OTT, Judge, dissenting.

The trial court ruled that the photographic identification procedures were impermissibly suggestive and therefore tainted both the photographic and in-court identification. I disagree.

The first consideration is the scope or appropriateness of our appellate review. It should go without saying that the appellate court should not substitute its conclusions for those of the trial court upon conflicting evidence or facts. It should be equally clear, however, that the appellate court must look to the evidence to determine whether the existing conflicts are on matters relevant and material and whether there is any competent and substantial evidence to support the conclusion reached by the trial court. The appellate tribunal is not foreclosed from review of the trial court's determination but is limited to considering whether the evidence (1) is conflicting on matters material to its decision; (2) supports the ruling or result.

It therefore becomes necessary that the evidence or facts of this case be considered in some detail. The facts were presented to the trial court in a pretrial motion to prohibit any identification of this particular defendant (appellee herein) by the elderly victim of an aggravated assault. The ground for the motion was that the initial police identification procedures were impermissibly suggestive and therefore tainted both the photographic identification and any in-court identification the victim might make.

After being assaulted at about 2:00 a.m. on February 3, 1977 the victim was taken to the hospital. After being treated and released he went to the police department at about 10:00 a.m. — or about 8 hours after the assault. At this time, he was given a photo tray which contained approximately 150 photographs.

The investigating officer and the victim were the only two witnesses to testify at the evidentiary hearing conducted about 3 1/2 months later.

With reference to the photo identification process, the officer testified as follows. The officer started the victim on the tray. About 15 minutes after the victim began looking through that tray, it came to the officer's attention that the appellee and two others had been arrested about the time of the assault in the vicinity of the assault. The officer testified as follows:

A. The report was brought to my attention that the Defendant and two other subjects had been arrested around the time — downtown in the vicinity of downtown Clearwater. Detective Butler brought it to my attention, and with this we called downstairs to Records and we checked to see if any of these subjects had any kind of record, criminal record, with us, which they did.

We obtained photographs of all three subjects. I would say the time period we are speaking of now is probably 20 or 30 minutes by the time the pictures were printed. The pictures came upstairs to me. Mr. Fox [the victim] was still going through the tray, the first tray of pictures. I would say he had gone through maybe 50 or 60 photographs. It was hard for me to say. He was taking them out and setting them on the desk.

I walked into the room, he had a — I had instructed him since they were in alphabetical order to take them out between index cards, the pictures, and go through them one by one, and instead of getting them out of alphabetical order, and he was going through them.

He laid these pictures on the desk that I had obtained through the Records section and I told him, I said, "When you finish going through those photographs, would you please look at these photographs?"

Q. Those were the three that were in your hand?

THE COURT: Those three?

A. Yes, just those three.

Q. Who was those three?

A. The Defendant there and Carpenter and Thomas.

Q. All right.

A. He looked at the pictures of Carpenter — he looked at the pictures of all three of them. Tentatively at that time he made identification of Carpenter and Thomas. He wasn't quite sure about the Defendant Sepulvado. I told him, I instructed him to go back, continue going back through the rest of the photographs. In other words, continue to finish the tray of photographs which he was looking at which he did.

The officer also testified that the photo tray contained pictures of white males only.

The victim testified that the photo tray which he had been given contained photographs of both black and white males. Moreover, the victim testified as follows:

Q. . . . while looking at these photographs, did [the officer] add any photographs, to your knowledge, to the group of photographs?

A. Not to my knowledge.

Q. How did he ask you to look at the photographs?

A. Just told me to go through them.

Q. Did he specifically point out any individual?

A. No, he didn't. They were all on the desk.

Q. Did he suggest in any way who might have been the person who assaulted you?

A. No, he didn't.

The victim testified that he put about six photographs aside in the process of looking through the entire photo tray. He stated that he subsequently narrowed the six photographs to three — the defendant and his two codefendants.

The officer testified that on the day of the assault, the victim at first hesitated to identify the older file photo of appellant. [The older file photo showed him with a full beard.] The officer testified as follows with reference to the victim's identification:

[H]e [the victim] believed that Sepulvado [the appellee], the picture of him, he believed at that time he had a full beard on the picture, and [the victim] said that if the subject did not have the beard that would be the other subject, the third subject that would have assaulted him.

