2006-872, STATE OF NH v. MICHAEL SPINALE

Kelly A. Ayotte

No. 2006-872

Rockingham

Henry F. Spaloss

fireworks show scheduled to begin at 9:30 p.m. in a beach area approximately DUGGAN, J. The State appeals the order of the Superior Court (Coffey Happy Hampton Arcade in Hampton. The parking lot was busy due to a James was working as an attendant at the Simco Parking Lot outside the The following facts were adduced at trial. On July 21, 2004, Kevin

a reasonable doubt. We reverse and remand. concluded that no rational juror could have found the defendant guilty beyond on one charge of robbery. See RSA 606:10, III (2001). The trial court J.) setting aside the jury’s guilty verdict against the defendant, Michael Spinale,

THE SUPREME COURT OF NEW HAMPSHIRE , of Nashua, on the brief and orally, for the defendant.

general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Tuttle’s report, as a white male, five feet eight to five feet nine inches in height, Daniels, the man standing to the side and listed as “Suspect #2” in Officer Officer Tuttle that he did not “see any facial hair at the time.” James described a black shirt and possibly jeans, and the driver of the Blazer. He also informed twenty to twenty-five years of age, 180 to 210 pounds, with dark hair, wearing “Suspect #1,” as a white male, five feet five to five feet six inches in height, James described the defendant, whom Officer Tuttle listed in his report as James and Hume described the three individuals to Officer Tuttle.

James and Hume observed Officer Tuttle patrolling the lot. fees had attempted to rob him. Before they could call the police, however, him that the same three men who had given him a hard time about the parking James radioed Hume immediately. Hume arrived and James informed

and its license plate number, 90AX02, on a ticket stub. As the vehicle passed James, he wrote down the type of vehicle, Chevy Blazer, watched the defendant and Daniels run back to their vehicle and drive away. and Daniels turned to look behind them, James ran behind the booth and them. He told the defendant that the police were coming. When the defendant seconds, realized he was serious. James then noticed a vehicle driving towards Initially, James thought that the defendant was joking, but after a couple out a knife, pressed it against James’ neck, and demanded all of his money. defendant waited while James finished with another customer, and then pulled identified by James as the defendant, continued to approach him. The Daniels, stood five or six feet to the side of James, while the third man, later James and walked towards their car. A second man, later identified as Corey observed the same three men walking towards him. One of the men passed At approximately 10:44 p.m., after the fireworks had finished, James

problems. James that he would call the police if the men returned to cause additional thereafter, but did not see the men. After Officer Tuttle left, Hume informed Hampton Police Department, who was on motorcycle patrol, arrived shortly men as they were walking towards the beach. Officer James Tuttle of the Hume arrived, James informed him of what had occurred and pointed to the parking spot. James radioed Hume and asked him to come outside. When James “a hard time” about the high parking fees and the location of their Shortly before 9:00 p.m., three men pulled into the parking lot and gave

to direct traffic and collect money from James. remained inside the arcade for most of the night, but occasionally went outside ticket stubs in the pockets of an apron. James’ supervisor, Jake Hume, fees and provide tickets to drivers entering the lot. James held the money and lot provided lighting to James while he stood or sat outside it to collect parking 100 yards from the rear of the lot. A booth located at the front of the parking had made a prima p. 3 committed the robbery. The trial court denied the motion, ruling that the State support a finding beyond a reasonable doubt that the defendant had among other things, that the identification evidence had been insufficient to pounds. After the State rested, the defendant moved to dismiss, arguing, approximately five feet seven inches or five feet eight inches in height, and 180

current height and weight, James testified that the defendant was percent” certainty. When asked by defense counsel to estimate the defendant’s During trial, James identified the defendant as the robber with “100

