From the foregoing it is evident that the case at bar does not resemble prior situations where we have exercised our discretionary power of reversal. See, Garcia v. State, 73 Wis.2d 651, 245 N.W.2d 654 (1976); Logan v. State, 43 Wis.2d 128, 168 N.W.2d 171 (1969); Pate v. State, 61 Wis.2d 25, 211 N.W.2d 495 (1973). III. DID THE DISTRICT ATTORNEY VIOLATE HIS OBLIGATION TO DISCLOSE EXCULPATORY EVIDENCE TO THE DEFENSE?
We believe this case to be such an exception. Pate v. State (1973), 61 Wis.2d 25, 211 N.W.2d 495. The administration of justice is and should be a search for the truth.
In order to grant a new trial in the interest of justice under sec. 251.09, Stats., this court must be convinced, viewing the record as a whole, that there has been a probable miscarriage of justice or that a new trial would lead to a different result. Rohl v. State (1974), 64 Wis.2d 443, 219 N.W.2d 385; Pate v. State (1973), 61 Wis.2d 25, 211 N.W.2d 495. A complete review of the record in this case fails to disclose a basis for believing that justice has miscarried or that a new trial would lead to a different result.
". . . the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."Id. at pages 199, 200. Wisconsin cases citing Biggers with approval: Jones v. State (1974), 63 Wis.2d 97, 108, 216 N.W.2d 224; Pate v. State (1973), 61 Wis.2d 25, 30, 211 N.W.2d 495 State v. Russell (1973), 60 Wis.2d 712, 721, 211 N.W.2d 637. Was there unnecessary suggestiveness connected with the photographic identification? Fells urges two instances of suggestiveness: (1) Fells' picture was the only one depicting anyone to be 5'11 1/2" to 6' 1" tall, and Mrs. Knowlton had previously told police she believed her attacker was about 6' in height; and (2) when Detective Toepfer handed the seven photographs to Mrs. Knowlton he said, "I believe the person would be in it."
"As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." See also United States ex rel. Phipps v. Follette (2d Cir. 1970), 428 F.2d 912; Sobel, Eye-Witness Identification (1972), pp. 64, 69, sec. 37. The Biggers pronouncement has been accepted in Pate v. State (1973), 61 Wis.2d 25, 30, and State v. Russell (1973), 60 Wis.2d 712, 721, 211 N.W.2d 637. We think the trial court committed no error in allowing the out-of-court identification in evidence and it follows that the in-court identification was likewise properly admitted.