dissenting.
I dissent. This is not a plain error case as to the admission of Rector’s and Crumley’s identifications. The defendant raised the issue in his motion for new trial. In that motion the defendant asserted the trial court erred in not sustaining the motion to suppress as to witnesses Rector and Crum-ley and squarely presented in the following language the issue of improper identification procedures.
[Bjecause the extrajudicial lineup held on December 1, 1981, which resulted in the identification of Defendant, was so impermissibly suggestive as to give rise to the very substantial likelihood of irreparable misidentification of the Defendant as being the person who perpetrated the crime against Edith Crumley. Further, said impermissibly suggestive lineup pro-ceedure [sic] employed by the members of the Lafayette County Sheriff’s Office and the Lexington Missouri Police Department, violated Defendant’s right to due process quaranteed [sic] by the Fourteenth Amendment of the Constitution of the United States and by Article I, Section 10 of the Missouri Constitution.
The state insists that defendant waived the error by failing to object to Rector’s testimony and renewing the motion when he testified. The defendant’s counsel did not object when the witness first testified. Defense counsel in a colloquy with the court asked the court to recognize the continuation of his objection based on the motion. The court by its responses indicated that the grounds for the objection were understood and that the matter was preserved. *801The state argues in the brief that the objection was waived by failure to object. The state cites cases not precisely in point but referring to the contemporaneous objection rule. The seminal case discussing that rule is State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974).
In Yowell, the court reaffirmed the necessity for a contemporaneous objection to preserve error in overruling a motion to suppress evidence. The court set forth the rationale for the rule as follows:
It has been suggested that none of the cases have stated any reason for the requirement that an objection be made to the introduction of the evidence at trial. The defendant’s brief was written before our recent decision in State v. Bryson, supra [506 S.W.2d 358 (Mo.1974)]. Therein it is stated that ‘This case demonstrates the soundness of the rule enunciated in State v. Simone, supra [416 S.W.2d 96 (Mo.1967)]. Here the motion to suppress was heard and decided by a circuit judge who did not preside over the trial. The judge presiding over the trial would not necessarily know what transpired at the hearing on the motion to suppress nor would he know with any degree of particularity what items of evidence were the subject of the motion. The hearing of pretrial motions by a judge who does not preside at the trial itself occurs frequently in multiple-judge circuits and also occurs when a motion for change of judge is filed and granted in other circuits after the motion to suppress has been heard and decided. Additionally, trial strategy can account for not objecting to some items of evidence at the trial. In any event, the judge presiding at the trial must at least be informed of a party’s objection to evidence at trial before an alleged error stemming from the admission of the same can be considered on appeal. To hold otherwise would be to allow a party to sit idly by while evidence was admitted, take his chances with a jury, and then if he loses to bring up a matter for the first time on appeal that had never been presented to the trial judge. This is simply not conducive to an orderly system of justice and is not acceptable.’ 506 S.W.2d 361. In addition to what was said in Bryson we suggest that it is entirely possible that after hearing the evidence on motion to suppress the defendant’s attorney may become convinced that his motion was without merit. The required objection will therefore serve to advise the court as to whether the defendant continues to consider the evidence inadmissible. Also, even if the judge that heard the motion is presiding at the trial, upon objection to the evidence he may desire to reconsider his prior ruling. We think the foregoing demonstrates sound reasons for the requirement.
513 S.W.2d at 402-03.
None of the reasons for the rule have any application in this case. Counsel and the court were aware of the defendant’s claim. No different judge was involved. There was no issue of trial strategy at the time the evidence came in. In such circumstances the rule should not be applied to defeat a legitimate claim of error.
As to the complaining witness, the record shows a clear and timely objection to her identification testimony and as to that testimony there can be no doubt that the claim of error is preserved.
The testimony challenged is of the only two witnesses who testified, the victim and Rector. The inquiry focuses first on Rector. This young man was an eyewitness to the crime. He and his companions were driving along and saw the victim struggling with her assailant. The car was stopped. Rector and one of his two companions pursued the assailant. The assailant fired his gun and the pursuit understandably ceased. The pursuit and the shot occurred in a space of no more than twenty seconds. Rector said that the area where the offense occurred was lighted but that the pursuit was in a dark area. Rector said his closest view was 15 yards. There is nothing to indicate the distances involved except that the chase was for about 15 yards. The description given by Rector was of a black man in the early 20’s weighing 160-168 pounds with a green hunting jacket without sleeves and *802wearing a stocking cap. The witness was unable to give a facial description at the time of the offense. The offense occurred November 21st at 7:45 p.m. On December 1st a lineup was held at the jail in Lafayette County. Rector knew two of the four persons in the lineup. The third individual had a heavy head of hair — an “Afro” — and, according to the witness Rector, could therefore not be the assailant. Rector knew a suspect was in custody and he selected the fourth person, the only one not either known by him or eliminated by a distinguishing characteristic. Before the preliminary hearing, Rector knew the defendant had been convicted of second degree murder and had “failed” a lie detector test. That information as to the lie detector was given to him by the Prosecuting Attorney and as to the conviction may have been given to him earlier by an officer. Rector again identified the defendant at the preliminary as the assailant by pointing out the defendant seated at the counsel table. The same identification was made at trial. In all three identifications, the witness said that the defendant “looked exactly like the man who did it.” At trial Rector conceded that he could be no more positive than the “looked exactly like” characterization, although in response to the prodding by the prosecutor he finally said, “This is the man I saw.”