night in the parking lot.” Thereafter, the defendant was charged with robbery. photograph and wrote: “This looks like the kid who held the knife to me the knew the defendant on the array. Accordingly, James circled the defendant’s him. Detective Charleston asked James to sign, date, and indicate how he array, he was “100 percent sure” that the defendant was the man who robbed person who tried to rob him. James testified that, “as soon as [he] saw” the immediately” and with “no contemplation,” identified the defendant as the James. James recognized none of the photographs on page one, but, “almost On August 26, 2004, Detective Charleston showed the two-page array to

robbery. photograph was included even though, at the time, he was not a suspect in the identification was for the jury to decide. while a photograph of Daniels, “Suspect #2,” was placed on page one. Daniels’ facie case on identification, and that the issue of defendant. The defendant’s photograph was placed on page two of the array, array containing photographs of fifteen other men similar in appearance to the this photograph, Detective Charleston assembled a two-page photographic taken on June 6, 2004, and depicted the defendant as having a goatee. Using “somewhat fit.” She then located a photograph of the defendant, which was “Suspect #1” in Officer Tuttle’s report, and concluded that the descriptions of the defendant from his driver’s license, compared it to the description of of the Hampton Police Department subsequently obtained a general description with Massachusetts license plate number 90AX02. Detective Lynne Charleston The police later identified the defendant as the owner of a Chevy Blazer

blue Iverson tank top with the number three on it. white shirt and having a goatee, and “Suspect #3” as being tall and wearing a earlier confrontation, described “Suspect #2” to Officer Tuttle as wearing a see the alleged robbery but had observed the individuals walking away from the blue Iverson basketball jersey with the number three on it. Hume, who did not feet eight to five feet nine inches in height, in his early twenties, and wearing a vehicle, listed as “Suspect #3” in Officer Tuttle’s report, as a white male, five shirt and jeans. He described the man who had immediately walked to the in his early twenties, with a stocky build and dark hair, and wearing a white that he was the attacker. On cross-examination, Mr.

p. 4 [the defendant]’s actual physical attributes to conclude

description available – simply varies too greatly from

night of his attack – presumably the most reliable The description Mr. James gave to Officer Tuttle on the

trial court stated: beyond a reasonable doubt on the evidence presented at trial.” Specifically, the concluded that “no rational juror could have found [the defendant] guilty that it “agree[d] with the defendant’s sufficiency of the evidence argument”; and the court cited the legal standard concerning sufficiency of evidence; indicated The trial court set aside the verdict and granted a new trial. In so doing,

and order a new trial. and enter a judgment of acquittal, or find that the jury made a plain mistake perpetrator.” He asked the trial court to either rule the evidence insufficient “insufficient evidence to find beyond a reasonable doubt that [he] was the overwhelming contradiction in” James’ testimony such that there was At a subsequent hearing, the defendant contended that there was “an therefore, the verdict should be set aside and a judgment of acquittal entered. “manifestly” mistaken as to James’ identification of the defendant, and, for judgment notwithstanding the verdict (JNOV). He argued that the jury was The jury returned a verdict of guilty. The defendant later filed a motion

number 90AX02. admitted that he owns a black Chevy Blazer with Massachusetts license plate incident, he weighed approximately 230 to 240 pounds. The defendant grew it approximately eight years before. He also stated that, at the time of the height, approximately 250 pounds, and had never shaved his goatee since he currently twenty-one years of age, six feet two-and-one-quarter inches in a knife or confronted an attendant. The defendant testified that he was left after the fireworks, and denied that either he or any of his companions had attendant. He denied meeting a parking attendant in the parking lot when he parked in the Simco lot, but encountered no problems with the parking men when Elwell called and asked them to come to Hampton beach. He The defendant testified that he was at Canobie Lake with the other two

