Gunning v. State

RAKER and WILNER, Judges,

concurring and dissenting.

We concur in the judgment of the Court reversing the conviction of Gunning but dissent from the judgment reversing the conviction of Harris.

We agree that, in concluding that the eyewitness identification instruction requested by the defendants was legally inappropriate and ought never to be given, the trial court committed an error of law. As the majority opinion makes clear, such an instruction is not generally inappropriate. When criminal agency is in dispute and the State seeks to establish that agency, in whole or in part, with eyewitness…