Danny SANDERS v. STATE of Arkansas
CR 82-2
Supreme Court of Arkansas
June 21, 1982
635 S.W.2d 222
Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
RICHARD B. ADKISSON, Chief Justice. Following a trial by jury appellant, Danny Sanders, was sentenced as a habitual offender to 20 years on each of two counts of aggravated robbery and to 60 yeаrs for rape. On appeal, we affirm.
On July 5, 1981, a husband and wife were camped at the Oil Trough Ferry near Batesville. About 2:00 a.m. they were awakened by a man in their tent who told them that he had a .38 pistol and that he wanted their money. The husband immediately turnеd on a spotlight, at which time they realized there were four men in the tent, two armed with guns and two with knives. Later a fifth accomplice came into the tent. The robbers took the $11.00 that the couple had; the husband was then forced to accоmpany three of the men to the tent-trailer of people camped nearby. Meanwhile, appellant аnd another man stayed in the tent and raped the wife.
Several weeks later a deputy sheriff showed the victims photographs of four suspects. The wife picked out appellant as being one of her assailants. The husband picked aрpellant as a look alike but was unable to make a positive identification. At trial appellant was positively identified by each victim.
Appellant first argues that the victims’ in-court identification of appellant should have been excluded because it was unreliable. Appellant alleges that the following factors point to unreliability: The wife, in a hаndwritten statement to the police, stated that her assailants referred to each other as Ricky and Bobby; apрellant‘s name is Danny. The wife at one time testified that appellant‘s face was clean shaven; yet there was some evidence that appellant had a mustache and
It is not argued that the procedures leading to the identification were constitutionаlly infirm; therefore, the reliability of eyewitness identification is a question for the jury. Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976). Although the wife could recall very few of appellant‘s physical characteristics in describing him to the police, her identification of appellant both in court and by picture was always positive and unwavering. There was testimony that the spotlight in the tent was on during the rape, and thе wife testified that she looked directly at appellant. The credibility of the witnesses and the weight to be given to their testimony was a question for the jury.
Appellant argues that the trial court erred in allowing the State to introduce a photogrаph depicting appellant as clean shaven on the date of his arrest. The appellant called sevеral witnesses, most of them family members, who testified that the appellant had facial hair on the date of the offensеs, but had shaved it after he was arrested. The photograph was relevant to the testimony of those witnesses who stated that the appellant shaved his face only after he was incarcerated because the photograph shows him clean shaven on the date of his arrest. A juror could draw an inference of either dishonesty or faulty perception based on this evidence.
Appellant argues that the trial court erred in refusing to order that appellant be аllowed to take the depositions of two out-of-state persons who were called as witnesses at the trial by the рrosecution. Appellant alleged that the witnesses refused to speak with defense counsel; therefore, he сould not adequately prepare for trial. However, appellant has failed to show how he was prejudiced by his not being allowed to take their depositions before trial. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). Both witnesses testified at
Appellant argues that the trial court erred in limiting his attorney‘s fee to the statutory amount of $350.00 as set out in
Appellant now argues on appeal that
Affirmed.
HICKMAN, J., concurs.
DARRELL HICKMAN, Justice, concurring. I concur with the result but would add that the appellant‘s attorney has not demonstrated that he has been singled out to represent this indigent defendant, or others, to his obvious legаl detriment.
It is part of the duty and responsibility of any practicing attorney to do his part to represent individuals in the locаlity in both civil and criminal matters who cannot afford
It may be possible in a given criminal case that аn indigent‘s attorney might make a showing that he has been deprived of property without due process of law. That is a theоretical possibility. See State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980). But a bare showing that numerous hours have been invested cannot in my mind even raise that issue, and that is essentially all the appellant‘s attorney has done.