State v. Wyatt

¶1I concur in the result reached by the majority; however, I write separately because I believe certiorari was improvidently granted. From my reading of the solicitor’s colloquy with the trial judge, the State acknowledged the procedure was inherently suggestive and then moved immediately to discuss the second prong of Biggers. Therefore, I believe the trial judge properly understood the State to have conceded the procedure was unnecessarily suggestive and couched her ruling in terms of whether a substantial likelihood of irreparable misidentification existed. Thus, I would dismiss the writ of certiorari as improvidently granted.