¶1(concurring in dissent) — I agree with the majority that the trial court did not err in excluding expert testimony on the reliability of eyewitness identification and in determining that there was no prosecutorial misconduct when the prosecutor commented on the defense’s failure to produce a witness. I disagree, however, with its conclusion that the search of Cheatam’s shoes was constitutionally permissible under the fourth amendment to the United States Constitution. As this issue is determinative, I concur in the result Justice Sanders would reach.
¶2I write separately because I disagree with Justice Sanders’ conclusion that the decision in State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980), was also based on article I, section 7 of the state constitution. As the majority here observes, in Simpsonfive justices determined that the search at issue violated the Fourth Amendment. There was, however, no decision based on the state constitution because one of the five justices in the majority, Chief Justice Utter, expressly stated that it was unnecessary to apply the state constitution once the court determined that the search violated the federal constitution. Id. at 192 (Utter, C.J., concurring). Nevertheless, Simpson’s Fourth Amendment holding is binding under the doctrine of stare decisis unless this court determines that it is incorrect or harmful. State v. Robbins, 138 Wn.2d 486, 494, 980 P.2d 725 (1999). The majority fails to demonstrate that Simpsonis incorrect or harmful. Therefore, I dissent.