car, and did not see a parking lot attendant. testified that she waved at the men as they were getting into the defendant’s the last time she saw the defendant, he was “walking to his car.” Elwell Elwell walked towards their vehicle with the three men. Gagne testified that in the beach area before the fireworks began. After the fireworks, Gagne and Gagne and Elwell testified that they met the defendant and the other two men Gagne and Jen Elwell, who had been his friends for approximately six years. Thereafter, the defendant testified and presented two witnesses, Danielle support a conviction, see p. 5 acquittal, as is the normal practice where a court finds insufficient evidence to court did not explicitly grant the motion for JNOV and enter a judgment of was sufficient to support the conviction. The State notes that while the trial juror to find that the defendant was the perpetrator, and thus, the evidence sufficient direct and circumstantial evidence of identification for a rational identification evidence was insufficient. The State maintains that there was jury’s verdict and made credibility determinations in concluding that the resentencing. It contends that the trial court improperly second-guessed the The State urges us to reverse the trial court’s decision and remand for

new trial. acquittal[,]” and instead, set aside the defendant’s conviction and granted a Based upon these findings, the trial court “decline[d] to enter a judgment of

“Suspect #1,” the shorter attacker with no facial hair.

“Suspect #2,” the stocky, taller man standing behind

obvious conclusion is that [the defendant] was in fact

attack, which showed him wearing a goatee. The from Det[ective] Charleston’s array, taken before the

the weight of the evidence. It is unclear whether the trial court found the the defendant appears to have argued that the verdict was conclusively against however, by asking the trial court to set aside the verdict and grant a new trial, and enter a judgment of acquittal notwithstanding the verdict. At the hearing, court find that the identification evidence was insufficient, set aside the verdict, [the defendant]’s appearance at trial and the photo In his initial motion for JNOV, the defendant requested that the trial

was not overwhelmingly in favor of the defendant. On that theory, the State argues that the trial court erred because the evidence but, rather, found the jury’s verdict to be against the weight of the evidence. defendant a new trial, the court may not have found the evidence insufficient, oral argument, the State indicated that, because the trial court granted the these circumstances would violate the defendant’s double jeopardy rights. At the JNOV motion. Thus, the State emphasizes that a retrial of the defendant in finding the identification evidence insufficient, the trial court, in effect, granted Mr. James conceded that there was no difference in

doubt surrounding his later identifications. Further,

his explanation does little to eliminate the reasonable Tuttle to bad estimation skills. This may be so, but defendant’s actual height and his description to Officer James attempted to credit the difference between the standard, O’Neill

p. 6 Thus, on a motion for JNOV, where the trial court applies the sufficiency

Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Kierstead, 118 N.H. at 496. found the essential elements of the crime beyond a reasonable doubt.” review the record to determine whether “any rational trier of fact could have motion for JNOV, O’Neill, 134 N.H. at 185, and, on appeal, we objectively Therefore, the trial court has little discretion when deciding whether to grant a because of insufficient evidence is a question of law. O’Neill, 134 N.H. at 184. evidence, Tibbs, 457 U.S. at 45, the question of whether a JNOV is required the Due Process Clause prevents convictions based upon legally insufficient Realty, 145 N.H. 447, 448-49 (2000) (quotation and citation omitted). Because inferences may be drawn, the motion should be denied.” Slattery v. Norwood and if the evidence adduced at trial is conflicting, or if several reasonable court cannot weigh the evidence or inquire into the credibility of the witnesses, (quotation and citation omitted). In considering a motion for JNOV, “the [trial] most favorable to the State.” State v. Gordon, 147 N.H. 576, 579 (2002) considering all the evidence and all reasonable inferences therefrom in the light unless no rational trier of fact could find guilt beyond a reasonable doubt,

, 134 N.H. at 185, the trial court “uphold[s] the jury’s verdict

457 U.S. at 41-42 (citation omitted). lacking that [the case] should not . . . even be[ ] submitted to the jury.” Tibbs, 32A C.J.S. Evidence § 1303(b) (1996). Where evidence is insufficient, it is “so said reasonably that the intended inference may logically be drawn therefrom.” is, only where there is none at all, while ‘qualitatively,’ it fails when it cannot be qualitative analysis; ‘quantitatively,’ evidence may fail only if it is absent, that “Determining whether evidence is sufficient requires both quantitative and Am. Jur. 2d supra § 1430; see also Thompkins, 678 N.E.2d at 546. (quotation and citations omitted). “Sufficiency is a test of adequacy . . . .” 29A support the jury verdict as a matter of law.” Thompkins, 678 N.E.2d at 546 distinct and are governed by different standards. Broderick v. Watts the case may go to the jury or whether the evidence is legally sufficient to The often-confused concepts of weight and sufficiency of the evidence are term of art meaning that legal standard which is applied to determine whether 63-78 (1995). “With respect to sufficiency of the evidence, ‘sufficiency’ is a (2004); 11 C. Wright et al., Federal Practice and Procedure: Civil 2d § 2806, at Wright et al., Federal Practice and Procedure: Criminal 3d § 553, at 466-70 LaFave et al., Criminal Procedure § 24.6(d), at 546-47 (2d Ed. 1999); 3 C. 684 N.E.2d 668 (Ohio 1997); 29A Am. Jur. 2d Evidence § 1430 (1994); 5 W. by constitutional amendment on other grounds as stated by State v. Smith, (1982); State v. Thompkins, 678 N.E.2d 541, 546-48 (Ohio 1997), superseded So. 2d 708, 727 (Miss. 2005); see also Tibbs v. Florida, 457 U.S. 31, 41-43 153, 158-59, 162-63 (1992); O’Neill, 134 N.H. at 184-85; Glasper v. State, 914

Accordingly, we evaluate the trial court’s order on both grounds. evidence to be insufficient or conclusively against the weight of the evidence. may nevertheless conclude that the judgment is against the weight of the p. 7 Although a verdict may be supported by sufficient evidence, a trial “court

Here, James’ eyewitness testimony established a prima given to James’ testimony and were issues for the jury to resolve. See 7 his later identifications presented questions of credibility and the weight to be discrepancies between James’ description of the defendant to Officer Tuttle and identifications and found that the defendant committed the crime. Any

was sufficient to support the guilty verdict. that the defendant robbed James, and, therefore, the identification evidence court’s ruling, a rational juror could have found beyond a reasonable doubt 145 N.H. at 448-49; 29A Am. Jur. 2d supra § 1480. Contrary to the trial

these circumstances, the jury reasonably could have credited James’ again identified the defendant as the robber with “100 percent” certainty. In robber, and was “100 percent sure” of his identification. During trial, James person photographic array, James immediately recognized the defendant as the the defendant as the person who robbed him. When presented with a sixteenbut twice on the night of the incident. On two separate occasions, he identified reasonable doubt.” Id robbery against the defendant. James encountered the defendant not once, determine whether a ‘reasonable’ jury could have found guilt beyond a facie case of

omitted). guilt must be found ‘beyond a reasonable doubt,’ and then a search for any that the evidence was insufficient to prove guilt.” Id involve an inquiry solely into whether the jury was given an instruction that. (quotation and citations conclusions except guilt. The defendant bears the burden of demonstrating In applying the facts to the sufficiency standard, “[o]ur review does not solely upon circumstantial evidence, the evidence need not exclude all rational 29A Am. Jur. 2d supra § 1480. Further, “[b]ecause this case does not rely Graham, 142 N.H. 357, 360 (1997) (quoting O’Neill, 134 N.H. at 185); see also establish a prima facie case, no corroborating evidence is needed.’” State v.

search for sufficient evidence involves an evaluation of the evidence to evidence of guilt.” O’Neill, 134 N.H. at 185 (citation omitted). Rather, “[t]he

acquitted,” 21 Am. Jur. 2d Criminal Law § 414 (1998). consideration, and, even on an improper submission, the jury should have the trial [court] should not have submitted the cause to the jury for its 673 (2005); Tibbs, 457 U.S. at 41, because, “if the evidence was insufficient, and Federal Constitution prohibit a new trial, State v. Sweeney, 151 N.H. 666, to support a defendant’s conviction, the Double Jeopardy Clauses of the State O’Neill, 134 N.H. at 185 (citations omitted). Where the evidence is insufficient reasonable inferences therefrom in the light most favorable to the State.” guilt beyond a reasonable doubt, considering all the evidence and all “[W]e will reinstate the jury’s verdict unless no rational trier of fact could find review of such a decision is narrower. Kierstead p. 8 to set aside the verdict as against the weight of the evidence, our scope of Because the trial court has greater discretion when ruling upon a motion

