RENDERED: AUGUST 14, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-001877-MR

RICHARD LEE CLARK APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE BARRY WILLETT, JUDGE

ACTION NO. 16-CR-001301

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

ACREE, JUDGE: Richard Clark appeals the Jefferson Circuit Court’s order 

denying his motion to suppress evidence. Finding no error, we affirm. 
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BACKGROUND

Around 7:00 a.m. on January 2, 2016, Patrick Richardson was 

awakened by the shouts of his neighbor, Tony Fox. Richardson went outside and 

saw Fox wrestling a person in his driveway. Fox told Richardson that the person 

was trying to steal tools from Richardson’s garage. At the edge of the driveway 

was a car with the engine running. Richardson’s tools were lying next to it. 

Richardson approached the would-be robber from behind and pulled

him to the ground. At various points, Richardson had his hands on the person’s

collar, arms, waist, and was face-to-face with the suspect. The police were called, 

but the suspect fled on foot, leaving the car and a jacket behind. 

When the police arrived, Richardson gave a description of the suspect

– a short, white male with blondish-brown hair. The police ran the tags for the car 

left running in the driveway. The vehicle was registered to Richard Clark. At the 

scene, police recovered the suspect’s jacket, which contained a prescription pill 

bottle. The name on the bottle’s label was Richard Clark. Several hours later, 

while waiting on the tow truck to remove the car, Officer McGaha retrieved a 

photograph of Richard Clark on the laptop mounted in his cruiser. Officer 

McGaha had no intention of showing Richardson the photograph; however, 

unbeknownst to Officer McGaha, Richardson walked up to the cruiser and saw the 

picture of Clark. Richardson immediately identified the man in the picture as the 
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person he wrestled in the driveway. Officer McGaha allowed Richardson to take a 

picture of the photo with his cellphone camera. 

Clark was arrested and indicted on the following counts: (1) firstdegree robbery; (2) first-degree burglary; and (3) being a first-degree persistent 

felony offender. He moved to suppress the evidence of Richardson’s 

identification. After a hearing during which Officer McGaha and Richardson

testified, the circuit court denied Clark’s motion. The court found Richardson’s 

notice of Clark’s photograph both inadvertent and fortuitous, and that his 

spontaneous identification of Clark was not unnecessarily suggestive. The circuit 

court concluded the identification was reliable based on the Biggers factors.1

Clark entered an Alford 2 plea of guilty, reserving his right to appeal 

the order denying his suppression motion. He was sentenced to a total of 

seventeen years. The judgment was entered on August 22, 2018. This appeal 

followed. 

 

1 The Supreme Court of the United States called these factors “general guidelines” that had 

emerged over the years from several cases that addressed “the relationship between 

suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be 

avoided is ‘a very substantial likelihood of irreparable misidentification.’” Neil v. Biggers, 409 

U.S. 188, 198, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401 (1972) (quoting Simmons v. United States, 

390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968)). 

2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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STANDARD OF REVIEW

The Supreme Court of Kentucky described the standard of review of 

denials of suppression motions related to eyewitness identification evidence as 

follows:

[T]he trial court has a two-fold task. First, it must 

determine whether the photo array (or other identification 

procedure employed by police) was unduly suggestive, 

and if so (but only if so) it must then determine whether 

the identification was nevertheless sufficiently reliable in 

view of the totality of the circumstances. As with other 

suppression rulings, we review the trial court’s findings of 

historical fact, if any, for clear error, but its ultimate 

application of the constitutional standards is a question of 

law which we review de novo.

Jacobsen v. Commonwealth, 376 S.W.3d 600, 606 (Ky. 2012) (citations omitted).

ANALYSIS

Clark argues the identification was tainted due to improper police 

conduct and the trial court improperly applied the Biggers factors to the pre-trial 

identification. We disagree. 

In Biggers, supra, the United States Supreme Court established a twopart test for determining if there is a due process violation, which the Supreme 

Court of Kentucky summarized in Wilson v. Commonwealth, 695 S.W.2d 854 (Ky. 

1985). First, “[w]hen examining a pre-trial confrontation, this court must first 

determine whether the confrontation procedures employed by the police were 

‘suggestive.’” Id. at 857. Second, if the court determines that those procedures 
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were suggestive, “we must then assess the possibility that the witness would make 

an irreparable misidentification, based upon the totality [of] the circumstances and 

in light of the five factors enumerated in Biggers[.]” Id.