The proceedings at the lineup and the information given to Rector as to the defendant’s record and purported failure of the lie detector test were highly suggestive. Rector knew a suspect was in custody and the defendant was the only person that he could possibly identify as the assailant. His two companions were even more likely to have picked out the defendant since they knew all of the persons in the lineup except the defendant. The photograph of the lineup indicates that there is no similarity of build and age between the defendant and the others. The defendant is the only person in the lineup even close to the physical description of the assailant. The three eyewitnesses viewed the lineup together, and each proclaimed aloud the choice of the defendant. The circumstances were mutually reinforcing to all of them in the identification procedures, particularly since Rector’s two companions knew all the men in the lineup except the defendant. Immediately after the lineup Rector and his companions were informed that they had picked the “right one” because he had a record for second degree murder. Later all of them learned that the defendant had “failed” a lie detector test. These suggestive matters were reiterated by the prosecuting attorney just before the preliminary hearing.
There is no need to reiterate in detail all of the case law relating to this issue. The question is one of Federal constitutional law. The test to determine if the due process right of the defendant is offended is set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The court set forth the test at 114 as follows:
We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U.S., at 199-200, 93 S.Ct., at 382. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation. Against these factors, is to be weighed the corrupting effect of the suggestive identification itself.
(Emphasis added.)
Thus, the test requires the weighing of the factors influencing reliability against the suggestiveness of the lineup or other police procedures. The “linchpin” language of the test has been repeated, without reference to the necessary balancing, in cases where the indicia of reliability were strong and the elements of suggestiveness were slight.
This case contains a very strong element of suggestiveness: first, there was a great dissimilarity in the build of the participants; second, Rector knew two of them and would have recognized them at the crime scene; and third, Rector himself said that the remaining participant could not *803have been the assailant, leaving only the defendant to choose. In addition, the initial view by Rector lasted 15 seconds at a distance of 15 to 30 yards, occurred at night, with part of it from the back seat of a moving vehicle, and part of it during a chase to a darker part of the street. The time factor of only two weeks favors the lineup identification, but the accuracy of the description was weak except as to age and size. The level of certainty at confrontation was fairly strong but does not carry much persuasion in the light of the composition of the lineup. If only the lineup were suggestive, the case might be close. The reliability of the in-court identification is further undermined by the suggestion implicit in the officers informing the witness as to the defendant’s prior record and “failure” to pass a lie detector test. Those factors added to the suggestiveness of the lineup compel the conclusion that the lineup and its sequelae created a substantial likelihood of irreparable misidentification in the in-court identifications.
I believe that even if this case were viewed as a plain error case, the result would be the same. The rule is without doubt that the erroneous admission of evidence is seldom harmless. State v. Wright, 582 S.W.2d 275 (Mo. banc 1979). In this case, where the only other identification testimony is inadmissible or at the very least highly suspect, manifest injustice occurs when evidence of both in-court and out-of-court identifications is permitted in the light of the suggestiveness present in this case. To permit what seems to be a substantial likelihood that irreparable mis-identification caused by the suggestion in the procedures utilized to ripen into firm identification is a denial of due process.
The question as to the initial balancing of suggestiveness versus reliability of the victim’s testimony is only slightly different. Her opportunity to observe may have been better. She stated that she viewed the defendant for 2-3 minutes. However, she retreated from this slightly when pressed. In any event she testified that she observed the defendant only when he approached her from a distance she estimated as 15 yards. She is 69 years old and was no doubt terrified at the sudden attack on the street at night. She said in the initial interview with the police that she could not identify her assailant. She was unable to give a physical description and in fact gave as the only physical characteristic a “light skin Negro,” which does not accurately describe the defendant. She viewed the lineup twice. Her identification language was, “That’s him or it looks like him.” At the suppression hearing, she said two of the participants were older and heavier and did not look anything like her assailant and that the other participant besides the defendant did not look anything like her assailant because he was so small. This testimony is consistent with the photograph of the lineup, which displayed the characteristics she described. She, too, was aware of the suggestive factors involving the defendant’s record and supposed failure of the lie detector test.
As to this witness, the only issue is error since the claim is preserved. I am convinced that the lineup was suggestive, that suggestion was reinforced, and that the in-dicia of reliability are not strong enough to convince that a substantial likelihood of irreparable misidentification did not occur.
I would reverse the conviction.