court’s decision unless it was made without evidence or constituted an O’Neill, 134 N.H. at 184; Walker, 393 F.3d at 847-48. We will uphold the trial court] may set it aside.” Panas v. Harakis & K-Mart Corp., 118 N.H. at 496; see also However, “the jury verdict must be an unreasonable one before the [trial

weight. 29A Am. Jur. 2d, supra § 1431. jury’s findings unless the jury clearly failed to give the evidence its proper also 5 LaFave, supra § 24(d), at 547. The trial court should not disturb the “where a miscarriage of justice may have resulted.” 3 Wright, supra § 553; see cases in which the evidence preponderates heavily against the verdict” and resolution of the conflicting testimony.” Tibbs the [trial] court sits as a ‘thirteenth juror’ and disagrees with the jury’s with caution and invoke its power to grant a new trial “only in exceptional (1987) (citation omitted). Thus, the trial court should exercise its discretion evidence, does not mean that acquittal was the only proper verdict. Instead, against the weight of the evidence, “unlike a reversal based on insufficient, 129 N.H. 591, 603 A trial court’s grant of a new trial on the ground that the guilty verdict is

Kierstead, 118 N.H. at 496; see also Walker, 393 F.3d at 847-48. trial court has much more discretion when considering such a motion. the evidence primarily presents a question of fact for the trial court, and the among the jurors themselves.” Id. Thus, a motion addressed to the weight of “difference of opinion no more signifies acquittal than does a disagreement

burden of persuasion.” Thompkins, 678 N.E.2d at 549 (Cook, J., concurring). while weight is a question of “whether the state has appropriately carried its is a question of “whether the state has met its burden of production at trial,” 96 (2000) (emphasis added). This distinction is important because sufficiency evidence is “one no reasonable jury could return,” Mullin v. Joy, 145 N.H. 96, ___ (decided Oct. 16, 2007), a verdict conclusively against the weight of the whether a rational juror could have found guilt, State v. Pepin, 156 N.H. ___, Am. Jur. 2d supra § 1430. Thus, in contrast to sufficiency where we determine credible evidence supports one side of an issue or cause than the other.” 29A is basically “a determination of the trier of fact that a greater amount of depends on its effect in inducing belief.” Id.; see 32A C.J.S. supra § 1303(a). It the quantity or amount of evidence. It is not determined by mathematics, but supra § 1430. “The weight of the evidence is its weight in probative value, not and is generally not relevant to the question of sufficiency.” 29A Am. Jur. 2d The weight given to any evidence depends upon the particular circumstances evidence . . . is a somewhat more subjective concept than that of sufficiency. States v. Walker, 393 F.3d 842, 847 (8th Cir. 2005). “The weight of the evidence.” Thompkins, 678 N.E.2d at 546 (citation omitted); see also United defendant. See p. 9 physical attributes” such that the actual perpetrator was Daniels and not the to Officer Tuttle “simply varie[d] too greatly from [the defendant]’s actual sustain the trial court’s conclusion that James’ description of the perpetrator the evidence. The record does not establish an objective basis sufficient to discretion to the extent it found that the jury’s verdict was against the weight of court’s decision, we conclude that the trial court unsustainably exercised its After reviewing the evidence in the record in conjunction with the trial 9

