### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A pr il 11, 200 6 S es sio n
STA TE OF TEN NES SEE v. CO REY BIGGS

Direc t Appeal from the Circ uit Court for Lake Coun ty No. 04-CR -8576 R. Lee Moore , Jr., Judge

No. W2005-01569-C CA-R 3-CD - F iled Jul y 21, 2006

Following a jury

trial , the def

endant, Core y

Big g s, was convic ted of sale of less than .5 g rams of
cocaine, a Class C felony , and wa s sentence d as a multiple offe nder to e ight y ear s in the Depa rtment of Corre ction. On appeal, he arg ues t hat t he evidence is insufficient to support his conviction and that the trial court erre d by not suppressing his out-of-court identification by a p o l i ce office r. F oll ow ing ou r r e vie w, we a ff irm th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which N OR MA M C G EE O G LE , J ., joined. J.C. M C L IN , J ., filed a dissenting opinion.

Ti mothy B oxx, Dy e rs bu rg , T e nn e sse e , f or the app e lla nt, Cor e y

B ig g s.

Paul G . Summe rs , Atto rn e y Ge ne ra l and Re po rt e r; B ri a n Cla y John so n, As sis ta nt A tto rn e y Ge ne ra l; C. Phil lip B ive ns , Dis tr ic t Atto rn e y Ge ne ra l; an d K are n B urns , A ssi sta nt D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.
OP IN ION

F AC TS
Ag ent Robert Harrison of the W est Tenne ssee Violent Crime and Drug Task F orce testified that he wa s the ag ent i n char g e for the Twe nty -Ninth J udicial District, which include d Dy er a nd L ake Counties. He said he pa

rticipated in a “stree t level drug operation” on J anuary 26, 2004, with Office r To ddTh a y e r o f the Dy ers bu rg Pol ic e De pa rt me nt anda

c on fi de nti a l in fo rm a nt, To ny F ra nk s. Offic er Thay er, w ho had re ceive d specia l training throug h the t ask force, w as g iven $100 to make the dr ug pu rc ha se a ndhis a uto mob ile wa s e qu ipp e d w ith a ud io andvid e o r e c or din g e qu ipm e nt. Although A g ent Har

rison was in a se parate vehicle , he could he ar the conver sations in Office r Thay er’ s vehicle via

the monitoring e quipment. Franks subsequently made c ontact with a third man in Ridgely

who instructed Franks a nd Offic er Thay er to drive to R o b erts Bay ou Road wher e they-2-

we re tol d to drive to a

“ T” int e rs e c tio n d ow n th e ro a d a ndg e t ou t of the ve hic le . T he y

su bs e qu e ntl y returne d to the vehicle and drove to their pre-ar rang ed meeting location wher e Officer Thay er g ave Ag ent Har

rison what appea

red to be six rocks of cra ck cocaine. The substanc e wa s later se nt to the T en n es s ee Bu re au o f Inv es t i gat i o n fo r t es t i n g. Ag ent Har

rison acknow ledg ed that he did not see the defe ndant but sa id the defe ndant was ide nti fi e d b y

F rank s, the c on fi de nti a l in fo rm a nt. Harris on la te r o btaine d a drive r’ s li c e ns e photogr aph of the defe ndant which he showed to Off icer Thay er a bout two mon t h s after

the drug buy . I n Har

rison’s opinion, police offic ers ha ve a be tter memory and ca pacity fo r recall than ordinary citizens because it is t heir “ duty to remembe r who [they ] buy [] narc otics from.”

Offic er Todd T hay er testified that he had be en an of fice r with the Dy ersbur g Police Depa rtment f or over eleve n y ear s, had worke d in narc otics since 2000, and w as cur rently the serg eant over the narc otic unit and bike unit. He said he had attended “seve ral schools, meth schools, seve ral other drug relate d training on street level drug s.” He was assig ned to t he drug task forc e in Octobe r 2003 and said that on January 26, 2004, h e m et wi th Ag ent Har rison, other a g ents, and the
c on fi de nti a l in fo rm a nt i n L ake Cou nty . O ff ic e r T ha y e r’ s v e hic le wa s e qu ipp e d w ith a n e le c tr on ic audio transmitter whic h enable d the ag ents in the other ve hicle to hea r what was said in his vehicle. Af te r b e ing su pp lie d with $1 00 of “ bu y mon e y ,” Of fi c e r Th a y e r an d the inf

