A judge said Monday she is unlikely to dismiss an indictment against a Miami police officer accused of lying about seeing a suicidal man holding a gun just before fatally shooting him.

Suspended Officer Alejandro Macias was among three officers cleared last month of charges alleging that 11 Miami officers planted guns or covered up the planting of guns after four other police shootings from 1995 to 1997.

In an indictment last year, Macias was accused of lying about seeing a gun before shooting Jesse Runnels twice in the cheek as the man stood by his kitchen sink March 23, 1999. A toy gun was found outside the kitchen window, and a bloody cellular phone was in the sink.

Defense attorney William Matthewman claimed prosecutors were trying to railroad Macias by switching the order of crime-scene photographs of the toy gun during their grand jury presentation.

TWO PHOTOS

In front of the grand jury, Assistant U.S. Attorney Allan Kaiser offered a picture without the gun as initial work and indicated a second picture with the gun was taken 20 to 30 minutes later.

''I'm concerned, Mr. Matthewman, that there's just not a legal basis to dismiss the indictment,'' U.S. District Judge Patricia Seitz said. ``These are all problems with the government's case.''

The judge gave the defense more time to file papers to support dismissal.

At a minimum, the dispute over the timing of the pictures shows prosecutors would have trouble proving their case in a trial relying on the photographic evidence. The judge noted that witnesses support the prosecution's version of events.

A defense expert already has reassembled 108 strips of negatives bearing three frames each and concluded that the initial shots show the gun but that a later one does not.

The Police Department has bought new cameras to add time stamps to frames to eliminate basic evidence questions such as this.

Prosecutor Curtis Miner also acknowledged that some negatives taken at the scene are missing and no one knows when they were disappeared. Prosecutors received negative jackets with no negatives inside.

''The last step in the chain is that they were turned over to the FBI or us and at that time they were already missing,'' Miner said.

`RECKLESSNESS'

Matthewman accused Kaiser of prosecutorial misconduct in court papers but seemed to back off in court.

''I think it rose to the level of recklessness,'' Matthewman said. ``I'm not saying that they went back there and knowingly switched these photos.''

Macias told investigators that Runnels stuck his head and right hand out the kitchen window while holding a black semiautomatic handgun.

Macias, who was in Runnels' backyard, said he radioed another officer to say ''something about a gun'' before firing three shots from his MP-5 machine gun.

He is charged with two counts of obstruction of justice on the basis of his statement to investigators the day after the shooting. If convicted, he could face 10 years in federal prison.

Trial was set for Nov. 17 or Feb. 23, depending on the retrial date of four officers in the larger police corruption case.

The city has settled a wrongful-death suit by Runnels' relatives for $1.25 million.