ARK.] 749 Terrance G. HOPSON v. STATE of Arkansas CR 96-961 940 S.W.2d 479 Supreme Court of Arkansas Opinion delivered March 24, 1997 1. JURY — INSTRUCTIONS — RULE ON WITNESS IDENTIFICATION REJECTED IN PRIOR DECISION. — In Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), the supreme court specifically refused to adopt the rule in United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), which held that in cases where a witness's identification was a major issue, the trial court should give a special instruction emphasizing to the jury the need for a finding that the circumstances of the identification were convincing beyond a reasonable doubt; in rejecting the rule, the court found that the Telfaire instruction commented on the evidence, which is permissible under the federal rules but specifically prohibited by Ark. Const. art. 7, § 23, and that, in the Conley case, the content of the proffered instruction had been adequately covered by the arguments of counsel and the standard AMCI instructions on reasonable doubt and credibility of the witnesses. 2. APPEAL & ERROR — STRONG PRESUMPTION OF VALIDITY OF PRIOR DECISION. — There is a strong presumption of the validity of a prior decision unless great injury or injustice would result; adherence to precedent promotes stability, predictability, and respect for judicial authority. 3. APPEAL & ERROR — PRESUMPTION OF VALIDITY OF PRIOR DECISION NOT OVERCOME — TRIAL COURT DID NOT ERR IN REJECTING PROFFERED JURY INSTRUCTION ON EYEWITNESS IDENTIFICATION. — The supreme court concluded that appellant had not overcome the strong presumption of the validity of its prior decision in Conley v. State; because appellant was able to argue to the jury the possible unreliability of the witness's identification, and the jury was given the AMCI instructions on credibility of the witnesses and reasonable doubt, the trial court did not err when it rejected appellant's proffered jury instruction on eyewitness identification. Appeal from Jefferson Circuit Court; Berlin C. Jones, Judge; affirmed. J. Slocum Pickell, for appellant.
HOPSON V. STATE 750 Cite as 327 Ark. 749 (1997) [327 Winston Bryant, Att'y Gen., by: Gi/ Dudley, Asst. Att'y Gen., for appellee. ANNABELLE CLINTON IMBER, Justice. The appellant, Ter-rance G. Hopson, was convicted of two counts of aggravated robbery and sentenced to sixty years' imprisonment. On appeal, Hopson asserts that the trial court committed reversible error when it rejected his proffered jury instruction on eyewitness identification. Finding no error, we affirm. On July 12, 1995, Jack Talbot and Chris Penny were robbed at gunpoint while playing golf in Pine Bluff. Approximately five weeks later, the police presented the victims with a photographic line-up of several suspects. Jack Talbot was unable to make an identification. Chris Penny, however, identified Terrance G. Hopson as the assailant At trial, Penny testified that during the robbery he was able to view the assailant for approximately five to ten seconds from a distance of roughly three to four feet. Penny further testified that he recognized Hopson in the photographic line-up due to an unusual discoloration under his right eye. Hopson was allowed to fiffly cross-examine Penny on his ability to observe Hopson and make a proper identification. During a conference in chambers, Hopson proffered the following jury instruction: ONE OF THE MOST IMPORTANT ISSUES IN THIS CASE IS THE IDENTIFICATION OF DEFENDANT, TER-RANCE HOPSON, AS THE PERSON WHO COMMITTED THE CRIME CHARGED IN THE INDICTMENT. THE STATE, AS YOU KNOW, HAS THE BURDEN OF PROVING EVERY ISSUE, INCLUDING IDENTITY, BEYOND A REASONABLE DOUBT. YOU ARE REQUIRED TO RESOLVE ANY CONFLICT OR UNCERTAINTY ON THAT ISSUE. IN MAKING THAT DETERMINATION, YOU MAY CONSIDER THE OPPORTUNITY THAT THE WITNESSES HAD TO SEE THE PERSON WHO COMMITTED THE CRIME AT THE TIME IT WAS COMMITTED. YOU MAY ALSO CONSIDER THE LENGTH OF TIME THAT
