Cromwell v. StateCromwell v. State
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- Smith
Cromwell was convicted by a jury of attempted capital murder, with a sentence of life imprisonment, and of aggravated robbery, with a sentence of imprisonment for 25 yeаrs. He argues two grounds for reversal.
The two offenses occurred, as part of the same incident, on October 19, 1978. On that day a man entered a small grocery store in Little Rоck, used a pistol to hold up the proprietor, Willie Woods, and took the money in the cash register. The robber then ordered Woods to get down behind the counter. When Wоods was almost prone the robber shot him in the chest, in what seems to have been intended as an execution type killing. The shot, however, was not fatal. Woods described his аssailant to the police and at the trial some 11 months later he identified Cromwell as the criminal. Cromwell testified that he was elsewhere at the time of the incident and had nоthing to do with it.
First, it is contended that paragraph (1) (a) of the capital murder statute is void for vagueness.
The appellant, in arguing the void-for-vagueness doctrine, relies upon the rule that the legislature must set-reasonably clear guidelines for law enforcemеnt officials and triers of fact, to prevent arbitrary and discriminatory law enforcement, Smith v. Goguen, 415 U.S. 566 (1974), and upon the companion principle that a vague law impermissibly dеlegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory aрplication. Grayned v. City of Rockford, 408 U.S. 104 (1972). It is insisted that our statutes are therefore void for vagueness, because tar prosecuting attorney or the trier of fact may arbitrarily decide whether an accused is to be charged with or convicted of capital murder, a capital offense, or muder in the first degree, punishable by imprisonment оnly.
This argument, as applied to our statutes, is not sound. In the cases cited the statutes themselves were vague, leaving enforcement to the selective whim of the poliсeman, prosecutor, judge, or jury. For instance, in Goguen the court held that the language, “publicly . . . treats contemptuously the flag of the United States,” did not define the offensе with sufficient precision to give adequate warning of what conduct was prohibited. The definition of the offense was therefore being delegated to the law enforcеment officials, who in that case sought to convict Goguen for having worn a small United States flag sewn to the seat of his trousers.
Here, by contrast, the appellant does not complain that the language of our statutes is vague. Those statutes, in plain words, prohibit one from causing the death of any person in the commission of various felonies, which are defined elsewhere in the Code, the other statutory language, “under circumstances manifesting extreme indifference to the value of human life,” has already bеen upheld against a charge of vagueness. Martin v. State, 261 Ark. 80, 547 S.W. 2d 81 (1977).
Instead of arguing that our statutes themselves are vague, the appellant isolates a separate сonsequence of the void-for-vagueness doctrine and insists that our statutes confer arbitrary power upon prosecutor and juries to select between capital murder and murder in the first degree.
The answer to this argument is that the possible exercise of such discretionary authority is not fatal to the statutes, for even in capital cases, which this one is not, the evil to be guarded against is the capricious selection of a group of offenders. Gregg v. Georgia, 428 U.S. 153, 199 (1976). In the first place, it is impossible to avoid thе use of general language in the definition of certain offenses. State v. Weston, 255 Ark. 567, 501 S.W. 2d 622 (1973). Moreover, the prosecutor or grand jury is often compelled to choose one or two or more offenses, no matter how precise the statutes may be. For example, the conflicting testimony of eyewitnesses may, depending on their variying crеdibility, establish capital. murder if the accused committed robbery but only murder in the first degree if he committed a lesser felony such as theft of property, battery, or aggravatеd assault. §§ 41-2103, -2203, -1601, and -1604. There can be no constitutional objection to the exercise of a reasonable discretion in that situation.
In the court below the trial judge solved the problem by taking Section 41-1502 (1) (a), defining murder in the first degree, to refer not to just any felony but only to any felony other than the seven specified in
The second point fоr reversal has to do with the admissibility of evidence. About a month after the commission of the offenses the prosecuting witness, Woods, identified Cromwell at a police line-up. That identification was challenged by a motion to suppress, but after a hearing the trial judge denied the motion, finding that the line-up would not taint an in-court identification by Woods. Before the trial Woods also saw Cromwell at a preliminary hearing and at a pretrial conference.
When the trial began, defense counsel indicated during his voir dire еxamination of the veniremen and in his opening statement to the jury that he would question Woods’s in-court identification of Cromwell, because Woods had never seen Cromwell until the date of the robbery, which was 11 months before the trial. On the basis of that indicated line of defense Woods was permitted to testify, on direct examination during the State’s casе in chief, that he had never seen Cromwell before the robbery, but he had seen him on three occasions after that. No details were given, nor were any elicited by crоss examination.
The evidence was admissible. We have frequently held that a prosecuting witness may testify that he saw or identified the defendant before or after the offensе. Bishop v. State, 236 Ark. 12, 364 S.W. 2d 676 (1963); French v. State, 231 Ark. 677, 331 S.W. 2d 863 (1960); Birones v. State, 105 Ark. 82, 150 S.W. 416 (1912). That evidence is relevant, because a jury may reasonably believe that an in-court identification is more apt to be accurate if, for instance, the witness has known the accused for a long time or has seen him on other occasions. Details affecting the weight of such testimony may be brought out on cross examinаtion. Of course, proof of an identification made at an improperly conducted line-up is not admissible. Gilbert v. California, 388 U.S. 263 (1967). Here, however, the trial court’s order refusing tо suppress the lineup identification is not challenged.
In another line of cases, and before the adoption of Uniform Evidence Rule 801 (d) (1) (iii),
Affirmed.