orma nt dr ov e to R idg e ly wher e they wer e approac hed by a man the i nformant knew. Officer Thay er sa id the man ca me up to the passeng er’ s side of hi s v eh i cl e, t h er e wa s nothing obstruc ting his view of the man, and the man’s ra ce w as blac k. Fr anks and O ffice r Thay er a sked the man about pur chasing $100 worth of
cra ck coc ai n e a n d w e r e to ld to d r iv e to Ro b e r ts B a y o u Ro a d w h e r e th e y w a it e d o n th e s id e o f the road f or seve ral minutes bef

ore the man drove by

and motioned fo r t h em t o fol low him. Office r Th a y e r s a id h e h a d a c le ar v ie w o f th e man w h o d r o v e b y a n d th a t h e w a s th e s a me man who ha d approa ched the m in to wn. They then followed the man to a “T ” interse ction wher e the man mot ion e d f

or the m to g e t ou t of the ir ve hic le a nd wa lk ov e r to him

. Th e ma n ins truc te d the m to ra ise their shirts, and they

complied. The ma n then hande d Offic er Thay er se vera l rocks of c rac k coca ine, and Tha y er g ave him the $100. Of fice r Thay er said he was standing “[m] ay be a couple of fe et” f

rom the man during the transa ction and estimated his “f ace time” wit h the m an as “ may be five minutes.” Acc ording to Thay er’ s report, the transa ction took place at 12:25 p.m. in “broad day light.” O ffice r Thay er a nd the i nformant then returne d to their vehicle and drove back to the me eting place wher e Thay er turne d the drug s over to Ag ent Har rison.

Of fi c e r T ha y e r s a id that, a t the tim e of the tr a ns a c tio n, he on ly kn e w the ma n w ho so ld h im the c oc a ine “ thr ou g h th e CI .” Ap pr oximate ly tw o months late r, he ide nti fi e d th e de fe nd a nt f ro m a ph oto g ra ph a s “ the su bje c t th a t so ld m e the c ra c k co c a ine a t the ‘T ’ int e rs e c tio n in J a nu ary .” He sa id the def endant’ s name wa s not on the photogr aph, and his a ppear ance on the day of the drug buy was substantially the s ame as his appear ance in the photogr aph. Of fice r Thay er sa id he re membere d the defe ndant “due to the circ umstances of following way

out in the county .”

On c ro ss- e xami natio n, Of fi c e r T ha y e r s a id that he ha d w or ke d a s a n u nd e rc ov e r o ff

ic e r i n L ake County

five or six ti mes and that a rre sts had been made on eac h occa sion. He said he did not-3-

know t he defenda nt prior to the drug buy but did know t he confidential informant and had worke d with him on previous occa sions. He a cknowledg ed that he c ould not identify the def endant in court (fourteen months afte r the drug buy ) and tha t he was r ely ing o n h is previous identification of the defe ndant’s photog raph w hich he view ed two months after the drug buy

. Spe c ia l Ag e nt F or e ns ic Sc ie nti st Da na Ros e of the Te nn e sse e B ur e a u of I nv e sti g a tio n Crime L aboratory

testified that she a naly zed the substance and determined it to be .4 gr ams of coc aine.

Offic er Thay er, r eca lled by the defe nse, testified that the confide ntial inf ormant had said, on the day of the drug buy , “[T] h er e’ s Corey Big g s, we’r e g onna g et his ass.” Thay er e x plained that he and the informant had be en driving for some time and had not see n any one the informant knew until he saw the defe ndant who was on foot. After the video/audio tape of the drug transac tion was play ed, Of

fice r Thay er acknow ledg ed that it r efle cted that he first saw the de fenda nt for about ten seconds a nd then for an additional “minute thirty -five, a minute forty ” out in the country

. The twe nty -eig ht-y ear -old defe ndant testified that he and his c ousin, Jerrial Tha rps, wer e at his girlf riend’s house when they

saw Franks a nd another man drive by in a gray car . The de fenda nt said one of the men asked him if he had “something for a hundred,” and he knew what the man w as talking a bout. The def

endant said he shook his head “no” but did not respond out loud because he had h ea rd t h at Fr anks wa s working with the police. The defe ndant said he a nd Fr anks had “ bad blood” betwe en them. Tha rps t h en p ointed “that way ” and told the men w here to meet him. The de fe nd a nt t oldTh arp s th a t Frank s w a s w or kin g fo r the po lic e , but Th arp s sai d he did no t kn ow him
a ndthe n le ft

in the de fe nd a nt’ s c ar. Th e de fe nd a nt s a id h e “ g ue ss[e d]” Th arp s so ld the me n “ so me stuff. ” Asked why

