ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CACR 00-1290

June 20, 2001

SHUNN RIDDLE APPEAL FROM MONROE COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE HARVEY L. YATES,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Following a bench trial, Shunn Riddle was found guilty of aggravated robbery and residential burglary, and he was sentenced to serve ten years in prison. His sole argument on appeal is that the trial court erred in denying his motion to suppress an unconstitutionally suggestive photographic lineup that tainted the subsequent in-court identification of him. We disagree and affirm. Renee Graham testified that, when she arrived home with her two daughters late one night in December 1999, a man was standing in the corner of her bedroom with a revolver. Graham stated thatshe and her girls screamed and that the man hit her on the head with the revolver. She testified that the man asked her if she wanted to live and also told her to shut up. Graham stated that the intruder took her and her older daughter's purses and left. Graham described the intruder as a black male, 23 to 25 years old, and heavy set. She stated that he had a bandana on so she could see only his forehead, eyebrows, and eyes. She said she also noticed his weight and "the mannerism of his walk." Graham testified that the police had her view the photographic lineup without her daughters present and that the police made no sugges tions. She stated that she readily selected appellant's picture from the lineup and that it took about a minute for her to identify him. She further stated that she did not have any doubt that appellant was in her home that night. Graham also testified that the intruder's walk was "sloth-like" and that appellant's walk when he came into the courtroom was the first thing she noticed.

Whitney Graham, Renee's twelve-year-old daughter, testified that she picked appellant out of the photographic lineup within a minute or two. She stated that no one made any suggestions to her about which photograph to choose.

Officer Michael Partain testified that he prepared the lineup and that it was the first time he had done a photographic lineup identification process since his training at the police academy. Partain testified that he pulled seven photos from the mug shot folder and tried to match them up as close as possible to the physical description given by the victims. He stated that he showed the photographs to the victims individually and that it did not take either of them very long to identify appellant as the intruder. Partain testified that they both stopped on appellant's picture and said something like, "this one's pretty close" or "this looks like him, you know, resembles him." Partain conceded that the photographic lineup was the only type of identification process he conducted with the Grahams.

In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of circumstances and reverse only if the ruling is clearly erroneous or against a preponderance of the evidence. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999).

Appellant argues that the photographic lineup was unduly suggestive in that his photograph stood out from the other photographs because he was the only one with a large girth as the victims had described. He maintains that the victims saw only the intruder's eyes and part of his forehead and that the victims said only that appellant's photo was "pretty close," "looked like," or "resembled" the intruder. Finally, appellant complains that thepolice did not conduct any other identification procedure, such as voice identification.

In determining whether the in-court identification is admissible, we look first to whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitution ally suspect. Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996). It is the appellant's burden to show the pretrial identification procedure was flawed. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996). If there are suggestive elements in the pretrial identification procedure that make it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993). We find no such factors here. There is nothing in the record that would indicate that Officer Partain attempted to influence the victims in their identifications of appellant in the photographic lineup. Moreover, an accused is not entitled to have a lineup in which all the participants are identical. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

It is for the trial court to determine whether there are sufficient indicia of reliability surrounding the identification to permit their use as evidence, and it is then for the fact finder to decide what weight the identification testimony should be given. Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994). Even if the identification procedure is unnecessarily suggestive, testimony concerning it is admissible if the identification is reliable. Chism v. State, supra. When a photographic identification is followed by an eyewitness identification at trial, the conviction will be set aside only if the photographic lineup was so suggestive as to create a substantial possibility of misidentification. Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993).

We cannot say that the trial court clearly erred in allowing testimony about the pretrial photographic lineup.

Affirmed.

Stroud, C.J., and Pittman, J., agree.