{
  "id": 1893722,
  "name": "Clarence McCLENDON v. STATE of Arkansas",
  "name_abbreviation": "McClendon v. State",
  "decision_date": "1988-05-02",
  "docket_number": "CR 87-147",
  "first_page": "303",
  "last_page": "307",
  "citations": [
    {
      "type": "official",
      "cite": "295 Ark. 303"
    },
    {
      "type": "parallel",
      "cite": "748 S.W.2d 641"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "289 Ark. 33",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1875395
      ],
      "weight": 2,
      "year": 1986,
      "opinion_index": 0,
      "case_paths": [
        "/ark/289/0033-01"
      ]
    },
    {
      "cite": "272 Ark. 5",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1174846
      ],
      "weight": 2,
      "year": 1981,
      "opinion_index": 0,
      "case_paths": [
        "/ark/272/0005-01"
      ]
    },
    {
      "cite": "274 Ark. 188",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1754955
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/274/0188-01"
      ]
    },
    {
      "cite": "290 Ark. 269",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1873787
      ],
      "weight": 2,
      "year": 1986,
      "opinion_index": 0,
      "case_paths": [
        "/ark/290/0269-01"
      ]
    },
    {
      "cite": "281 Ark. 217",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1742351
      ],
      "weight": 2,
      "year": 1984,
      "opinion_index": 0,
      "case_paths": [
        "/ark/281/0217-01"
      ]
    },
    {
      "cite": "587 S.W.2d 831",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "case_ids": [
        1719885,
        8722013
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/267/0155-01",
        "/ark/266/0699-01"
      ]
    },
    {
      "cite": "266 Ark. 699",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8722013
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/266/0699-01"
      ]
    },
    {
      "cite": "434 U.S. 220",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6181435
      ],
      "year": 1977,
      "opinion_index": 0,
      "case_paths": [
        "/us/434/0220-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 412,
    "char_count": 7431,
    "ocr_confidence": 0.927,
    "pagerank": {
      "raw": 1.7892400776744999e-07,
      "percentile": 0.7147260322899134
    },
    "sha256": "3a31f8ee42f9b51a4071df25b2e52a2a13a7a8abe1c2bc623fe0fe0cd6d066ce",
    "simhash": "1:17fc423d3c0fe934",
    "word_count": 1222
  },
  "last_updated": "2023-07-14T18:11:27.354550+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Clarence McCLENDON v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "John I. Purtle, Justice.\nThe appellant was convicted of one count of capital murder and one count of aggravated robbery. He was sentenced to life imprisonment without parole for capital murder and life imprisonment for aggravated robbery. The trial court withheld execution of the sentence for aggravated robbery unless the capital murder conviction was set aside. On appeal the appellant argues the following four points for reversal: (1) the trial court committed error by allowing an in-court identification of the appellant; (2) the trial court committed error by failing to grant a directed verdict on both charges; (3) the capital murder statute was unconstitutionally applied in the appellant\u2019s case; and (4) the trial court committed error by failing to dismiss the aggravated robbery conviction.\nFor reasons stated below we affirm the judgment of the trial court as modified to set aside the conviction for aggravated robbery.\nOn April 13,1986, at approximately 10:00 p.m., two armed men wearing masks entered the premises of a store on Confederate Boulevard in Little Rock. The owner of the store, who was shot shortly after the men entered, died a few days later. A clerk at the store testified that he had seen and talked to the appellant at the store twice on that same day. At approximately 10:00 p.m. when the clerk was leaving, he saw the appellant outside the store putting a stocking over his head. He also testified that the appellant had a gun in his trousers at that time. The clerk struggled with the appellant and an accomplice and then escaped and hid underneath a truck. When he re-entered the store a few minutes later he discovered that the owner had been shot in the head. He then took the owner to the hospital. The clerk also testified that four or five hundred dollars from the victim\u2019s front pocket and his billfold were missing. On April 21,1986, the clerk identified the appellant in a police lineup. The state filed formal charges against the appellant on June 10, 1986.\nThe appellant argues that the in-court identification was improper because he was entitled to have counsel present at the police lineup conducted on April 21,1986. The right to counsel of the Sixth Amendment, applicable to the states through the Fourteenth Amendment, operates to assure that the accused\u2019s right to a fair trial is protected. The United States Supreme Court has held that the accused\u2019s right to counsel attaches only to corporeal identifications conducted at or after the initiation of adversary criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information or arraignment. See Moore v. Illinois, 434 U.S. 220 (1977).\nThis court has had the opportunity to consider this same issue on several occasions. See Walters v. State, 266 Ark. 699, 587 S.W.2d 831 (1979); and Lewis v. State, 281 Ark. 217, 663 S.W.2d 177 (1984). In each of these cases, as in the situation before us, the defendant participated in a lineup before formal charges had been filed. In each case we held that the accused was not entitled to the presence of counsel because adversary proceedings had not been initiated.\nIn the present case the appellant argues that we should hold that \u201ccriminal proceedings\u201d had been initiated despite the fact that no formal charges were filed until approximately two months after the lineup. This we cannot do. To do so would amount to overruling a line of cases based upon the decision of the United States Supreme Court on the same issue. Since no formal charges had been filed against the defendant we hold that the defendant was not entitled to counsel at his identification lineup.\nThe appellant also argues that the lineup conducted on April 21, 1986, was unduly suggestive. After careful consideration of the record we find nothing to indicate that the lineup violated the defendant\u2019s due process rights by being unduly suggestive. From the facts presented, there is substantial evidence to conclude that the in-court identification was not \u201ctainted\u201d by the identification in the lineup. The eyewitness\u2019 opportunity to observe the appellant was great and his testimony was clear and unequivocal.\nThe appellant\u2019s second point for reversal is that the trial court should have granted a directed verdict on both the aggravated robbery charge and the capital murder charge. He argues that there is insufficient evidence to support the conviction of capital felony murder or aggravated robbery.\nIn the present case there was testimony that the appellant was seen at the store several times on the day in question asking about the owner. At the time the employee left the store he observed the appellant with a gun and in the process of pulling a stocking over his head. Additionally, the store owner\u2019s billfold and approximately four or five hundred dollars which the owner had in his front pocket shortly before the shooting were missing. Unlike Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), which is relied upon by the appellant, there is substantial corroborating evidence from which a jury could find that the shooting occurred during the course of a robbery.\nThe appellant\u2019s third point for reversal is that the capital murder statute was unconstitutionally applied. In support of this the appellant asserts that the underlying felony, aggravated robbery, is not one of the seven felonies that can support a charge of capital felony murder. This argument has been raised before. In Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (19 81), we held that the General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not. Aggravated robbery is still a robbery.\nMcClendon also contends that the first degree murder statute and the capital murder statute are unconstitutionally vague and overlap in such a way that he may be charged with either crime for the same conduct. This argument has also been raised before and we have decided that there is no constitutional infirmity in these statutes. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).\nHowever, we do find that appellant\u2019s final argument has merit. He insists the trial court should not have entered a judgment on his conviction for aggravated robbery. We agree. Aggravated robbery in this case was the underlying felony relied upon by the state to establish the crime of capital murder. The robbery was an essential element of the crime of capital murder. Therefore the appellant could not have been sentenced for aggravated robbery in this case. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986).\nHaving no authority to do so, the trial court should not have sentenced the appellant for aggravated robbery. The sentence for aggravated robbery therefore should be set aside.\nAccordingly the capital felony murder conviction of the appellant is affirmed and the aggravated robbery conviction is reversed and the case is remanded to the trial court with directions to vacate the sentence and dismiss the charge of aggravated robbery.\nAffirmed in part; reversed and remanded in part.",
        "type": "majority",
        "author": "John I. Purtle, Justice."
      }
    ],
    "attorneys": [
      "Charles L. Carpenter, Jr., for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Clarence McCLENDON v. STATE of Arkansas\nCR 87-147\n748 S.W.2d 641\nSupreme Court of Arkansas\nOpinion delivered May 2, 1988\n[Rehearing denied May 31, 1988.]\nCharles L. Carpenter, Jr., for appellant.\nSteve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0303-01",
  "first_page_order": 327,
  "last_page_order": 331
}