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finding purpose of the limitations period was to limit length of time that insureds would be exposed to potential liability
Summary of this case from O'Reilly v. WisemanOpinion
No. CR 82-151
Opinion delivered March 21, 1983
EVIDENCE — PROSECUTRIX'S IDENTIFICATION NOT TAINTED. — The prosecutrix's positive in-court identification of appellant as her assailant was not tainted by the inclusion, without improper motive, of several pictures of the defendant among hundreds of pictures after the prosecutrix had seen her assailant's face for about four minutes on a bright sunny day during the robbery, only a day or so before she went through the photographs.
Appeal from Pulaski Circuit Court, First Division; Floyd J. Lofton, Judge; affirmed.
William R. Simpson, Jr., Public Defender, by: Jackson Jones, Deputy Public Defender, for appellant.
Steve Clark, Atty. Gen., by: Velda P. West, Asst. Atty. Gen., for appellee.
The circuit judge, hearing the case without a jury, found the appellant guilty of aggravated robbery and, after considering a presentence report disclosing a number of prior offenses, imposed a 35-year sentence. The only argument for reversal is that the prosecutrix's identification testimony was tainted by the inclusion of four separate photographs of Wade among 200 or more photographs that the witness examined at police headquarters in picking out Wade as the man who robbed her. No error is shown.
There is no indication that either the prosecutrix or the police knew the identity of the criminal when she looked through the file of photographs. Thus there is no intimation that the inclusion of four pictures of Wade was deliberate. The prosecutrix testified that in the file there was sometimes one picture of a suspect, sometimes two, sometimes five. She was positive in her identification of Wade at the trial, saying that she had seen his face for probably four minutes on a bright sunny afternoon during the robbery, which was only a day or so before she went through the photographs.
In West v. State, 255 Ark. 668, 675, 501 S.W.2d 771 (1973), we upheld an identification although the twelve pictures shown to the prosecutrix included two each of the defendant and of three other suspects. Where, as in the case at bar, several pictures of the ultimate defendant are included among hundreds of pictures, without improper motive, it is reasonable to think that a combination of various pictures of the same person might materially assist the witness in the identification process, both in the selection and in the rejection of possibilities. Moreover, the trial judge expressed his conviction that the prosecuting witness had identified the defendant "to an absolute certainty." His decision is not clearly erroneous.
Affirmed.