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Dissenting Opinion

DeBruler, J.

I dissent from the majority holding that the witness Harry Osterman was properly allowed to identify appellant during trial. On appeal it is undisputed that the witness was subjected to an impermissibly suggestive photographic display. After the witness had identified one Buggs, whom the police did not believe to be involved in the robbery, both from photographs and from a corporeal line-up, the police conducted the November 7 photographic display, described in the majority opinion, which was conceded at trial to be improper. Thereafter, within a week of trial, Osterman was shown photographs by the prosecutor. The majority correctly observes that the witness might nonetheless properly identify appellant at trial if the basis of the in-court identification is independent of the suggestive display. The majority is also correct in noting that two groups of factors are considered in determining whether an independent basis exists: *585those generally relating to the witness’ opportunity to observe the offender, and those relating to the reliability of his recollection. But having recited the correct rule the majority fails to apply it.

Mr. Osterman’s “opportunity to observe” the robbers was less than optimal. He testified that both men wore “golf hats” and sunglasses so large that he at first took them to be masks. One robber held a gun on Osterman, the other, whom Osterman identified as appellant, covered Mrs. Russell. The witness testified that his attention was naturally focused on the man holding him at gunpoint. His chief view of the other gunman was from the side. Thus the witness viewed the offender from the side, while the latter’s features were obscured by hat and sunglasses, and while the witness’ attention was distracted.

The “reliability of recollection” evidence was even less favorable. The witness gave police fairly extensive descriptions of the gunman, but these descriptions were similar to each other and to his description of a customer who left shortly before the robbery. There is nothing in the record to indicate whether appellant and his co-defendant Williams were similar in appearance. More significant is Osterman’s misidentification of Buggs within two weeks of the crime, both by photograph and in person. Also critical is Osterman’s inability to select appellant’s photograph during the in-trial suppression hearing, despite his being shown photographs of appellant, Williams, and Buggs in the prosecutor’s office less than a week before. In Whitt v. State, (1977) 266 Ind. 211, 361 N.E.2d 913, and Parker v. State, (1976) 265 Ind. 595, 358 N.E.2d 110, this Court reviewed numerous cases in which “independent bases” were found. In none of those cases was such confusion on the part of the witness shown, and this Court has never found an “independent basis” for an in-court identification under circumstances such as these.

I agree that in reviewing the trial court’s finding of an independent basis for the in-court identification we should defer to the trial court’s superior opportunity to receive and consider the evidence; that superiority is marked in this case *586because of the confusion of the record of the suppression hearing photographic display. But the trial court could not reasonably find “clear and convincing evidence” of an independent basis for the in-court identification, as required by Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193.

The ban against suggestive identification procedures is, for obvious reasons, imposed by the “fundamental fairness” requirements of the due process clause. Stovall v. Denno, (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The protection which this rule affords defendants against identification testimony implanted in the mind of a witness by improper suggestion would be hollow indeed if an independent basis were found in this case. The rule is grounded in the difficulties inherent in recognition and identification of one person by another. If a brief exposure to the offender were sufficient to produce an unquestionably reliable image in the witness’ mind, there would be no danger of suggestion and no reason for the Stovallrule. Since we do recognize the danger of influencing a witness’ identification by suggestive confrontation, we must require something more than a minimally adequate opportunity to observe the offender as the “independent basis.” Otherwise the exception will swallow the rule, and the prohibition against suggestive confrontations will be meaningless.

Prentice, J., concurs.

Note. — Reported at 365 N.E.2d 771.

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