2006-418, STATE OF NH v. DANIEL KING

genitals were exposed. K.C. informed her supervisor, Derrick Williams, of what back towards the man to give him his coffee. She again noticed that the man’s

were exposed. K.C. turned around to put money in the register and turned coffee. When K.C. approached the window, she noticed that the man’s genitals drive-through window on Loudon Road in Concord. A man ordered a large October 11, 2003, fifteen-year-old K.C. was working at the Dunkin’ Donuts The record supports the following facts. Between 7:00 and 7:30 p.m. on

court identifications. We affirm. Superior Court (Smukler, J.) denying his motion to suppress the victim’s in- HICKS, J. The defendant, Daniel King, appeals a decision of the

and orally, for the defendant. James T. Brooks, assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

editorial errors in order that corrections may be made before the opinion goes No. 2006-418 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the man who had exposed himself to her. The jury found the defendant guilty. K.C. testified at the trial de novo and again identified the defendant as

appealed to the superior court for a his accuser.” The defendant denied driving into Concord that day. in fact his rights would have been compromised had he not been confronted by Corporal Barrett Moulton spoke with the defendant at his residence that night. defendant “had a constitutional right to be confronted by his accuser . . . and suggestive because the court proceedings were necessary to the trial and the p. 2 200 (1972). The court held that K.C.’s identification was not unnecessarily under the due process analysis set forth in Neil v. Biggers, 409 U.S. 188, 199identification of the defendant was impermissibly suggestive and unreliable since K.C. failed to identify the defendant from the photo array, any in-court court identification and prevent her from testifying. The defendant argued that Prior to the trial, the defendant filed a motion to suppress K.C.’s district

himself to her. The defendant was convicted in the district court and he district court, she identified the defendant as the man who had exposed registered to a Ford Taurus wagon owned by the defendant. Loudon Police and it just clicked that that was the man.” During her trial testimony in the defendant at the court, she had “a flashback to the night of Dunkin Donuts selected the photograph of the other suspect. defendant entered the courtroom. According to K.C., when she saw the exposure in Concord District Court. She was sitting in the gallery when the On May 7, p. 2 2004, K.C. attended the defendant’s trial for indecent

that he might have done so accidentally. genitals when he went through the drive-through, the defendant acknowledged When the detective questioned whether he could have accidentally exposed his October 11, p. 2 2003, but claimed that he merely turned around in the parking lot. at his workplace, at which time he admitted being at Dunkin’ Donuts on Concord Police Detective Todd Flanagan later interviewed the defendant description of the man and his license plate number. The number was Boyd arrived shortly thereafter. K.C. provided Sergeant Boyd with a down the plate number. Williams contacted the police and Sergeant Ranee expressed her uncertainty in further narrowing her choice, but ultimately narrowed her choices to two suspects, one of whom is the defendant. K.C. white pictures. Although K.C. was unable to positively identify a suspect, she K.C. at her school and showed her a photo array containing eight black and On October 16, 2003, Concord Police Detective John Thomas met with

She leaned out the window, saw a car parked in front of a trashcan and wrote she had seen and he advised her to write down the man’s license plate number. p. 3 3

enumerated in defendant has met his burden must we then consider the factors inquiry, the defendant has the burden of proof. Only if the impermissibly or unnecessarily suggestive. At this stage of the

the inquiry, the State bears the burden. identification unreliable and, hence, inadmissible. At this stage of identification procedure was so suggestive as to render the

jumpsuit, and she saw him escorted to the defendant’s table.

Initially, we inquire into whether the identification procedure was

two-step analysis as follows in State v. LaRose, 127 N.H. 146 (1985): referred to as the ‘ the proceeding was about, and she fully-expected [Biggers ’ test.” See Biggers, 409 U.S. 188. We described the identification should be analyzed under the two-step analysis “commonly The defendant also contends that the propriety of the district court showup”: (Citations omitted.)

array. courtroom. She saw that [the defendant] was wearing a prison suggestive on its own; and second, whether it was tainted by the prior photo courtroom, she observed a sheriff bring [the defendant] into the defendant’s] case, the courtroom was empty. While K.C. sat in the perpetrator. Aside from people directly involved in [the

When K.C. arrived at the Concord District Court, she knew what

identification itself. He asserts that “[w]hat occurred there was a one-man The defendant first challenges the conditions of the district court

court identification raises two questions: first, whether it was unnecessarily identification, as well as any future identification, unreliable.” The district Concord District Court were unnecessarily suggestive, rendering [that] contends that “the conditions surrounding K.C.’s identification of him at defendant’s right to due process.” Biggers, 409 U.S. at 198. The defendant In general, “[i]t is the likelihood of misidentification which violates a

N.H. 226, 2 p. 3 31, 233 (1983). Constitution, citing federal opinions for guidance only. See State v. Ball, 12 p. 4 4 due process rights. We first address the defendant’s claims under our State Constitution, that the admission of K.C.’s identifications of him violated his Hampshire Constitution and the Fourteenth Amendment to the United States On appeal, the defendant argues, citing Part I, Article 15 of the New 4

present to observe the pretrial identification, [the fact finder is] not

analysis applies to impermissibly suggestive pre-trial identifications”), suggestive pretrial identification. Because the [fact finder is] not observations at the time of the crime charged, but from the identifies the person in court, not from his or her recollection of been suggestive pretrial identification, is that the witness later The concern with in-court identification, where there has must be made in a way that is not suggestive.” admissibility: and in-court identifications that justify different treatment in determining their The court in Domina explained the differences between initial pretrial

denied, 506 U.S. 96 p. 4 4 (1992).

analysis applies to . . . in-court identifications for the same reasons that the United States v. Hill, 967 F.2d 226, 232 (6th Cir.) (holding “that the Biggers identifications.” State v. Lewis, 609 S.E.2d 515, 518 (S.C. 2005). But see of courts have [concluded] that Neil v. