying his motions.

On the first day of trial, August 24, 1992, Morris filed a motion for a continuance stating that on August 17, he had requested a subpoena for a potential witness, Randy Williams, but on August 20, he discovered that, due to an incorrect address, Williams had not been served. Williams was a friend of the victim’s, and had given a statement to the police on January 28 which Morris claimed contradicted the victim’s version of the events on January 25 and 26. According to the motion, Williams had moved from the address to which service was attempted. The motion was accompanied by a “witness statement” signed by-Williams, witnessed by a police officer, and dated January 28, 1992. The record is bare of an objection by the state to the motion, and of any arguments made by the parties or rationale for the court’s denial.

Citing Ark. R. Crim. P. 27.3 which provides in part that a continuance shall be granted only upon a showing of good cause, Morris argues that the testimony that Williams would have given was material and relevant to his case. Further, because William’s testimony went directly to the credibility of the victim, Morris urges such testimony would have had a direct impact on the outcome of the trial. Morris, however, failed to provide an affidavit to accompany his motion as required by Ark. Code Ann. § 16-63-402(a) (1987) which reads as follows:

A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove and not merely show the effect of the facts in evidence, that the affiant himself believes them to be true and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement.

We have consistently interpreted this statute as requiring the presence of an affidavit in order to justify a continuance due to a missing witness. King v. State, No. CR93-266, slip op. (Ark. Sup. Ct. Sept. 20, 1993); Henderson v. State, 310 Ark. 287, 835 S.W.2d 865 (1992). Further, the denial of a continuance when the motion is not in substantial compliance with the statute is not an abuse of the trial court’s discretion, and the burden is on the appellant to establish prejudice and abuse of discretion in denying the continuance. The factors to consider in exercising discretion over continuance motions are:

(1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.

Id. at 292, S.W.2d at 868 (cites omitted).

By omitting the affidavit, Morris’s counsel failed to show his diligence in obtaining the appearance of Williams since Morris knew as early as January 28, 1992, that Williams was a potential witness. Despite this, Morris delayed locating Williams and learned only four days prior to trial that Williams had moved and could not be served. Nothing was presented to indicate that Williams had avoided service or that his whereabouts were not easily discoverable. Because Morris failed to support his motion as required and to produce a record upon which we can evaluate the soundness of the trial court’s decision, we cannot say the trial court erred in denying his motion for continuance.

Turning to the second point, the record reflects that, on August 14, Morris filed a motion for severance of trial from that of Burton and Cloird. Ark. R. Crim. P. 22.3 provides as follows:

(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the' prosecution intends to offer the statement in evidence at the trial. If so, the court shall require the prosecuting attorney to elect one of the following courses:
(i) a joint trial at which the statement is not admitted into evidence;
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or
(iii) severance of the moving defendant.

Morris cites Chappell v. State, where the Court of Appeals stated:

The issue of severance is to be determined on a case by case basis, considering the totality of the circumstances, with the following factors favoring severance: (1) where' defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; (7) where circumstantial evidence against one defendant appears stronger than against another.

18 Ark. App. 26, 37, 710 S.W.2d 214 (1986) [citing McDaniel v. State, 278 Ark. 631, 638, 648 S.W.2d 57, 60 (1983)]. Morris bases his argument to support severance on a number of the seven factors including: antagonistic defenses, difficulty in segregation of the evidence, lack of substantial evidence, and deprivation of peremptory challenges. Additionally, Morris argues that his request for severance from Cloird should have been granted because Cloird had been convicted of burglary and theft.

To support severance based on antagonistic defenses, Morris points to the fact that statements of Burton implicating Morris were read into the record by police officers at the trial. He argues that these statements in effect amounted to an antagonistic defense, and for this reason the trial court erred in denying him a severance. The state argues that because Morris’s name was deleted and not mentioned by the officers when reading Burton’s statement, he has failed to show how the trial court failed to comply with Rule 22.3(a).

Rule 22.3(a)(ii) provides for deletion of the defendant’s name from a codefendant’s statement if such deletion will not prejudice the moving defendant. Morris presents no argument that the statements as entered into evidence without reference to him were improper. Concerning the other factors raised and argued in support of his severance argument, the record reflects those matters were never argued below and thus cannot be considered by this court. Morris does argue Cloird had a prior criminal record but Cloird’s convictions were never mentioned or presented to the jury.

At the close of the trial, the jury was instructed to consider the evidence for or against each defendant separately and render their verdict as if each were tried separately. There is nothing in the record or in Morris’s arguments to indicate that the jury was not able to follow this instruction. Because Morris has failed to show any abuse of discretion by the trial court or prejudice to his case, we affirm.

Roosevelt Burton v. State

Roosevelt Burton was charged by information and convicted of kidnapping and rape. He was sentenced to five years imprisonment for kidnapping and ten years for rape with the sentences to run consecutively. On appeal Burton challenges the admission of certain testimony by Tremaine Parker.

