NEELY, Justice:
A jury convicted Larry Eldon James of kidnapping, first-degree sexual abuse, and first-degree sexual assault. Mr. Smith now appeals, alleging that the State failed to disclose exculpatory information and that the State used evidence that was the fruit of a tainted photographic identification of Mr. James. We affirm.
I.
On 24 May 1989, Pamela R.
was abducted by two men outside her home. The two men drove her to a secluded area and raped her. Afterwards, the two men discussed killing Ms. R., but one of the men convinced the other that they should take her home instead. After an investigation, the State charged Larry James and Joel Dustin with kidnapping, sexual abuse and sexual assault. Mr. Dustin arranged a plea bargain with the State under which he agreed to testify against Mr. James in exchange for no recommendation of sentence by the prosecutor in his case.
Mr. Dustin testified that he and Mr. James were the men who kidnapped and raped Ms. R. He further testified that he had convinced Mr. James not to kill Ms. R. and instead to take her home. Ms. R. corroborated this testimony. During the course of his examination in the appellant’s trial, Mr. Dustin also testified about his record as a member of the United States Navy, but did not mention that he was AWOL
at the time of the kidnapping and rape. Mr. Dustin testified that the State did not promise him probation in exchange for his testimony.
Ms. R. testified about the details of her kidnapping and rape, and she identified Mr. James in court as one of her assailants. Previously Ms. R. had testified at a suppression hearing that she first picked Mr. James’ picture from a group of six or seven shown to her by police detectives.
II.
Mr. James claims that the State did not disclose exculpatory information as required under
Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and
State v. Hatfield,
169 W.Va. 191, 286 S.E.2d 402 (1982). Specifically, Mr. James claims that the State did not disclose to him an explicit agreement between the State and Mr. Dustin under which Mr. Dustin
would receive probation in exchange for his testimony. Mr. James also claims that the State should have informed him that Mr. Dustin was AWOL and that Mr. Dustin lied to the probation department about his military status.
The Fourteenth Amendment to the Constitution of the United States, as articulated in
Brady, supra,
and Article III, Section 14 of the Constitution of the State of West Virginia as articulated in
Hatfield, supra,
require the State to disclose all exculpatory information to the defendant upon request. We disagree, however, with Mr. James’ contention that the State was required to provide appellant with any information that might have been useful to
impeach
Mr. Dustin. As the U.S. Supreme Court stated in
United States v. Agurs,
427 U.S. 97, 112-13, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976):
It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. (Footnotes omitted.)
We stated in Syllabus Point 4 of
Hatfield, supra:
A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution.
Although the evidence of Mr. Dustin’s AWOL status and of his lies to the probation department could have been used to impeach Mr. Dustin’s character, that evidence, in this case, does not tend to exculpate Mr. James given the identification by the victim. As the U.S. Supreme Court held in
United States v. Bagley,
473 U.S. 667 at 676, 105 S.Ct. 3375 at 3380, 87 L.Ed.2d 481 (1985), impeachment evidence that might be used to show “bias or interest” also falls within the
Brady
rule, but being AWOL from the military or making false statements to probation officers does not demonstrate bias or interest.
Mr. James’ other
Brady
claim is more problematic. The prosecution must disclose any and all inducements given to its witnesses in exchange for their testimony. Such deals are crucial as impeachment evidence; in some cases the jury may decide that the deal has created an incentive for the witness to lie. Mr. James claims that the State made such a deal with Mr. Dustin and did not disclose it to him. Lacking direct evidence, Mr. James cites the unusual circumstances under which Mr. Dustin obtained his probation. First, the judge in Mr. Dustin’s case sentenced Mr. Dustin to 10 to 20 years. Approximately three weeks later, the judge, on his own motion, ordered Mr. Dustin to the Huttonsville Correction Center for “examination, diagnosis and classification.” Then, after Mr. Dustin testified against Mr. James, the judge suspended Mr. Dustin’s sentence.
Mr. James’ counsel is correct that this course of conduct appears unusual and suggests the
possibility
of a deal between the State and Mr. Dustin. However, this Court will not overturn the ruling of a lower court on the basis of innuendo and possibilities. We suggest that Mr. James may want to file a petition for habeas corpus in order to develop the factual record for this claim. Clear evidence of a deal directly linking leniency for Mr. Dustin with testimony tending to convict Mr. James that was not disclosed would be grounds for a new trial.
III.
Mr. James also claims that the trial judge should not have allowed Ms. R. to identify him in court. The trial judge held a suppression hearing and determined that Ms. R.’s identification of Mr. James was valid. At the suppression hearing, Ms. R. testified that she identified Mr. James from a group of six or seven photographs. Mr. James claims that before being shown this group of six or seven photographs, Ms. R. had been shown a single picture — one of Mr. James alone. Mr. James contends that this is the only reason Ms. R. was able to
identify him. Mr. James’ claim is based on the following colloquy with Ms. R. at a preliminary hearing:
Q. Were you able to identify, through that photo lineup, one or both of the individuals?
A. Just the white man.
Q. And were you positive that was him? A.
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NEELY, Justice:
A jury convicted Larry Eldon James of kidnapping, first-degree sexual abuse, and first-degree sexual assault. Mr. Smith now appeals, alleging that the State failed to disclose exculpatory information and that the State used evidence that was the fruit of a tainted photographic identification of Mr. James. We affirm.
I.