Q. The third subject who did not have the beard?

A. Right.

On the day of the assault the officer had a new picture made of the appellant following his arrest. When this photo became available it was placed in a photo pack which included pictures of four other individuals. The photo pack was shown to the victim on the day after the assault. The officer testified that the following then occurred:

A. Well, he made positive identification of Sepulvado because of the fact he did not have a beard at the time of the arrest.

In other words, the picture we had obtained through the Records section was several years older, or older, and he did have a full beard.

Q. But the picture he used to identify Mr. Sepulvado did not have a full beard?

A. Right, correct.

At the suppression hearing some 3 1/2 months later the victim stated:

Q. Now, the three suspects that — subjects that you say attacked you that night, did any of the three or all of the three have beards?

A. All three had beards, yes.

Q. Full beards?

A. Full beards.

Q. You are sure of that?

A. That is right.

Q. Would you describe the visual features of the three individuals you say attacked you?

A. Well, one of them had blond hair, blond beard. The other two were the same sort of beard as he has sitting over there. One was dark bearded, brownish. One was a blond beard and the other was a dark beard, five-eleven, and the other one was about six-two.

Q. All right, now, you mentioned "seated over there," you referred to the beard?

A. Yes.

Q. Look at that man. Does he have a beard?

A. Except his beard comes up a little bit now.

Q. What do you mean "now"?

A. In other words, before he had a fuller beard.

Q. What?

A. Before his beard was fuller. Now it is trimmed up.

The victim's testimony with reference to the appellee's beard is somewhat confusing. In an attempt to understand it, I should note the testimony of the officer with reference to the beard of the appellee:

Q. . . . did Mr. Sepulvado have facial hair?

A. When?

Q. At the time of the arrest, the time of the assault?

THE COURT: At the time of the arrest.

A. At the time of the arrest I believe he had long sideburns like muttonchops.

THE COURT: Like he has now?

A. Yes.

The victim made no statement to the officer or at the hearing that indicated a poor view of this assailant when assaulted or any doubt as to the certainty of his identification of the appellee as that assailant. Neither can I find, in the victim's testimony, any indication of impermissibly suggestive identification procedures.

The trial court concluded, however, that the differences between the testimony of the victim and the officer, together with other weaknesses he thought existed in the victim's testimony, rendered the entire testimony of the victim unworthy of belief. Reasonable men may differ as to the extent of any real conflict and the significance or meaning of such as do exist. The believability or credibility of a witness and the weight to be given certain facts or testimony are normally the exclusive or peculiar function of the jury. If the trial court is saying that such conflicts or weaknesses in the victim's testimony caused it to disbelieve the victim's identification then this constitutes an improper invasion of the jury function.

The trial court was led away from the primary consideration of the identification procedures employed to a consideration of vagaries, inconsistencies and conflicts it believed were demonstrated in the victim's testimony and their bearing on his credibility. Whether or not a jury would choose to disregard the victim's identification because of any meaningful discrepancies in other areas of his testimony and thereby perhaps conclude the state had not carried its burden of proof — including identification — is an entirely different question from that of whether the procedures employed were impermissibly suggestive so as to be the likely cause of the victim's identification of appellee.

Assuming that the trial court chose — as it certainly could — to reject the testimony of the victim we must then consider the question of whether the evidence, exclusive of the victim's testimony, establishes that the identification procedures strongly suggested either a clear danger of misidentification or that the appellee was the assailant.

I am left with the officer's testimony, then, as the only believable or credible testimony as to the procedures employed or the surrounding facts and circumstances.

In this court's recent opinion in Baxter v. State, 355 So.2d 1234, 1237 (Fla.2d DCA 1978) we pointed out that "[d]ue process requires that evidence posing . . . a high danger of misidentification be withheld from consideration by the jury." However, we went on to hold:

The degree of danger of misidentification required for exclusion of the evidence is appropriately high so as not to deprive the jury of evidence which is reliable despite the somewhat suggestive procedure and so as to preserve the jury's function to weigh the evidence. Once threshold reliability is established, the accused may employ the traditional methods for testing the weight which the jury should attach to the evidence. The accused may use cross-examination, impeachment, rebuttal testimony, and closing argument to persuade the jury that the identification was mistaken. 355 So.2d at 1237-38.

Also on point is the statement by the Supreme Court of the United States in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968):

The danger that use of the technique [photo identification] may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error.