Parker, an acquaintance of the three appellants, testified for the state. During the state’s questioning, Parker stated that Gary Cloird told him that Burton took rings off of the victim’s fingers. Burton’s counsel objected, and stated that, while Cloird could testify to what Burton said, Parker’s testimony was hearsay since Parker was not a co-conspirator or codefendant. On appeal, however, Burton’s argument involves a non-hearsay contention that the court’s application of Ark. R. Evid. 801 (d)(2)(v) was in error because Cloird’s statement pertaining to Burton’s action was not made in the course and furtherance of a crime. Because an appellant may not change his grounds for objection on appeal, Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991), this point is not preserved on appeal. However, even if the point had been preserved and error had occurred, the error was harmless since the same evidence was introduced by the victim when she testified that Burton took one of her rings.

Affirmed.

Gary Cloird v. State

Gary Cloird was convicted of rape and theft of property, and sentenced to thirty years imprisonment for the rape conviction and five years imprisonment and a $1000 fine for theft of a van. The sentences were to run consecutively with each other and with any sentence he was then serving. Cloird was acquitted of the kidnapping charge.

Cloird challenges the sufficiency of the evidence on appeal. However, he failed to renew his motion for a directed verdict at the end of all the evidence. To preserve a challenge to the sufficiency of the evidence on appeal, the appellant must move for a directed verdict both at the end of the state’s case-in-chief and again at the close of all the evidence. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993); Ark. R. Crim. P. 36.21(b) (1993).

Cloird also challenges the pretrial identification procedure, but failed to make a timely objection below. An argument for reversal will not be considered in the absence of an appropriate objection. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.

Holt, C.J., and Brown, J., concurring in part and dissenting in part. Dudley, J., not participating in Burton v. State.

Robert L. Brown, Justice.

I agree with the affirmances relating to Gary Cloird and Roosevelt Burton but would reverse the conviction of Kurt Morris and remand for a new trial.

Appellant Kurt Morris moved for severance of his trial from that of appellant Roosevelt Burton prior to trial on the basis of antagonistic defenses. It was denied. He renewed the motion after the State rested:

APPELLANT: Your Honor, again, I would also like to make a record on my motion for severance that was filed August 14, asking that my client’s case be severed from the defendants and the Court has advised me that it was going to deny that motion.
THE COURT: The Court did deny that motion for severance, yes.

In his brief on appeal, Morris argues that Burton’s statement in effect accused Morris of the crime. I agree.

Captain Dennis McVay of the Pine Bluff Police Department testified that he took statements from both Kurt Morris and Roosevelt Burton. McVay’s testimony came later than the testimony of the victim who described the criminal activity of Morris and Burton in detail.

Captain McVay proceeded to describe Burton’s statement generally and then to read from portions of it. Though Kurt Morris’s name was not mentioned, it is clear from the statement and from the victim’s previous testimony who the “other individual” mentioned in the statement was. The “other individual,” namely Morris, is painted as the primary culprit by Burton while Burton makes exculpatory comments about himself to the effect that he was trying to get the other person “to let her go” and that he, Burton, “had nothing to do with it.” Morris in later testimony denied any culpability.

In sum, the defenses of the two defendants were clearly antagonistic. Deletion of Morris’s name from Burton’s statement did not have the envisioned salutary effect as the identity of the other person was obvious. Burton in effect said Morris did it, and Morris denied it. The defenses of the two joined defendants were antagonistic, and Morris was seriously prejudiced by the joinder. It is evident from our rules that severance is warranted when name deletion does not cure the problem. Ark. R. Crim. P. 22.3(a)(ii).

Because of the error in denying severance, I would reverse the conviction of Kurt Morris and remand for a new trial.

Holt, C.J., joins.

       Burton stated that the crime was committed by Morris and that he, Burton, tried to protect and help the victim. Further, Burton stated that he was afraid of Morris.


author: Tom Glaze, Justice.

text:
    Charles LEE v. STATE of Arkansas
    CR 93-602
    862 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered October 4, 1993

      William R. Simpson, Jr., Public Defender, by: Thomas B. Devine III, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Charles Lee was charged and convicted of the capital murder of Phillip Cordova and aggravated robbery. He was sentenced to life imprisonment without parole for capital murder. The sole issue on appeal is whether the pretrial photographic spread used to identify Lee was unnecessarily suggestive and violative of his due process rights, requiring its suppression as well as the in-court identification. Because we find Lee’s argument without merit, we affirm his conviction.

An eyewitness to the murder, Leigh Sharp, testified that she and Cordova drove into a parking lot around 1:30 a.m. on August .7,1992, and she became nervous when she realized they were in a “bad part of town.” While stopped there, she saw two men approach Cordova’s truck twice and offer to sell cocaine to Cordova which he declined. On the second attempt at a sale when Lee told Cordova to “drop the money”, Sharp testified that when she leaned forward in the truck, she saw Lee shoot Cordova with a pistol. Sharp, who had been sitting on the passenger’s side of the truck, left the cab and went around to the driver’s side to help Cordova. Sharp testified that a third male then approached the passenger’s side of the truck and she saw the man take the wallet she had left on the seat of the truck. Further, she was able to describe Lee and the other two suspects and what they were wearing. The other two suspects were picked up shortly after the crime ánd their clothing matched the clothing described by Sharp. Additionally, the man who Sharp said took her wallet had blood on his shirt and hands when he was apprehended.