On 24 May 1989, Pamela R.
was abducted by two men outside her home. The two men drove her to a secluded area and raped her. Afterwards, the two men discussed killing Ms. R., but one of the men convinced the other that they should take her home instead. After an investigation, the State charged Larry James and Joel Dustin with kidnapping, sexual abuse and sexual assault. Mr. Dustin arranged a plea bargain with the State under which he agreed to testify against Mr. James in exchange for no recommendation of sentence by the prosecutor in his case.
Mr. Dustin testified that he and Mr. James were the men who kidnapped and raped Ms. R. He further testified that he had convinced Mr. James not to kill Ms. R. and instead to take her home. Ms. R. corroborated this testimony. During the course of his examination in the appellant’s trial, Mr. Dustin also testified about his record as a member of the United States Navy, but did not mention that he was AWOL
at the time of the kidnapping and rape. Mr. Dustin testified that the State did not promise him probation in exchange for his testimony.
Ms. R. testified about the details of her kidnapping and rape, and she identified Mr. James in court as one of her assailants. Previously Ms. R. had testified at a suppression hearing that she first picked Mr. James’ picture from a group of six or seven shown to her by police detectives.
II.
Mr. James claims that the State did not disclose exculpatory information as required under
Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and
State v. Hatfield,
169 W.Va. 191, 286 S.E.2d 402 (1982). Specifically, Mr. James claims that the State did not disclose to him an explicit agreement between the State and Mr. Dustin under which Mr. Dustin
would receive probation in exchange for his testimony. Mr. James also claims that the State should have informed him that Mr. Dustin was AWOL and that Mr. Dustin lied to the probation department about his military status.
The Fourteenth Amendment to the Constitution of the United States, as articulated in
Brady, supra,
and Article III, Section 14 of the Constitution of the State of West Virginia as articulated in
Hatfield, supra,
require the State to disclose all exculpatory information to the defendant upon request. We disagree, however, with Mr. James’ contention that the State was required to provide appellant with any information that might have been useful to
impeach
Mr. Dustin. As the U.S. Supreme Court stated in
United States v. Agurs,
427 U.S. 97, 112-13, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976):
It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. (Footnotes omitted.)
We stated in Syllabus Point 4 of
Hatfield, supra:
A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution.
Although the evidence of Mr. Dustin’s AWOL status and of his lies to the probation department could have been used to impeach Mr. Dustin’s character, that evidence, in this case, does not tend to exculpate Mr. James given the identification by the victim. As the U.S. Supreme Court held in
United States v. Bagley,
473 U.S. 667 at 676, 105 S.Ct. 3375 at 3380, 87 L.Ed.2d 481 (1985), impeachment evidence that might be used to show “bias or interest” also falls within the
Brady
rule, but being AWOL from the military or making false statements to probation officers does not demonstrate bias or interest.
Mr. James’ other
Brady
claim is more problematic. The prosecution must disclose any and all inducements given to its witnesses in exchange for their testimony. Such deals are crucial as impeachment evidence; in some cases the jury may decide that the deal has created an incentive for the witness to lie. Mr. James claims that the State made such a deal with Mr. Dustin and did not disclose it to him. Lacking direct evidence, Mr. James cites the unusual circumstances under which Mr. Dustin obtained his probation. First, the judge in Mr. Dustin’s case sentenced Mr. Dustin to 10 to 20 years. Approximately three weeks later, the judge, on his own motion, ordered Mr. Dustin to the Huttonsville Correction Center for “examination, diagnosis and classification.” Then, after Mr. Dustin testified against Mr. James, the judge suspended Mr. Dustin’s sentence.
Mr. James’ counsel is correct that this course of conduct appears unusual and suggests the
possibility
of a deal between the State and Mr. Dustin. However, this Court will not overturn the ruling of a lower court on the basis of innuendo and possibilities. We suggest that Mr. James may want to file a petition for habeas corpus in order to develop the factual record for this claim. Clear evidence of a deal directly linking leniency for Mr. Dustin with testimony tending to convict Mr. James that was not disclosed would be grounds for a new trial.
III.
Mr. James also claims that the trial judge should not have allowed Ms. R. to identify him in court. The trial judge held a suppression hearing and determined that Ms. R.’s identification of Mr. James was valid. At the suppression hearing, Ms. R. testified that she identified Mr. James from a group of six or seven photographs. Mr. James claims that before being shown this group of six or seven photographs, Ms. R. had been shown a single picture — one of Mr. James alone. Mr. James contends that this is the only reason Ms. R. was able to
identify him. Mr. James’ claim is based on the following colloquy with Ms. R. at a preliminary hearing:
Q. Were you able to identify, through that photo lineup, one or both of the individuals?
A. Just the white man.
Q. And were you positive that was him? A. Positive.
Q. And what made you positive?
A. Well, I remembered him from the photo. I remembered him.
Ms. R. removed any confusion about her identification of Mr. James when she testified at trial. She testified that she got a good look at Mr. James during the ride in the car as well as during the prolonged assault. She provided an accurate description of Mr. James later that day and she positively identified him from the group of photographs four days later. Furthermore, Ms. R. denied at trial that she had ever been shown a single picture of Mr. James.
We have previously held that:
A pretrial identification by photograph will be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tification.
Syllabus Point 4,
State v. Harless,
168 W.Va. 707, 285 S.E.2d 461 (1981).
Clearly an “array” of one photograph is impermissibly suggestive. However, Mr. James again provides no direct evidence that Ms. R. ever saw a lone photograph. In fact, Ms. R. denied that this occurred. Single photograph identifications raise grave concern about the reliability of the witness’s identification, and this Court will not accept them. However, there is no evidence in this case on which to base a reversal of the trial court’s decision.
IV.
For the foregoing reasons, the decision of the Circuit Court of Kanawha County is affirmed.
Affirmed.