Fr anks would try

to buy drug s from him or Thar ps, the defe ndant re plied, “Probably beca use I was in the g ang round about that time.” The defe ndant acknowledg ed that he had bee n involved in pr evious drug transac tions but said he stopped selling drug s in F ebrua ry and had moved to Union City . The de fenda nt identified his driver’ s license photog raph a nd acknow ledg ed that he had a prior conviction for ag g ravated robbery

. He rec alled being questioned by Ag e nt H arriso n a nda c kn ow le dg e d th a t he did no t te ll H arriso n th a t it wa s T ha rp s w ho ha d s old the drug s that day

. AN AL YSI S

I. Su ff iciency of the Evid ence
The defenda nt arg ues t hat t he evidence was insufficie nt to support his conviction for sale of less than .5 g rams of c ocaine , say ing that the State prese nted insufficient evidenc e and the trial court
err ed in not g ranting his moti on for a cquittal.

I n considering this issue, we apply the familiar rule that wher e sufficie ncy of the convicting evidenc e is cha lleng ed, the r eleva nt question of the re viewing court is “whe ther, a fter vie wing the evidenc e in the light most favora ble to the prosec ution, any rational trier of fact could have f ound the essential e lements of the c rime bey ond a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307,-4-

3 1 9 , 9 9 S

. C t

. 2 7 8 1 , 2 7 8 9 , 6 1 L

. E d

. 2 d 5 6 0 , 5 7 3 (1 9 7 9 ); s ee al s o T en n

. R

. Ap p

. P

. 1 3 (e ) ( “F i n d i n gs o f g u i l ti n c r i m i n a l a c t i o n s w h e t h e r b y t h e tr i a l c o u r to r

j u r y s h a l l b e s e ta s i d e i f

t h e e v i d e n c e is ins uf fi c ie nt t o s up po rt

the fi nd ing s b y

the tr ie r o f f

a c t of g uil t be y on d a

re a so na ble do ub t.” ); Sta te
v. Evans, 838 S.W .2d 185, 190-92 (Tenn. 1992); State v. Ander son, 835 S.W .2d 600, 604 (T en n. Crim. App. 1992). All questions involvi ng the cre dibilit y of witnesses, the weig ht and value to be g iven the evide nce, and all fac tual issues are resolved by the trier of fac t. See State v. Pappas, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987). “A g uiltyverdic t by the jury , approve d by

the trial judg e, acc redits the testimony

of the witnesse s for the State and resolves all conflicts in fa vor of the the ory of the State.” State v. Gra ce, 493 S.W.2d 474, 476 (Te n n

. 1 9 7 3 ). Ou r supreme court state d the rationale for this rule:

This well -s et t l ed rule re sts on a sound foundation. The tria l judge and the jury see the witnesses fa ce to face , hear their testimony

and obser ve their de meanor on the stand. Thus the trial judge and jury are the primary

instrumentality

of justice t o d e t e r m i n e t h e w e i g h t a n d c r e d i b i l i t y t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s

. In the t ri al fo ru m alone is there human atmosphere and the totality of the e vidence
c a nn ot b e re pr od uc e d w ith a writt e n r e c or d in thi s Co urt.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W .2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves the pre sumption of innocence with which a defe ndan t is ini tially

cloake d and re place s it with one of g uilt, so t hat on appe al, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

. To obtain a c onviction for sale of less than .5 g rams of a Schedule I I controlled substanc e, c oc a ine , th e Sta te wa s r e qu ir e d to sh ow be y on d a re a so na ble do ub t th a t the de fe nd a nt kno wi ng ly so ld less than .5 g rams of c ocaine . Tenn. Code Ann. § 39- 17-417(a )(3) , (c) (2)( A) (Supp. 2005). O ffice r Thay er te stified as t o his buy ing c ocaine from a ma n he later identified as the de fenda nt. Ag ent Harr is o n mo n it o r e d th e tr a n s a c ti o n th r o u g h a u d io e q u ip me n t, a lth o u g h h e d id n o t s e e th e per son fr om w ho m T ha y e r b ou g ht the c oc a ine

. S peci al Agent Ros e te sti fi e d th a t th e c oc a ine sa mpl e weig hed

. 4 g r a ms

. B y

th e v e r d ic t, th e ju r o r s o b v io u s ly b e li e v e d th e te s ti mo n y

o f th e St a te ’s witnesses and disbelieve d that of the defe ndant, as was their rig ht. Acc ording ly , we c onclude that the evidenc e is sufficie nt to sustain the conviction.

