        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs June 22, 2011

               STATE OF TENNESSEE v. ALBERT W. BENTLEY

                  Appeal from the Criminal Court for Davidson County
                    No. 2009-A-376    J. Randall Wyatt, Jr., Judge


               No. M2010-01882-CCA-R3-CD - Filed December 29, 2011




J OSEPH M. T IPTON, P.J., concurring.


       I concur in the results reached in the majority opinion. My concern is with the
summary disposition of the Defendant’s due process claim of an impermissibly suggestive
photographic lineup. The majority opinion relies on State v. Butler, 795 S.W.2d 680, 686
(Tenn. Crim. App. 1990), to conclude that the analysis provided in Neil v. Biggers, 409 U.S.
188 (1972), need not be used if the identification process was not “unduly suggestive.”
“Unduly suggestive” is not a term used in Biggers, which focused on suggestive and
unnecessarily suggestive identification procedures. Biggers, 409 U.S. at 198-200.

        In the present case, the victim testified that he was aware that the police had identified
someone through fingerprints and that he assumed the person’s photograph was among those
he was shown. In Simmons v. United States, 390 U.S. 377, 384-85 (1968), the Court noted
the potential for misidentification from photographs, but it recognized that circumstances can
require immediate action that the use of photographs can enable. I note that the police had
identified the Defendant as a suspect before going to the victim, but nothing in the record
indicates that they attempted to prepare a regular lineup.

        Given the use of the photographic lineup and the victim’s belief that the person
suspected by the police would be in that lineup, I believe the record justifies consideration
of the issue under the analysis provided in Biggers. My belief avails the Defendant nothing,
though. In short, this case involved a daylight robbery in which the victim called 9-1-1 while
he still viewed the assailants. The description he provided was similar to that of the
Defendant. In corroboration, the police had the Defendant’s fingerprint. I do not believe the
record shows a substantial likelihood of misidentification from the photographic lineup
procedure.
 ____________________________________
 JOSEPH M. TIPTON, PRESIDING JUDGE




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