KAESTEL v. STATE, 274 Ark. 550 (1982)
Rolf KAESTEL v. STATE of Arkansas
626 S.W.2d 940
No. CR 81-70
Supreme Court of Arkansas
Opinion delivered January 18, 1982
1. SEARCHES & SEIZURES - The trial court’s denial of the motion to suppress proof about the jacket and toy pistol
found in the car was not error since the articles were properly seized under the automobile exception to the
exclusionary rule; and, within that exception, officers must have reasonable cause to search an vehicle. Held: The
warrantless search was proper under the circumstances.
2. APPEAL & ERROR - CLAIM OF REVERSIBLE ERROR BASED UPON TESTIMONY INTRODUCED BY
APPELLANT - EFFECT. - The appellant cannot base a claim of reversible error upon testimony which he himself
chose to introduce.
3. CRIMINAL LAW - IDENTIFICATION OF ACCUSED - NOT DULY SUGGESTIVE & PREJUDICIAL. - The
identification procedure was not only unduly suggestive and prejudicial where the witness had the opportunity to look
at the defendant in good light at close range at the time of the crime; where the detailed description is not shown to be
inaccurate; where only minutes elapsed between the time of the crime and the witness’s identification; and where the
witness never waivered in his certainty about the defendant’s identity.
4. CRIMINAL LAW - IDENTIFICATION OF ACCUSED - FUNDAMENTAL QUESTION - WHETHER PRETRIAL
IDENTIFICATION WAIVERED. - The fundamental question in the instant case is whether the pretrial identification
so tainted the witness’s testimony as to give rise to a substantial likelihood of misidentification is nonexistent, for the
witness’s identification is confirmed beyond doubt by the testimony of the appellant’s codefendants.
5. CRIMINAL LAW - SEVERITY OF SENTENCE - QUESTION FOR THE JURY. - Except in capital cases the
Supreme Court does not review the severity of a sentence within the lawful maximum and not affected by error in the
trial, that determination having been committed to the jury by the Constitution and statutes.
6. CRIMINAL LAW - PROOF OF PREVIOUS CONVICTIONS - EVIDENCE SUFFICIENCY BEYOND A
REASONABLE DOUBT. - There is no substantial defect in the State’s prima face proof of previous convictions, the
evidence being sufficient if it satisfies the jury beyond a reasonable doubt. Ark. Stat. Ann. 41-1003 (Repl. 1977).
7. CRIMINAL LAW - LIFE IMPRISONMENT - REVIEW. - The practice of the Supreme Court in life imprisonment
cases is to review all objections brought to its attention, whether argued or not. Held: The appellant had no defense to
the charge and he received a completely fair trial, free from prejudicial error.
Appeal from Sebastian Circuit Court, For Smith District, John G. Holland, Judge; affirmed.
Appellant, pro se.
Steve Clark, Att’y Gen., by: William C. Mann, III, Asst. Att’y Gen., for appellee.
GEORGE ROSE SMITH, Justice
The appellant, Rolf Kaestel, age 29, along with two other men, Terry Spitler, 22, and Selid Hold, 20, and two women,
Allice Wallace, 16, and Linda Wright, 19, was charged with aggravated robbery committed at Senor Bob/s Taco Hut
in Fort Smith on February 15, 1981, and with being a habitual criminal, Kaestel was tried separately, found guilty, and
sentenced to the maximum punishment of life imprisonment and a $15,000 fine. For reversal he questions the trial
court’s refusal to suppress evidence obtained by a warrantless search, the legality of the identification procedure, the
sufficiency of the evidence, the severity of the sentence, and the admissibility of the State’s proof of his previous
convictions.
Kaestel, despite the availability of consulting counsel, appointed at his request, chose to try his own case, and has
prepared his own abstract and brief on appeal. He did not testify either on the motion to suppress or at the trial. All
four of his codefendants testified for the State.
Except for minor discrepancies that Kaestel overemphasizes, the testimony is singularly free from dispute. Just before
the robbery the five defendants were riding together at about 7:00 p.m., after dark, in Fort Smith in a large green four-
door Dodge sedan owned by Linda Wright and licensed to her in Iowa. Kaestel, decidedly the oldest member of the
group and apparently its leader, suggested the robbery of the Taco Hut, entered the Hut with Spitler, exhibited a (toy)
gun to the clerk, Dennis Schleuterman, and took about $274 in bills. When the robbers left, Schleuterman gave a
detailed description of each robber, including approximate age, height, and weight, color and length of hair, and
nature of color of facial hair. Both men were white.
Wayne Redden, a citizen living up the block from the Taco Hut, had noticed that a person was sitting in the driver’s
seat of a large green car parked across the street from his home. In a few moments a white male ran up and jumped
in the car. After the car had started away it stopped to allow another white male to run up and get in. The car then
drove off. When the police arrived, Redden went out and told them what he had seen. Schleuterman’s description of
the robbers and Redden’s description of the car were broadcast by radio.
