{ "id": 6140531, "name": "James Earl MAYS v. STATE of Arkansas", "name_abbreviation": "Mays v. State", "decision_date": "1997-05-21", "docket_number": "CA CR 96-674", "first_page": "282", "last_page": "289", "citations": [ { "type": "official", "cite": "57 Ark. App. 282" }, { "type": "parallel", "cite": "944 S.W.2d 562" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "297 Ark. 160", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891463 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0160-01" ] }, { "cite": "296 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892720 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0385-01" ] }, { "cite": "316 Ark. 698", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907717 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0698-01" ] }, { "cite": "278 Ark. 259", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748420 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0259-01" ] }, { "cite": "284 Ark. 557", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878651 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/284/0557-01" ] }, { "cite": "559 S.W.2d 751", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9952411 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/sw2d/559/0751-01" ] }, { "cite": "46 Ark. App. 198", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139426 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/46/0198-01" ] }, { "cite": "906 S.W.2d 677", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1449592, 1449516 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0635-01", "/ark/321/0658-01" ] }, { "cite": "321 Ark. 635", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449592 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0635-01" ] }, { "cite": "320 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451187 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0385-01" ] }, { "cite": "323 Ark. 301", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445756 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0301-01" ] }, { "cite": "311 Ark. 613", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896995 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark/311/0613-01" ] }, { "cite": "256 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722931 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/ark/256/0558-01" ] }, { "cite": "51 Ark. App. 60", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136680 ], "weight": 2, "year": 1995, "opinion_index": 1, "case_paths": [ "/ark-app/51/0060-01" ] }, { "cite": "324 Ark. 395", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9160541 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark/324/0395-01" ] }, { "cite": "50 Ark. App. 203", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140011 ], "weight": 2, "year": 1995, "opinion_index": 1, "case_paths": [ "/ark-app/50/0203-01" ] }, { "cite": "284 Ark. 557", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878651 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/ark/284/0557-01" ] }, { "cite": "559 S.W.2d 751", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9952411 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/sw2d/559/0751-01" ] } ], "analysis": { "cardinality": 648, "char_count": 12583, "ocr_confidence": 0.757, "pagerank": { "raw": 5.487481659120741e-08, "percentile": 0.34374513726475947 }, "sha256": "77bfb05f3b03d6fc45aea3335e7e461e39dc3d713047d1aa4ca4855f39c8d153", "simhash": "1:cfcce0a2360dd880", "word_count": 2159 }, "last_updated": "2023-07-14T16:10:06.660800+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, C.J., and Griffen, J., agree.", "Neal, Crabtree, and Roaf, JJ., dissent." ], "parties": [ "James Earl MAYS v. STATE of Arkansas" ], "opinions": [ { "text": "John E. Jennings, Judge.\nJames Earl Mays was charged with the aggravated robbery of Mack\u2019s Liquor Store in Blytheville. He was found guilty by a Mississippi County jury and was sentenced by the court to ten years\u2019 imprisonment. On appeal Mays contends that the evidence was insufficient to sustain the conviction and that the court erred in denying his motion to suppress testimony related to a photographic line-up. We find no error and affirm.\nWhen reviewing the sufficiency of the evidence on appeal, we do not weigh the evidence but simply determine whether the evidence in support of the verdict is substantial. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Substantial evidence is that which is forceful enough to compel a conclusion one way or the other and passes beyond mere suspicion and conjecture. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). The question of the sufficiency of the evidence to support a conviction is one of law. Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994).\nAppellant\u2019s conviction rests primarily on the testimony of two witnesses, Robert Pillow and Joseph Bearden. Robert Pillow was the clerk at Mack\u2019s Liquor Store on the day of the robbery. He testified that at about 2:25 or 2:30 p.m. a man entered the store. The man raised his shirt, showing a gun in the front of his pants and said, \u201cYou know what I want.\u201d When Mr. Pillow realized he was being robbed, he opened the cash register and gave its contents to the man. The man took Pillow to the back of the store and told Pillow that he could not go out the front door. Pillow gave the man his keys. While they were going into the back room the bell went off at the drive-through window. Pillow said, \u201cI need to get that,\u201d and the man said, \u201cNo, no, just come on.