Bowden v. State , 297 Ark. 160 ( 1988 )

Steele Hays, Justice,

dissenting. I disagree with the majority that the appellant has demonstrated error in the trial proceedings that requires reversal of this conviction. The majority concludes that “since the police denied Bowden his Sixth Amendment right to counsel at the lineup, any testimony concerning the lineup identification by Joe Williams was, therefore, inadmissible at trial,” citing United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 23 (1967). But it is undisputed that the police told appellant that he had a right to have counsel present and they even exerted considerable efforts of their own to obtain counsel, contacting both the public defender (who represented appellant at arraignment), and twice contacting counsel who represented appellant at trial, all to no avail. Moreover, at no time did appellant invoke his right to be represented at the lineup by requesting counsel or by objecting to a lineup being conducted.

The majority is holding that on remand Joe Williams can identify the appellant as the man he saw in his service station in Conway, Arkansas, in the early morning hours after the murders of Cindy Bowden and John Hefty, but he may not testify to having identified him in a lineup. I respectfully suggest that the majority is drawing a distinction that makes little sense. I do not propose that on remand the witness should be permitted to testify that he identified the appellant from a lineup. That, I believe, is of little moment either way. What is important is whether the witness can point to the accused in the courtroom and tell the jury that is the individual he saw at such and such a time and place. Since the majority concedes it was not error for Joe Williams to do that, it seems appropriate to ask, why is the case being reversed? We do not reverse cases for another trial on abstract principles, but on prejudicial errors that affect the outcome of the trial. See Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985); Davies v. State, 286 Ark. 9, 688 S.W.2d 738 (1985); McFarland and Soest v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); and Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).I submit that if the witness can properly identify the appellant as the man he saw in his service station, it is wholly abstract on this record, to hold that the case must be reversed because he also testified appellant is the man he saw in a lineup.

Appellant, like the majority, cites Moore v. Illinois, 434 U.S. 220 (1977); United States v. Wade, 388 U.S. 218 (1967); and Gilbert v. California, 388 U.S. 263 (1967). Those cases do not hold that a breach of an accused’s right to have counsel at a lineup prevents a witness from so testifying, provided the evidence clearly shows the identification was based on the witness’s contact with the accused and not suggested by the lineup. Even in the latter instance, if the error can be declared harmless beyond a reasonable doubt the case should not be reversed. LaFave and Israel, Criminal Procedure § 7.3(f) (1984). Neither the appellant nor the majority examine the issue from the standpoint of harmless error. Where the evidence of guilt is convincing, even constitutional errors may be cured if it can be said beyond a reasonable doubt the error is harmless. Harrington v. California, 395 U.S. 250 (1969). Here, the two victims were murdered by someone with whom they were acquainted; there was no evidence of robbery or burglary as a motive; John David Hefley, aged 5, identified the appellant as being in the home of the victims at the time of the murders. Appellant’s thumb print was found on a coffee cup in the room with the victims. Appellant was seen in Conway, Arkansas by Joe Williams between two or three o’clock after the murders. Appellant was shown to have been driving a 1970 pickup with milk cartons in the back and a truck matching that description was seen leaving the house soon after sounds like shots were fired. The truck sped away and objects in the truck bed were heard to slide from one side of the truck to the other. I believe that proof, balanced against the asserted error, justifies a determination that the error complained of was harmless.