When the two robbers and their companions drove away, Kaestel and Spitler, at Kaestel’s suggestion, changed their
clothes to avoid detection. Within a few minutes the group stopped at a Roadrunner gas station about three miles
from the Taco Hut. They parked in an unusual way, by driving in, turning around, and backing up to the darker side
of the station, away from the gas pumps. Kaestel went in the Roadrunner store. Robert Hamilton, a citizen living
nearby, had heard the police broadcast, noticed the peculiar parking maneuver, connected the car with the robbery,
and called the police, who arrived quickly. We note that the alert actions of the two citizens, Redden and Hamilton,
were essential in the apprehension of the robbers.
The five suspects at first cooperated with the police by producing their identification. They sought to avoid suspicion
by saying they had just dropped off two hitchhikers. The police, however, searched the car and found on the rear
floorboard a jacket like the one described by Schleuterman and a realistic-looking plastic toy pistol under the jacket.
The group were then taken to the scene of the robbery, where Schleuterman positively identified Kaestel and
somewhat less positively identified Spitler. When the police searched the police vehicle in which the three men had
been transported from the Roadrunner to the Taco Hut they found $179 under the front seat. There was proof that no
one else could have secreted the money there. Kaestel had $63 in his wallet.
We find no merit in any of Kaestel’s arguments for reversal. The trial court’s denial of the motion to suppress proof
about the jacket and toy pistol found in the car was not error, for two reasons. First, the articles were properly seized
under the automobile exception to the exclusionary rule. Within that exception officers must have reasonable cause to
search a vehicle. (Citation omitted). Here the vehicle corresponded to Redden’s report, which implicated it in the
robbery. It contained three males, as indicated by Redden. Its peculiar maneuver at the Roadruner aroused the
suspicion of both Hamilton and the police. Finally, Schleuterman’s description of the two men was unusually
complete. Kaestel says in his brief that two of the detainees "only vaguely fit the description of the suspects," but that
statement is not shown by the abstract of the record to have any basis. Both the trial judge and the jury had the
opportunity to see Kaestel and Spitler and to know how accurate the descriptions were. We have no similar basis for
comparison. There were also present the required exigent circumstances, in view of Mrs. Wright’s possible right to
insist upon driving her vehicle away and of the difficulty of obtaining a search warrant quickly at night. Hence the
warrantless search was proper. Chambers, supra.
Second, the correctness of the trial court’s ruling upon Kaestel’s motion to suppress is actually immaterial, for the
State never sought to prove the search of the car or the discovery of the jacket and pistol. To the contrary, the State
rested its case after calling only six witnesses; Schleuterman to prove the actual robbery and identify the robbers; the
four codefendants, to confirm Kaestel’s participation in the crime; and Redden, to corroborate the accomplices’
testimony about the group’s flight from the scene. All the testimony about what happened at the Roadrunner and
about the search of the car was brought out by Kaestel himself, by cross-examining the State’s witnesses and by
calling the investigating officers to testify and to produce their investigation reports. Kaestel cannot base a claim of
reversible error upon testimony which he himself chose to introduce. Strode v. State, 259 Ark. 859, 537 S.W.2d 162
(1976).
Kaestel argues that the identification procedure used by the police was unduly suggestive and prejudicial, in that (1) he
was first identified by Schleuterman in a dim light, after Kaestel had been brought back from the Roadrunner, and (2)
he should have been placed in a lineup. We perceive no unfairness in the procedure. To the contrary, Schleuterman’s
identification meets various tests that have been enumerated: At the time of the crime he had the Opportunity to look
at Kaestel in a good light at close range; his detailed description of Kaestel is not shown to be inaccurate; only minutes
elapsed between the crime and Schleuterman’s identification; and Schleuterman has never waivered in his certainty
about Kaestel’s identity. See Reed v. State, 271 Ark. 526, 541, 609 S.W.2d 898 (1980). Moreover, the fundamental
question is whether the pretrial identification so tainted Schleuterman’s in-court testimony as to give rise to a
substantial likelihood of misidentification. Here the possibility of misidentification is nonexistent, for Schleuterman’s
identification is confirmed beyond a doubt by the testimony of Kaestel’s codefendants.
In view of the facts we have already stated, Kaestel’s arguments that the evidence does not support the verdict and
that the testimony of his accomplices was not corroborated are not of sufficient merit to warrant discussion. As to
the severity of the sentence, except in capital cases we dot review the severity of a sentence within the lawful
maximum and not affected by error in the trial, that determination having been committed to the jury by the
Constitution and statutes. Osborne v. State, 237 Ark. 5, 170, 371 S.W.2d 518 (1963). Finally, Kaestel agreed that he
had been convictions in Alabama was supported by photographs taken in Alabama and by fingerprints taken there and
matched by later ones taken in Arkansas. We find no substantial defect in the State’s prima facie proof of previous
convictions, the evidence being sufficient if it satisfies the jury beyond a reasonable doubt. Ark. Stat. Ann. 41-1003
(Repl. 197). (The case was tried before the effective date of Act 252 of 1981.)
We have reviewed all objections brought to our attention, whether argued or not, as is our practice in life
imprisonment cases. We are convinced that Kaestel had in fact no defense to the charge and that he received a
completely fair trial, free from prejudicial error.
Affirmed.