At trial, Gary Jackson testified that Lee came over to his house and told him that he was thinking about robbing someone to get money. Jackson further testified he saw Lee again that night at the parking lot and later, around 2:30 a.m. or so, Lee ran over to Jackson’s house with a .22 gun and said he had just shot someone. Additionally, Manee Settles, who Sharp identified as the one who took her wallet, testified Lee shot Cordova.

In Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981), we held that when a pretrial photographic identification is followed by an eyewitness identification at trial, the conviction will be set aside only if the photographic show up was so suggestive as to create a substantial possibility of irreparable misidentification. Accordingly, factors to be considered in determining the reliability of a lineup identification are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. The corrupting effect of the suggestive identification itself is weighed against these factors, and whether the identification procedure is violative of due process is determined from the totality of the circumstances. See also Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). Our review of the record reflects the evidence overwhelmingly supports Sharp’s identification of Lee as the one who shot Cordova. Further, her identification of Lee from the photospread was not suggestive and thus could not taint her in-court identification.

For support, Lee cites Foster v. California, 394 U.S. 440 (1969). There, the eyewitness was unable to make a positive identification at the first lineup where Foster was placed with men considerably shorter than he. Even after the eyewitness met one-on-one with Foster, the identification was tentative with the eyewitness still indicating he was not sure Foster was the one. At a second lineup the eyewitness was finally convinced Foster committed the crime and positively identified him. Foster was the only subject who was used in both lineups. The Supreme Court reversed the conviction, holding the procedure “so undermined the reliability of the eyewitness identification as to violate due process” by making the ultimate identification of Foster “virtually inevitable”. Id. at 443.

In our case, the photospread in question was composed of six photographs of young males, showing front views of their heads. All of them appear to be dressed in orange overalls. It is evident that at least four men in the photospread have a sign hung around their necks, and of those four, part of the sign is visible in three of the photographs. Lee’s photograph is one of those three.

Lee argues that his photograph differs from the other two because, while the letters “LRPD” appear on the sign in those, his photograph is the only one in which an identification number is also visible. He further argues that the procedure leading to the identification by Sharp is tainted because it occurred three days after the crime, after she had already been shown two photospreads on the day of the shooting, and was unable to identify anyone as being involved in the crime. Finally, he argues that Sharp’s in-court identification of him should be suppressed because it was based solely on her identification at the photo-spread.

Lee’s reliance on Foster is without merit. From the record, it is clear that the trial court made its determination based on all the evidence presented. The following factors lending reliability to Sharp’s identification of Lee are: (1) she had the opportunity to observe Lee both from a distance as he approached the truck twice, and at close range when she leaned forward in the truck and had eye-contact with him; (2) evidence was presented that the parking lot was well lit and Sharp’s level of attention was heightened because of concern about her safety in the particular neighborhood; (3) the accuracy of Sharp’s prior description of two of the assailants and their clothing was verified by the police, and she was able to identify all three suspects from three photospreads; (4) Sharp identified Lee’s photograph immediately and without hesitation; and (5) the identification of Lee took place only three days after the crime.

Unlike the appellant in Foster, Lee’s photograph was used in only one photospread. In another photospread, which does not contain Lee’s picture, there were also six photographs and part of a number is visible in only one of them. From this photospread, Sharp identified the man who was with Lee on Cordova’s side of the truck. That man’s photograph is not the one in which the number appears. Thus, this evidence demonstrates that the display of a number alone was not suggestive, and, in this case, did not result in the inevitable selection of Lee’s photograph because a number was visible. In addition, Sharp testified that she never noticed any letters or numbers in the photographs when she identified Lee.

Finally, because Lee’s photograph was not included in the first two photospreads, he is unable to argue that Sharp’s identification of him was suggested by the previous photospreads. Witnesses testified Sharp was distraught and in shock immediately following the crime, and Sharp, herself, testified that she did not even remember seeing the photospreads at that time.

It is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide what weight the identification testimony should be given. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984). The preliminary ruling by the trial court is on a mixed question of law and fact and will not be reversed unless clearly erroneous. Gonzales v. State, 301 Ark. 98, 782 S.W.2d 359 (1990); Banks v. State, 283 Ark. 284, 676 S.W.2d 459 (1984). Based on the totality of the circumstances, we find no error by the trial court in determining that Sharp’s pretrial identification of Lee was sufficiently reliable, and not suggestive or tainted as violative of due process. Therefore, neither the pretrial identification nor the in-court identification of Lee warranted suppression.

The record has been reviewed and no prejudicial errors were found in rulings adverse to Lee. Affirmed.