¶2I generally concur in the result reached by the majority because I agree that the testimony given by the police officer concerning his opinion of the accuracy of the original description of the intruders was inadmissible and prejudicial.
¶3However, I do not agree with my colleagues in their characterization of the photographic identification display as so impermissibly suggestive as to constitute a denial of due process. I concur that under Manson v. Brathwaite,432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), a two-step analysis should be applied. The first step in the analysis is to determine whether the out-of-court identification was so unnecessarily suggestive and conducive to a substantial likelihood of misidentification that the accused will be denied due process of law unless the reliability of the identification can be independently established by the second step of the analysis.State v. Courteau, R.I., 461 A.2d 1358, 1361 (1983); see Neilv. Biggers,409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401, 410-11 (1972); State v. Holland, R.I.,430 A.2d 1263, 1269 (1981).
¶4In determining whether an identification is sufficiently suggestive to exceed constitutional limitations, it is well to examine the standards that have been set by the Supreme Court of the United States. The basic standard was set forth in Simmonsv. United States,390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968), wherein the Court observed:
¶5 "[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood ofirreparable misidentification." (Emphasis added.)
¶6The only case in which the Supreme Court has determined that an identification procedure was violative of due process wasFoster v. California,394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). In that case the accused, who was nearly six feet tall, was first placed in a lineup with two others whose height was approximately five feet five inches or thereabouts. The accused was also wearing a leather jacket similar to that worn by the robber. The other two were not. Even under these circumstances the accused was not identified. Thereafter, he was brought face to face in confrontation with a witness. The witness still expressed uncertainty. A week or ten days later, another lineup was held with five men, of whom defendant was the only one who was in the first lineup. On this later occasion the witness identified the accused. Id. at 441-42, 89 S.Ct. at 1128, 22 L.Ed.2d at 405-06.
¶7The next case in which the Court held the identification procedure to be impermissibly suggestive was Neil v. Biggers,supra. In *619 that instance the victim of a rape faced the suspect at the station house in a one-to-one confrontation since no other persons were found to be available who might resemble the somewhat unusual physical characteristics of the accused. Although the showup procedure was found by the Court to be unnecessarily and impermissibly suggestive, the identification was ultimately determined to be sufficiently reliable so as to overcome a due-process challenge. Neil v. Biggers,409 U.S. at 201, 93 S.Ct. at 383, 34 L.Ed.2d at 412.
¶8In Manson v. Brathwaite, supra, the out-of-court identification by an officer from a single photograph was conceded by the State of Connecticut to be unnecessarily and impermissibly suggestive. The in-court identification, however, was determined to be sufficiently reliable in order to meet the requirements of due process. 432 U.S. at 117, 97 S.Ct. at 2254, 53 L.Ed.2d at 155-56.
¶9In applying the foregoing principles to the facts of the case at bar, I am of the opinion that the mere statement that some of the photographs included pictures of known associates of Nicholas Palumbo (who had already been identified as one of the intruders) was not so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. The display included a number of photographs of men other than defendant. The police did not suggest that any of Palumbo's known associates were probably present at the time of the instant criminal activity. I believe that this statement was not significantly more suggestive than that contained in State v. Courteau, supra, in which an officer suggested that there was a possibility that the guilty person might be presented in a photographic array. 461 A.2d at 1360. Whether articulated or not, there is always the implicit understanding by the witness as well as by the police that a person or persons represented by one or more pictures in a photographic array, or persons in a lineup may be suspected of participation in the crime to which the identification relates.
¶10Although I agree that it is better that the police make no suggestive comments when displaying either photographs or persons in a lineup for identification, we should be careful not to exceed the standards that the Supreme Court of the United States has set in determining the constitutional validity of confrontations for identification. A state court may neither exceed nor diminish the federal due-process standards established by the Supreme Court of the United States. See, e.g., RhodeIsland v. Innis,446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); South Dakota v. Opperman,428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Michigan v. Mosley,423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
¶11Since I believe we have set standards more stringent than those of the Supreme Court of the United States in respect to suggestiveness, I respectfully dissent from that portion of the majority opinion.