II. Out -o f-C our t I de nt ific at ion of D e fend ant

Th e de fe nd a nt a

rg ue s th a t th e pr e tr ia l id e nti fi c a tio n o f h im b y Of fi c e r T ha y e r w a s “ un du ly sug g estive” a nd “akin to a ‘ show-up’” and that the tria l court should have suppressed the identification. The State r esponds that the def endant ha s waived the issue for failure to file a motion in limi ne see king to suppress the i dentifica tion pursuant to Tenne ssee Rule of Criminal Proce dure 12(b)( 3) and ( f). I n his r eply brief, the defe ndant arg ues that this court should not conclude that the issue is waived be cause the State did not raise this arg ument in the trial court a nd, in fac t, that court
c on sid e re d th e de fe nd a nt’ s mo tio n o n th e me ri ts. We w ill re vie w the se c la ims

.-5-

As previously

set out, Offic er Thay er, viewing a drive r’s lice nse photog raph of the def endant about two months afte r t he transaction, t he photogra ph not bearing the defe ndant’s name , identified him as the s eller of the cocaine. The basis for the de fenda nt’s complaint in this reg ard is that Of fice r Thay er w as shown only

a sing le photog raph, thus fatally tainting the ide ntification.

I n Neil v. B igg ers, 409 U.S. 188, 199, 93 S. Ct . 375, 382, 34 L . Ed. 2d 401 (1972), the United Sta te s Sup re me Cou rt e sta bli sh e d a tw o- pa

rt te st to de te rm ine wh e n a de fe nd a nt’ s d ue pr oc e ss rig hts ha ve be e n v iol a te d b y a pr e tr ia l ide nti fi c a tio n. Ou r s up re me c ou rt ha s a do pte d th e sa me sta nd ardto be app lie d b y

ou r c ou rt s f

or a sse ssi ng wh e the r a

pr e tr ia l id e nti fi c a tio n h a s v iol a te d th e du e pr oc e ss ri g hts of the de fe nd a nt, the re by ta int ing a ny in- c ou rt ide nti fi c a tio n ma de by the wi tne ss. Se e B e nn e tt v. State, 530 S.W .2d 511, 512-15 (Te nn. 1975). Unde r this test, the c ourt first consider s whether the identification proc edure itself was unduly or unnec essarily sug g estive. B igg ers, 409 U.S. at 199, 93 S. Ct

. a t 3 8 2

. I f

th e identif

ic a ti o n p r o c e d u r e is f

o u n d to h a v e b e e n s u g g e s ti v e , th e c o u r t n e xt
co n s i d er s “w h et h eru n d ert h e t o t al i t y o f t h e c i rc u m s t an ce s t h e i d en t i fi ca t ion was re liab l e e v en t h o u gh the conf rontation proce dure w as sug g estive.” I d. (interior quota tions omi tt ed ). T he fa ctors to be
c on sid e re d in e va luatin g the re lia bil ity of a n id e nti fi c a tio n in c lud e : ( 1) the op po rtun ity of the wi tne ss to view the criminal at the time of the crime; (2) the witness’s degr ee of attention; (3) the a ccur acy of the witness’s prior description of the criminal; (4) the le vel of ce rt ainty demonstrated by

the witness at the confr ontation; a nd (5) the leng th of time betwee n the crime and the c onfrontation. I d. I f, howe ver, the court fir st determines th at t h e i dentifica tion procedur e itself wa s neither
un ne c e ssa

ri ly or imp e rm iss ibl y su g g e sti ve no r lik e ly to c re a te a su bs ta nti a l li ke lih oo d o f i rr e pa ra ble mis ide nti fi c a tio n, the re is n o n e e d to app ly the tot a lit y of the c ir c ums ta nc e s te st o utl ine d in B ig g e rs

. Se e St a te v

. L e o n J. Ro b in s a n d T ab a th a R. Wh it e , N o

. M 2 0 0 1

- 0 1 8 6 2

- CC A

- R3

- CD , 2 0 0 3 WL 1386835, at *9 (Te nn. Crim. App. Mar. 20, 2003) ( citing State v. B utler, 795 S.W.2d 680, 686 (Tenn. Crim. App. 1990) ), perm. to appeal de nied (Te nn. Oct. 13, 2003).