Implicit in Wilson’s first part – suggestiveness – is whether the 

government had a hand in arranging the confrontation with the suspect or his 

likeness. Id. There is no “real danger to the defendant in such situations where the 

Commonwealth has not arranged the confrontation and there is no attempt by its 

agents to indicate to the witness(es) that ‘that’s the man.’” Id. Therefore, to

establish the pre-trial confrontation was unduly suggestive, the defendant must 

show the government’s agents arranged the confrontation or took some action that 

singled out the defendant. Id. Clark failed to make such a showing.

Clark’s evidence in support of the suggestiveness element focuses on 

two facts: (1) Richardson saw only one photograph; and (2) Officer McGaha 

allowed him to make his own copy of the photograph. Regarding the first fact, 

Clark offers nothing to support an assertion that Richardson’s notice of the single 

photograph was not inadvertent and that Officer McGaha “had a hand” in 

arranging or suggesting a misidentification. Officer McGaha testified that he did 

not see Richardson approach and was caught off guard. (Video Record at 

01:59:14-17.) It was not his intention for Richardson to view the photograph and 

he did not direct his attention to it. (Id.)
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Allowing Richardson to have a copy of the photograph would only be 

problematic if it was given to him after the original identification had been 

suggested by the police. Subsequent identifications, like the initial one, would then 

be vulnerable to attack as a continuation of the original suggestion of 

misidentification, a misidentification reinforced by giving him a copy of the 

photograph. That series of events never occurred. The focus in this case is on

Richardson’s original identification and whether it was suggested by the 

government. What subsequently happened is not relevant here.

Because the focus is on “the relationship between suggestiveness and 

misidentification[,]” Biggers, 409 U.S. at 198, 93 S. Ct. at 381, there must be 

evidence of suggestiveness. Such evidence is lacking. Only “[i]f we conclude that 

[the identification procedures] were suggestive” must we “then assess the 

possibility that the witness would make an irreparable misidentification, based 

upon the totality to the circumstances and in light of the five factors enumerated in 

Biggers[.]” Wilson, 695 S.W.2d at 857. Officer McGaha did nothing to arrange 

Richardson’s confrontation with the photograph of Clark. Although he pulled up 

the photograph, he did not approach Richardson, nor was he aware Richardson was 

approaching him.

Because there were no suggestive identification procedures here, such

as there was in Wilson, no analysis of the totality of the circumstances was 
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necessary. However, if we examined this record to “assess the possibility [of] . . . 

an irreparable misidentification,” id., we would conclude there is not much 

possibility at all. 

Consider the five Biggers factors set out by the Supreme Court of the 

United States, as follows: 

[T]he factors to be considered in evaluating the likelihood 

of misidentification include [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, 

and [5] the length of time between the crime and the 

confrontation.

409 U.S. at 199-200, 93 S. Ct. at 382 (bracketed numerals added). 

Richardson’s opportunity to view the criminal was good. Although 

the struggle occurred just before sunrise, it lasted several minutes, long enough for 

Richardson to grab the criminal from behind, and to move around him until they 

were face-to-face. 

There is nothing to suggest Richardson’s degree of attention was 

limited in any way. It was the start of Richardson’s day. He was alert to the 

shouts of his neighbor and came to his rescue.

Richardson’s description of Clark, before seeing his photograph, was 

reasonably accurate. He described him as shorter than 5 feet 8 inches tall with 

blondish-brown hair. Clark is 5 feet 3 inches tall with brown hair. 
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When Richardson inadvertently saw Clark’s photograph, he 

immediately identified the person in the photograph as the person with whom he 

had struggled in the driveway. He expressed certainty in his identification.

Finally, only a few hours had elapsed between the crime and the 

moment Richardson saw Clark’s photograph. Richardson’s memory of the events 

and of the criminal’s appearance was fresh.

In sum, the record does not support the conclusion that police

procedures suggested the identification of Clark as the criminal Richardson 

confronted. However, even if we presume the contrary, “under the ‘totality of the 

circumstances’ the identification was reliable even though the confrontation 

procedure was suggestive.” Id., 409 U.S. at 199, 93 S. Ct. at 382.

CONCLUSION

For the foregoing reasons, we affirm the Jefferson Circuit Court’s

order denying suppression of Richardson’s pre-trial identification. 

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Rob Eggert

Tricia Lister

Louisville, Kentucky

BRIEF FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky

Kristin L. Condor

Assistant Attorney General

Frankfort, Kentucky