\u201d The man tied Mr. Pillow up, went back in the store and got a half-gallon of liquor, and went out the back door. Pillow testified that the man was in the store for five minutes.\nThe prosecuting attorney asked whether Mr. Pillow got a good look at the person\u2019s face and Mr. Pillow answered, \u201cI didn\u2019t really pay attention too close because I was scared, I was worried about the gun.\u201d Mr. Pillow described the man as black, \u201cmedium-skinned,\u201d in his mid-thirties, and having a clean-cut moustache. Pillow testified that the man weighed 160 to 180 pounds. Then:\nQ. Do you see that person today?\nA. Well, that fellow looks like him except he\u2019s got, he\u2019s got a beard that he didn\u2019t have that day.\nPillow testified that he identified the person that robbed him from a four-photograph line-up provided by the police officers. Finally, on direct examination:\nQ. AH right, sir. Now, do I understand your testimony, are you able to say today that the defendant seated over here is the person except for the facial hair?\nA. Yes, sir, he resembles the person very much so except for the facial hair. But, you know, he had, you know, he had a hat on so, you know, from here up, I can\u2019t honestly say that that\u2019s him. I cannot say that.\nThen on cross-examination:\nQ. Good afternoon, Mr. Pillow. You say you cannot honestly say that this person seated at counsel table is the person?\nA. No, ma\u2019am. He just, he looks like the fellow, but like I said, there was a hat on. And, you know, from here down, yes, ma\u2019am, except without the beard.\nAt the conclusion of cross-examination:\nQ. And if I recall your testimony earlier, you were not certain of the person\u2019s identity in the line-up, is that correct?\nA. Yes, ma\u2019am.\nQ. And you\u2019re not certain today of the person\u2019s identity, is that correct?\nA. Yes, ma\u2019am.\nQ. Okay.\nJoseph Bearden was a liquor salesman calling on Mack\u2019s Liquor Store on the day of the robbery. He testified that between 2:30 and 2:45 p.m. a car pulled up to the drive-through window as he, Bearden, drove up. Bearden knocked on the door and got no response. As he headed back to his car he saw a man come from behind the liquor store. He testified that the man did a \u201cstop- step\u201d like he was going to back up. He positively identified the appellant as the man he saw that day. He testified that \u201cit looked like [the man had] a moustache, but I couldn\u2019t tell if there was much of a beard.\u201d\nRoss Thompson, a Blytheville police officer, testified that he showed a photographic fine-up to Mr. Pillow. He testified that Mr. Pillow picked out the photograph of the appellant without hesitation but that Pillow could not unequivocally say that that was the person who robbed him. Officer Thompson also testified that the photographic line-up had been lost within the police department.\nIn ruling on the defendant\u2019s motion for directed verdict the trial judge said:\nTHE COURT:\nIn this case here we have a situation where the victim himself has indicated that he could not positively identify the defendant as the person who robbed him. But on the other hand, he has said in open Court that the defendant resembles the individual that came in the store, that the only difference is that he couldn\u2019t identify him because he said he had hair on his face at this point in time. Also when the photo line-up was presented to him that he again made a statement that he couldn\u2019t positively identify him, the individual there as being the one that perpetrated that robbery, but there were two pictures there that he indicated that looked almost like twins. But, in fact, he did pick out the defendant as being the person who committed the robbery. That coupled with the statement from Mr. Bearden that he saw the defendant behind Mack\u2019s Liquor Store and that upon viewing him first that the defendant halted or paused or acted in a suspicious manner before he moved on down the alleyway.\nAll of that looked upon in the most favorable light certainly constitutes, in the Court\u2019s opinion, substantial evidence enough to allow it to go to the jury. As you know, the Court is not to weigh the evidence, not to decide whether or not it is evidence that even at a preponderance is substantial. And the Court is going to rule that there is substantial evidence and the matter should go to the jury. The motion for directed verdict is denied.\nWe think that the trial court\u2019s ruling was correct. The law does not require that a witness\u2019s description be totally accurate. State v. Radford, 559 S.W.2d 751 (Mo. App. 1977). In Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985), the supreme court said, \u201cThe accuracy of the [victim\u2019s] identification of appellant and the alleged weaknesses of that identification were matters of credibility to be resolved by the jury.\u201d While Mr. Pillow was not absolutely certain in his identification of appellant as the robber, appellant\u2019s conviction does not rest on Mr. Pillow\u2019s testimony alone. Under the circumstances the jury could reasonably infer that the man who robbed Mr. Pillow was the same man seen behind Mack\u2019s Liquor Store by Mr. Bearden. Mr. Bearden positively identified the man he saw as the appellant. The circuit judge did not err in denying the motion for directed verdict.