trial court relied upon two apparent discrepancies between James’ initial

Lambert, 147 N.H. at 296. In reaching this conclusion, the

against the weight of the evidence. Id. at 47. defendant if the reversal is based upon a finding that the conviction was 42-43. Thus, the Double Jeopardy Clause does not preclude retrial of a support conviction and has persuaded the jury to convict.” Tibbs, 457 U.S. at . . . can occur only after the State both has presented sufficient evidence to contrary to it.” Id. Notably, “[a] reversal based on the weight of the evidence this context, our “action protects the role of the jury, . . . rather than running as against the contrary findings of the trial court. 11 Wright, supra § 2819. In trier of facts.” Lind v. Schenley Industries Inc. reexamine the facts found by the jury, but rather, reinstate the jury’s findings “there is [a] usurpation by the court of the prime function of the jury as the 1968). When we reverse the trial court’s grant of a new trial, we do not against the weight of the evidence. When a trial court grants such a motion, 1988); cf. Taylor v. Washington Terminal Co., 409 F.2d 145, 148 (D.C. Cir. see whether the trial court granted or denied a motion to set aside the verdict as also Kearns v. Keystone Shipping Co., 863 F.2d 177, 178-79 (1st Cir. The degree of deference to the trial court, however, depends upon determinations.” Pedrick, 181 F.3d at 1267 (quotation and citation omitted); review is to ensure that proper deference is given to a jury’s factual scrutinized than the denial of such a motion. This more stringent standard of evidence . . . the decision to grant a motion for new trial will be more closely § 2819. Therefore, “[w]here a court’s decision is based on the weight of the v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir. 1978); 11 Wright, supra see also United States v. Pedrick, 181 F.3d 1264, 1267 (11th Cir. 1999); Borras

doubtful case[s] . . . we should defer to [the trial court’s] judgment.” Id. judges, would have reached the same or a different result is immaterial. In the to a cold record.” Kierstead, 118 N.H. at 497. “Whether we, sitting as trial which cannot be gleaned from that portion of the proceedings that is reducible better position than we are to evaluate the whole atmosphere of a trial, much of trial judge “conducts the trial, observes the witnesses and the jury, and is in a judge ha[d] to appraise the situation.” 11 Wright, supra § 2819. After all, the cases applies to criminal cases). We “defer to the better opportunity the trial 134 N.H. at 184 (holding that standard of review laid out in Kierstead for civil unsustainable exercise of discretion. Kierstead, 118 N.H. at 496-97; O’Neill, the defendant committed the robbery. See p. 10 jury examined and properly weighed the conflicting evidence to conclude that evidence its proper weight. Rather, this was a classic jury case, in which the This is not one of those exceptional cases where the jury failed to give the relied, and that it unsustainably exercised its discretion in granting a new trial. that the trial court gave undue weight to the discrepancies upon which it Given James’ two positive identifications of the defendant, we conclude

Reversed and remanded evidence suggesting that James had a motive to fabricate the robbery. the case was that no robbery had occurred, the defendant presented no Finally, the trial court failed to consider that, although his apparent theory of identified the defendant as the perpetrator with “100 percent” certainty. trial court did not accord sufficient weight to the fact that James twice no such testimony. Moreover, in weighing these purported discrepancies, the goatee for many years” was clearly erroneous. Our review of the record reveals another witness corroborated the defendant’s testimony “that he had worn a since he was thirteen years of age. Indeed, the trial court’s explicit finding that BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, J J., concurred. 10 evidence corroborated his claim that he had in fact been wearing the goatee defendant testified that he had worn the goatee for eight straight years, no perpetrator had facial hair when he spoke with Officer Tuttle. While the trial court also gave undue weight to James’ inability to recall that the the perpetrator’s height to Officer Tuttle and the defendant’s actual height. The trial court gave undue weight to the differences between James’ description of also significantly underestimated the defendant’s height during trial. Thus, the less than the defendant’s actual height when reporting to Officer Tuttle, James

sentencing. 987 (Miss. 2007). Accordingly, we reinstate the jury’s verdict and remand for

While James estimated the perpetrator’s height as being considerably

Cir. 2002). undue weight to them. Cf. United States v. Campos, 306 F.3d 577, 580 (8th the evidence as a result of these differences, however, the trial court gave perpetrator: height and facial hair. In finding that the verdict was contrary to description to Officer Tuttle and his later identification of the defendant as the