I n State v. Robinson, 146 S .W.3d 469, 516 (Tenn. 2004), c ert. de nied, __ U.S. __, 126 S. Ct. 14 29 (2 00 6) , our su pr e me c ou rt se t out the nu me ro us a uth oriti e s a s to the sta nd ardof re vie w t o be app lie d in a n a

pp e llate re vie w o f the tr ia l c ou rt ' s ruli ng on a mot ion to s up pr e ss:
Th e fi nd ing s o f f

a c t ma de b y th e tr ia l c ou rt a t th e he ari ng on a

mot ion to suppress ar e binding upon this court unless the eviden ce contained in the r ecor d preponde rate s ag ainst them. State v. Ross, 49 S .W.3d 833, 839 (Tenn. 2001). Absent a showing by

th e d efendant that the e vidence preponde rate s ag ainst the jud g me nt o f the tr ia l c ou rt , th is c ou rt mus t de fe r t o the ru lin g of the tr ia l c ou rt . St a te v. Cribbs, 967 S.W .2d 773, 795 (Tenn.) , cert. denied, 525 U.S. 932, 119 S. Ct . 343, 142 L . Ed. 2d 283 (1998).

I n considering this issue, we first will r eview in de tail the testimonyof Off icer Thay er. H e testified that he had been a police off icer for “ [a] littl e over

eleve n y ear s,” all of whic h he had spe nt with the Dy ersbur g Police Depart m en t . At the time of the trial, he was “ the serg eant ove r the
na rc oti c un it a ndbik e un it. ” As fo r s pe c ia lize d n arc otics tr a ini ng , h e sa id that he ha d “ be e n to
sever al schools, meth schools, seve ral other drug rela ted t raining on street leve l drug s.” He said that-6-

he ha d b e e n a ssi g ne d to the dis tr ic t vi ole nt c ri me a nddr ug tas k for ce in Oct ob e r 2 00 3, a ndits proce dure w as for

him and the conf

idential informant to ride tog ether in the vehicle and for Thay er to ma ke the drug purcha se. Thay er first viewed the defe ndant when he approa ched T hay er’ s vehicle, on the passenge r’s side wher e the informant was sitti ng , as t he defenda nt instructed where the y wer e to m e e t hi m. Th a y e r the n s a w a ndre c og nize d th e de fe nd a nt a ft e r h e a ndthe inf orma nt h a d g on e to this second location, the de fenda nt motioni ng for them to follow him. Thay er vie wed the de fenda nt a third time, afte r they had followed him, a nd described how the drug sale occur red a fter he and the informant exited their vehicle and appr oache d the def endant, a s he instructed the y do:

A. He made us g et up out of the c ar a nd we raised our shirts up and turne d around
so the re wa s n o w ir e s p re se nt.
Q. Al l r ig ht, no w. I

hate to g ive a way

secr ets , bu t if

the re wa sn ’t

a wi re pr e se nt, wher e wa s the audio transmitter?

A. I t was on my

person. Q. Okay , but not where y ou could see it when y ou pulled y our shirt up.

A. No, no.
Q. What happened the n?

A. At that time he had the crack coca ine i n his hand, he ha nded me se vera l rocks of crack co caine, straig ht from him to myhand and I then g ave him the one hundred do lla rs

. Q. Okay

. When y ou say he handed i t to y ou and y ou handed it to him, how fa r apa rt
we re y ou r f

a c e s?

A. May be a c ouple of fe et, may

be.
Q. An d, a g a in d id y ou kn ow that in div idu a l?

A. No , I didno t.
Q. Did y ou have any

problem see ing w hat that individual looked like?

A. No.
Q. Wha t ha

pp e ne d a ft e r y ou re c e ive d th e dr ug s?-7-

A. I g ave him the hundr ed dollars. My self and the C I go t b ac k in our vehicle and returne d to the meeting place

. Of fi c e r T ha y e r t e sti fi e d a s to his su bs e qu e nt i de nti fi c a tio n o f the de fe nd a nt:
Q. Offic er Thay er, [the drug sale] was in J anuary , J anuary 26 I believe; is that
c or re c t?

