State v. Baldonado

OPINION

WOOD, Judge.

Defendant appeals his conviction of rape and aggravated assault. Sections 40A-9-2 and 40A-3-2, N.M.S.A.1953 (Repl.Vol. 6). The issue involves the victim’s out-of-court identification of defendant from a photograph. The claim is that this extra-judicial identification was unnecessarily suggestive and conducive to irreparable mistaken identification. See State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970).

During the rape, which occurred in the victim’s home at night, the victim removed a wallet from a back pocket of the pants of the rapist. When police arrived to…