The opinion
Concurring.
DeBruler, C. J.
I concur fully in the opinion of the majority wherein they ignore the procedural defects in the appellant’s motion for a new trial and supporting memorandum, and do not base their decision on those procedural defects. I would prefer that this Court remand this case to the trial court for his consideration of those issues not properly presented in the motion for new trial. See my dissenting opinion in Graham v. State (1969), 252 Ind. 367 , 249 N. E. 2d 25 . I further concur in this decision of the majority wherein the standards set forth in United States v. Wade (1967), 388 U. S. 218 , 18 L. Ed. 2d 1149 , 87 S. Ct. 1926 , are held not to apply to pre-trial identifications occurring prior to the opinion in the Wade case on June 12, 1967. This decision not to apply the Wade rule should dispose of the pre-trial identification issue raised by appellant.
The majority’s discussion of the application of the Wade rule to the facts in this case constitutes, in my opinion, pure dicta and an erroneous interpretation of that rule. It is clear to me that the Wade case is not restricted to ordin *463 ary police lineups. A proper interpretation of the. following language in the Wade case would render any testimony concerning the pre-trial identification of the appellant inadmissible:
“In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” 18 L. Ed. 2d at 1157 .
“But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” 18 L. Ed. 2d at 1158 .
“The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an ‘identification parade’ or ‘showup,’ as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, 388 U. S. 293 , 18 L. Ed. 2d 1199 , 87 S. Ct. 1967 , supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.” 18 L. Ed. 2d at 1159.
“. . . And the vice of suggestion created by the identification in Stovall, supra, was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police.” 18 L. Ed. 2d at 1161.
The dissent stated:
“The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information.” 18 L. Ed. 2d at 1171.
*464 It is equally clear that the test for admissibility of testimony concerning pre-trial identification of an accused used in Stovall v. Denno, supra, was the pre-Wade test. The Supreme Court explicitly held that the Wade rule would not be applied there because the rule was not to be given retroactive application. Therefore, the test in Stovall cannot be used to interpret and limit the application of the Wade rule.
Note.—Reported in 250 N. E. 2d 358 .