The opinion
John I. Purtle, Justice, dissenting. Additional facts should be stated in order to have a comprehensive understanding of this case. There is no doubt whatsoever Ms. Sosebee’s home was burglarized by someone and that she was terrorized by that same individual. However, the individual who committed these acts is the one who should be punished, not someone who happens to look a lot like him.
One officer who investigated this crime stated that the hallway, where Ms. Sosebee encountered the intruder, was so dark at midafternoon that he had to use his flashlight to get around. Admittedly the victim did not get a good look at her assailant; shortly after the crime she told officers that she probably couldn’t identify him because he had a cloth over the lower part of his face. She did say that he was a white male in his mid-twenties, about five feet eight inches tall with brown hair, and wearing faded bluejeans and a light colored shirt. (This description no doubt fits many persons.) Understandably, the victim was looking at the gun, not her assailant’s face, as she went down the hallway. Although he was holding a cloth or handkerchief over the lower part of his face with his left hand, she did not see the name “Ted” tatooed across his fingers.
The first photographic lineup was held eight days after the crime. The victim identified the number six photograph as the robber. This photograph was of one Scott Middleton. The appellant’s photograph was number three in that same lineup. However, the victim did not identify the appellant as her assailant.
Sometime later a standup lineup was conducted and the victim indicated an individual in the number two spot looked the most like her assailant. The individual she identified was one Kenneth Newell. In fact the appellant was not even in that lineup. At that time the police suspected Terry Nichols was the thief in this case. It was Nichols’ car which had been seen in the neighborhood, and several of the items stolen from the house were found in his car.
When the third attempt at identification came around on August 15,1987, the victim picked out the appellant. By this time she had learned that Ted Graham was the one the police suspected of the crime. Meantime, it had been determined that the appellant had a tatoo not only across his left hand but on his right arm. At this lineup, the appellant was not wearing a shirt and his hair was longer than any of the others.
By the time the victim got to trial and saw the appellant seated at counsel’s table, there was no way on earth she could keep from identifying him, no matter how hard she tried to be unbiased by her previous misidentification of the appellant. By this time this man had become fixed in her mind as the person who had committed the crime. From the evidence presented I believe that she would have identified Nichols as her assailant if he had been the accused.
The second prejudicial error was allowing witness Schaffer to identify the appellant as the person he had seen in that neighborhood the day of the crime. Schaffer had reported a suspicious-looking car about a block from the home of the victim on the afternoon the crime was committed. He had described a person fitting the general description of Nichols and had told the police that the man driving the car had a beard. On this same date the victim had told the police that the person who committed the crime did not have a beard. By the time of trial, the appellant had grown a beard. Schaffer was excluded from the room during the trial but admittedly “peeped” into the courtroom some twenty to twenty-five times. He saw a person seated at the table with defense counsel and no doubt had no trouble convincing himself that the accused was indeed the man he had seen in the neighborhood the day of the crime. The fact that the accused was of the same general build as the person he had seen, and by the time of trial had a beard, made it all the easier for this witness to convince himself of the correctness of his identification. Aside from the fact that this witness mistakenly identified the accused as the man he had seen on the afternoon of the crime, Schaffer, like the other witnesses at the trial, was under “the rule,” and clearly violated the instruction of the court by “peeping” into the courtroom before he was called.
Whether we continue to review identification cases utilizing the standard “totality of the circumstances” or “clearly erroneous” or both, as we sometimes do, this case should be remanded for a new trial.
In Frensly v. State, 291 Ark. 268 , 724 S.W.2d 165 (1987), we stated: “Finally, the totality of the circumstances shows that the lineup was not unduly suggestive.” After discussing the discrepancies and weaknesses of the identification procedure in the trial court, we further stated: “These credibility factors, when considered in the totality of the circumstances, are not sufficient to make the trial court’s ruling clearly erroneous.”
Apparently the majority holds that appellate courts do not consider the totality of the circumstances when deciding this issue on appeal. If so, we should make it clear that we do not. It seems to me to be a ready made excuse for appellate courts to avoid ruling on the hard facts and law of a particular case. If prejudicial error has occurred we ought to remand a case for a fair trial. If not, we ought to say why and not evade the issue by stating that the “totality of the circumstances” require us to affirm or reverse the case. The phrase, it seems to me, sometimes is the reason given for stopping short of giving full effect to the law as it is written.
It is true, as the majority states, that I have stated the case in the terms of a defense lawyer. However, the majority has admittedly stated the facts from the view of a prosecutor. We should do neither. We should review the case from a perspective which will further the administration of justice and insure the statutory and constitutional rights of both the state and the accused. There should be a balancing process, giving due regard to the rights of all parties.