HOPSON V. STATE ARK.] Cite as 327 Ark. 749 (1997) 751 ELAPSED BETWEEN THE OBSERVATION AND THE LATER IDENTIFICATION. YOU MAY ALSO CONSIDER ALL OF THE CIRCUMSTANCES SURROUNDING ANY SUBSEQUENT IDENTIFICATION. THE BURDEN OF PROOF IS ON THE PROSECUTION WITH REFERENCE TO EVERY ELEMENT OF THE CRIME CHARGED AND THIS B URDEN INCLUDES THE BURDEN OF PROVING, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT, TER-RANCE HOPSON, WAS, IN FACT, THE PERSON WHO COMMITTED THE CRIME CHARGED. Hopson conceded that this proffered instruction was not included in the Arkansas Model Jury Instructions; however, he argued that it should be read to the jury because otherwise it would not be instructed on the proper way to evaluate an eyewitness's identification of the defendant. The trial court disagreed and ruled that the standard instructions were adequate. Accordingly, the trial judge gave the standard Arkansas Model Jury Instructions, including but not limited to, the following instructions: AMCI 2d 104 Credibility of the Witnesses; AMCI 2d 107 Burden of Proof; AMCI 2d 109 Presumption of Innocence; and AMCI 2d 110 Reasonable Doubt. Additionally, Hopson was allowed to highlight during his closing argument the factors that could have caused Penny's identification to be inaccurate. After deliberation, the jury found Hopson guilty of two counts of aggravated robbery and sentenced him to sixty years' imprisonment. Hopson filed a timely notice of appeal from his judgment and commitment order. For his sole argument on appeal, Hopson contends that the trial court committed reversible error when it refiised to read to the jury his proffered instruction on eyewitness identification. In support of his contention, Hopson relies on United States V. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), where the Circuit Court of Appeals for the District of Columbia held that in cases where a witness's identification is a major issue, the trial court should give a special instruction which emphasizes to the jury the need for a
HOPSON V. STATE 752 Cite as 327 Ark. 749 (1997) [327 finding that the circumstances of the identification are convincing beyond a reasonable doubt. The Telfaire rule has subsequently been adopted and utilized under limited circumstances by the Eighth Circuit Court of Appeals. See United States v. Mays, 822 F.2d 793 (8th Cir. 1987); United States v. Greene, 591 F.2d 471 (8th Cir. 1979). [1] However, in Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), this court specifically refused to adopt the Telfaire rule for two important reasons. First, this court found that the Telfaire instruction commented on the evidence, which is permissible under the federal rules but specifically prohibited by Article 7, section 23, of the Arkansas Constitution. Id. Second, this court found that the content of the proffered instruction had been adequately covered by the arguments of counsel and the standard AMCI instructions on reasonable doubt and credibility of the witnesses. Id. See also Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983); Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981). [2] Therefore, on appeal, Hopson is in effect asking this court to reverse our prior holding in Conley, supra. As we have repeatedly explained, under Arkansas law there is a strong presumption of the validity of a prior decision unless great injury or injustice would result. Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996); Independence Fed. Bank v. Webber, 302 Ark. 324, 789 S.W.2d 725 (1990). Moreover, the United States Supreme Court has recognized that the adherence to precedent promotes stability, predictability, and respect for judicial authority. Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197 (1991). [3] Hopson has not overcome the strong presumption of the validity of our prior decision in Conley, supra. Because Hop-son was able to argue to the jury the possible unreliability of the witness's identification, and the jury was given the AMCI instructions on credibility of the witnesses and reasonable doubt, the trial court did not err when it rejected Hopson's proffered jury instruction on eyewitness identification. Affirmed.
ARK.] 753 BROWN, J., not participating. Special Justice JOHN CLAYTON RANDOLPH joins in this opinion.
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