A. Ye s. Q

. A t th a t t im e d idy o u k n o w th e in d iv id u a l th a t y o u h a d d e a lt w ith n a me [s ic ]?

A

. O n l y t h r o u g h t h e C I.
Q. Did y ou have any

problem re membering what he looke d like?

A. No.
Q. Approxim ately

two months later – may

I approa ch Your

Honor?

T H E C O U R T : Y o u m a y. Q. Were y ou shown this photogra ph?

A. Ye s, I wa s. Q. And what did y ou do when y ou wer e shown that photog raph?

A. I I D’d the subjec t in the photogr aph as b eing the one that sold me the c rac k
cocaine on J anuary

and I – Q. Was that subject’s name any wher e on that photog raph?

A. No , it wa sn ’t

. Q. I f that had not be en the subject y ou boug ht it from would y ou have ha d any pr ob le m say ing it w a s n ot that su bje c t?

A. No.
Q. Okay . Did y ou still reme mber what that individual looked like?

A. Yes, I did.A l t houg h t he r ecor d i s not en t i r el y cl ear on t hi s mat t er , O f f i cer T hay er may ha ve s pent cl ose r t o t wo mi nu t es 1
wi t h t he d efend ant as t he sal e was occ urr i ng.
-8- Q

. Had y ou rec e iv e d tr a in in g a lo n g th a t l in e to b e ab le to id e n ti f y in d iv id u a ls li ke that?

A. This particular

one I just remember ed due to the c ircumstance s of following way out in the county , that’s the cir cumstance s on this case.

Asked on c ross-examination the total time he had been in the pr esenc e of the defe ndant on the day of the drug buy , Thay er r esponded, “ I ’m g onna g uess may be five minutes.” 1

On re dir e c t e xami natio n, Th a y e r sa id that, wh e n he vie we d th e ph oto g ra ph of the de fe nd a nt,

“ the re wa s n o q ue sti on ” that the de fe nd a nt wa s the pe rs on wh o ha d s oldthe dr ug s to him . H e sa id that, upon being shown the photogr aph of the defe ndant, he “identified him a s being the subject that sold me the cra ck coc aine at the ‘T’ inter section in J anuary .”

Sin c e the tr ia l c ou rt

de te rm ine d th is m a tte r o n th e me ri ts, we wi ll atte mpt to d o s o a s w e ll. Howeve r, our a

bilityin this re g ard is ha mpere d by the path selec ted by the def endant f or the issue. The de fenda nt’s oral motion to quash the identifica tion was first ra ised and then a rg ued after the jury ha d b e e n s wo rn . T he de fe nd a nt d id n ot r e qu e st a he ari ng ou t of

the pr esen ce of th e jury on his
mo tio n, wh ic h wa s ba se d so le ly up on the fa c t that Of fi c e r Th a y e r ma de his ide nti fi c a tio n fr om a single photogr aph. The motion was denied b y t h e trial court. After Offic er Thay er’ s direct testimonyhad bee n completed, the de fenda nt rene we d his moti on, ag ain asserting that the identification should be suppre ssed. The tria l co u rt again denied the motion. Although r efe rring g ener ally to the holding in B igg ers, ne ither at trial nor on appea l h as t h e d ef

en d ant ut iliz ed the specific Big g ers f

actor s in his arg ument. Howeve r, we will attempt to do so.
First, we note that Off

icer Thay er ha d three opportunities to view the def endant, a ll in broad day lig h t. T h e f

ir s t o c c u rr e d w h e n th e d e f e n d a n t c a me to th e p a s s e n g e r ’ s s id e o f T h a y e r ’ s c ar

and instructed Thay er and the informant to me et him at a differ ent location, and the second oc curr ed at the l o c a ti o n d ir e c te d b y th e d e f e n d a n t. T h a y e r ’ s th ir d v ie w o f th e d e f e n d a n t o c c u rr e d when they
wer e fa ce- to-fac e, the de fenda nt chec king T hay er f or a “wire ,” and as t hey then exchang ed money for dr ug s. Thus, Thay er vie wed the de fenda nt on three occa sions, was close to him on two of these, and wa s fac e-to-f