In Simmons the following rule was promulgated which is still in effect: "[c]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." [Emphasis supplied.] 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

In Baxter we held:

In order to warrant exclusion of evidence of the identification, the identification procedure must have been so suggestive, and the witness' unassisted ability to make the identification so weak, that it may reasonably be said that the witness has lost or abandoned his or her mental image of the offender and has adopted the identity suggested. 355 So.2d at 1238.

In Baxter the court went on to consider the totality of the circumstances:

In making this determination of threshold trustworthiness, the trial judge must consider the totality of the circumstances surrounding the extra-judicial identification. These circumstances will include:

(1) The ability of the witness to perceive and preserve a mental image of the offender;

(2) The method of identification employed;

(3) Accompanying conversation or actions;

(4) The positiveness and manner of the witness' identification;

(5) Whether the witness expressed doubts about the selection or failed to identify the accused. 355 So.2d at 1238.

(1) The opportunity of the witness to view the criminal at the time of the crime.

(2) The witness' degree of attention.

(3) The accuracy of the witness' prior description of the criminal.

(4) The level of certainty demonstrated by the witness at the confrontation.

(5) The length of time between the crime and the confrontation. 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411.

I see nothing in the officer's testimony as to the procedures employed that casts doubt on the threshold trustworthiness of the victim's identification of appellee.

I would hold that the identification procedure herein was not impermissibly suggestive according to the rules as promulgated in Simmons and interpreted by this court in Baxter.

Support is also found in other recent decisions of the United States Supreme Court, the lower federal courts and the courts of Florida. A close examination of the facts of these cases and the courts' application of the Simmons rule to those various factual situations, indicates that the facts in the instant case fall short of demonstrating the "very substantial likelihood of misidentification" necessary to mandate the court taking the case from the jury.

In four recent cases identification procedures were held to be permissible.

(1) Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The Court held admissible an in-court identification by a witness who had first observed his assailant in the headlights of a passing car. As in our case, the initial identification was at night. The witness in Coleman testified that he observed his assailant "face to face" and that he "got a real good look at him."

(2) In Simmons, supra, the Court stated that the circumstances of the case created "little chance that the procedure utilized led to misidentification of Simmons." 390 U.S. at 385, 88 S.Ct. at 971, 19 L.Ed.2d at 1254. The Court pointed out that the witnesses "were shown the photographs only a day later, while their memories were still fresh." 390 U.S. at 385, 88 S.Ct. at 972, 19 L.Ed.2d at 1254. In our case, the victim was shown the file photographs and photo tray on the same day as the assault and was shown the photo pack on the day after that.

(3) In Neil, supra, the Court held that even though the show-up procedure utilized was unnecessarily suggestive, there was, under the totality of the circumstances, no substantial likelihood of misidentification. This was so, even though there had been a seven month lapse between the alleged rape and the confrontation. In our case, the identification was made with much greater speed.

(4) In United States v. Allen, 497 F.2d 160 (5th Cir. 1974) the victim — after consuming "eight or ten beers" — was lured into a house by a female where he was hit over the head, and then driven to a remote area where he was stabbed by two males. By his own testimony, the victim's initial observation of his two assailants whose pictures he later identified was marred by poor lighting conditions. The court upheld the identification notwithstanding the drinking, the blow to the head [received before he viewed his assailants] and the poor lighting conditions. Of course, in the instant case the victim had nothing to drink and was able to view his assailants before being assaulted in any way.

In two other cases identification procedures were held to have violated due process.

(1) In Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) the witness failed to identify the defendant despite a suggestive line-up. At an ensuing show-up the witness could make only a tentative identification. Ultimately, at a second line-up, in which the defendant was the only person who also appeared in the first line-up, the witness was able to muster a definite identification. All of the identifications were held inadmissible, the Court observing that the identification was "all but inevitable" under the circumstances. 394 U.S. at 443, 89 S.Ct. at 1129, 22 L.Ed.2d at 406.

(2) In Hamilton v. State, 303 So.2d 656 (Fla.2d DCA 1974) this court held that a photographic identification of the defendant was impermissibly suggestive and tainted a later in-court identification. In that case, the victim picked appellant's photo out of a photo pack of five. However, four days later, she expressed doubt and asked to see the photos again. After narrowing the five photos down to two, she selected a picture of the other person. A policeman there present then said that she had selected the right photo the first time and suggested she try again.

In both Foster and Hamilton the facts were so strong (in contrast to the instant case) that there was no question that there was an impermissibly suggestive police procedure which tainted the identification.

I would reverse the order of the trial court suppressing the identification testimony and remand for further proceedings accordingly.