\nAfter the State\u2019s opening statement appellant asked the court to rule that any references to the photographic line-up would be inadmissible, because the photographs had been lost by the police department. The court denied the motion. We find no error in the court\u2019s ruling.\nTestimony about an out-of-court identification is generally admissible. See Hilton v. State, 278 Ark. 259, 644 S.W.2d 932 (1983); Jacobs v. State, 316 Ark. 698, 875 S.W.2d 52 (1994). Appellant relies, in part, on Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). In Hamm the supreme court held that when the State lost the tape recording of the defendant\u2019s confession it was error to admit the transcription. The court expressly noted, however, that oral testimony about the confession was admissible.\nAppellant\u2019s reliance on Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988), is misplaced. Bowden involved a five line-up and the issue of whether the defendant waived his right to counsel. Neither issue is involved in the case at bar.\nFor the reasons stated the judgment of the trial court is affirmed.\nRobbins, C.J., and Griffen, J., agree.\nNeal, Crabtree, and Roaf, JJ., dissent.", "type": "majority", "author": "John E. Jennings, Judge." }, { "text": "Andree Layton Roaf, Judge,\ndissenting. While I agree with the majority that the trial court did not err in denying the motion to suppress testimony relating to the photograph lineup, I strongly disagree with the holding that the trial court correctly denied Mays\u2019s motion for directed verdict.\nThe majority has found the following evidence substantial, and thus sufficient to sustain the conviction of James Earl Mays for aggravated robbery of a liquor store: the testimony of the victim, Robert Pillow, who repeatedly failed to identify Mays as the robber in both a photographic line-up and at trial, and the testimony of Dennis Bearden who positively identified Mays as a man whom he saw coming from the alleyway behind the liquor store around the time of the robbery. Bearden testified that he closely observed Mays as he walked away from the budding because he became suspicious of him, and that he \u201cgot a good look at him.\u201d However, although the victim testified that the robber left wearing a hat and carrying a half-gallon of liquor, and described him as approximately 5'8\" tall, the observant Mr. Bearden made no mention of either a hat or a half-gallon of liquor, and described the person he observed as a little over six feet tall.\nThe majority holds that the trial court correctly denied Mays\u2019s motion for directed verdict because \u201cthe law does not require that a witness\u2019s description be totally accurate,\u201d relying upon a Missouri case, State v. Radford, 559 S.W.2d 751 (Mo. App. 1977) and Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985), for the propositions that a witness\u2019s description need not be totally accurate, and that weaknesses in the victim\u2019s identity of the accused are matters of credibility for the jury to resolve. However, in both Radford and Davis, the victims positively identified the accused in a pretrial line-up and at trial. In Radford, there was a discrepancy in the defendant\u2019s height and the estimation of height reported by the victim; the victim in Davis was unsure at the trial held six years after the robbery whether Davis had been wearing a beard. The majority\u2019s reliance upon Radford and Davis is clearly misplaced.\nEven more troubling is the majority\u2019s failure to address Mays\u2019s argument concerning the circumstantial nature of the evidence. Since no one identified Mays as the robber, the case against him was entirely circumstantial. It is well settled that the fact that evidence is circumstantial does not render it insubstantial. Tucker v. State, 50 Ark. App. 203, 901 S.W.2d 865 (1995). To constitute substantial evidence in a criminal trial, however, circumstantial evidence must exclude every other reasonable hypothesis consistent with the appellant\u2019s innocence, and the factfinder must not be left to speculation and conjecture. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996); Knight v. State, 51 Ark. App. 60, 908 S.W.2d 664 (1995). Although the question of whether circumstantial evidence excludes every other reasonable hypothesis other than the accused\u2019s guilt is usually for the jury, see Abbot v. State, 256 Ark. 558, 508 S.W.2d 733 (1974), on appellate review, the reviewing court considers whether the evidence was in fact sufficient to exclude all other reasonable hypotheses. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). Two equally reasonable conclusions regarding what occurred merely give rise to a suspicion of guilt, and that is insufficient as a matter of law to sustain a criminal conviction. Carter v. State, supra.\nHere, even the evidence that supports the conviction presents two equally plausible hypotheses: either Mays was the person who committed the robbery, or he was, unluckily for him, simply in the wrong place at the wrong time. Consequently, the jury had to resort to speculation and conjecture to convict Mays of this crime, and I would reverse and dismiss.\nNeal and Crabtree, JJ., join in this dissent.", "type": "dissent", "author": "Andree Layton Roaf, Judge," } ], "attorneys": [ "Mikke Connealy Marshall, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "James Earl MAYS v. STATE of Arkansas\nCA CR 96-674\n944 S.W.2d 562\nCourt of Appeals of Arkansas Divisions I and II\nOpinion delivered May 21, 1997\nMikke Connealy Marshall, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0282-01", "first_page_order": 318, "last_page_order": 325 }