ace on the final oc casion. As f or Thay er’ s deg ree of attention, we note that he wa s acting as an unde rcove r ag ent making a purcha se of illega l dr ug s, an activity for whic h he had be en trained a nd in which h e wa s ex perie nced. T here is no basis to conclude that he was other than
a tte nti ve . A t tria l, w hil e Th a y e r d e sc ri be d th e pe rs on se lli ng the dru gs as a “m a le bla c k, ” thi s description was in response to the spe cific que stion, “What racewas he? ” The rec ord does not ref lect what description, if any , Offic er Thay er ga ve of the defendant following the transaction, for it does not contain copies of any reports or other pa

perw ork complete d by

Offic er Thay er f

ollowing the coc aine pur chase

. As to Thay er’ s level of c erta inty as to his identification, there was “ no question” that the person in the phot og raph w as the one who had sold the c ocaine to him. The total-9-

leng th of time Thay er ha d to view the def endant wa s two to five minutes, wi t h t h e lower fig ure ap p e ar i n g t o b e t h e m o s tl i k e l y.
Th us , th e de fe nd a nt’ s a

rg ume nt mus t f

a il f or se ve ra l r e a so ns . F ir st, he c ho se to m ake his motion and arg ument to the trial court with no proof be fore the court, appar ently believing that he
wa s ent itledto s up pr e ssi on a s a ma tte r o f l a w b e c a us e Of fi c e r T ha y e r h a d v ie we d o nly a sin g le ph oto g ra ph a ndc ou ld not ide nti fy the de fe nd a nt at tr ia l. Th e mot ion wa s r a ise d a ndarg ue d a g a in afte r Thay er had completed his direc t examination. The e vidence then in the re cord w as that Thay er had thre e opportunities to view the defe ndant, the final and longe st one being fac e-to-f ace . Thay er said he wa s certain of his identification whe n he viewe d the def endant’ s photogr aph.

Further, the de fenda nt’s arg ument fails to acknow ledg e that Of fice r Thay er w as a trained and
e xpe ri e nc e d p oli c e of

fi c e r andno t a

la y wi tne ss. Th e a uth oriti e s are c le ar that th is d ist inc tio n mu st be made

. See Manson v. Br athwaite, 432 U.S. 98, 115, 97 S. Ct . 2243, 2253 (1977) ( in assessing the deg ree of attention paid by the wit ness, t he court noted t hat “Glover wa s not a ca sual or passing observe r, as is so often the case with ey ewitness identification. Trooper G lover wa s a traine d police office r on dut y and spec ialized and dang erous duty when he called a

t the third floor of 201 Westland in Hartfor d on May

5, 1970.”); United States v

. Dr i n g, 9 3 0 F.2d 687, 693 ( 9th Cir. 1991) (identifications of single photog rap h o f d ef endant two weeks a fter e vent by customs ag ents not tainted beca

use ag ents “we re trained profe ssionals, e x pert at observing criminals, and eac h ag ent had a g ood opportunity

to view the per son on the pier during the night in question”) ; Thomas v. State, 775 A.2d 406, 420 (Md. Ct. App. 2001) (six-week de lay betwee n drug sale a nd office r’s view ing of single photogr aph did not make unreliable his in-court identification of defe ndant when of fice r had stood “within arm’s leng th, for three or four minutes unde r brig ht lig hts,” offic er’ s “entire attention was foc used” on de fenda nt,” and officer “wa s not a lay witness describing a criminal t o police; he
was a police officer making a mental note of what he had seen during the commission of a crime”).

Ba sed upon the proof befor e the trial court that Offic er Thay er, a train ed an d ex perie nced
narc otics office r, viewe d the def endant in the day light on three occ asions for a total of at lea st two min ute s, the la st a ndle ng thi e st o f the se be ing fa c e -t o- fa c e , an d two mon ths la te r w a s p os iti ve in h is identification of the de fenda nt from a photog raph, w e conc lude that the re cord supp o rt s t he trial
c ou rt ’s de te rm inatio n th a t th e mot ion to s up pr e ss w a s w ith ou t me ri t.

CO NC LU SION

B a se d upo n th e fo re g oin g a uth oriti e s a ndre a so nin g , th e jud g me nt o f the tr ia l c ou rt is aff irmed.

___________________________________ ALAN E. GL

ENN, JUDGE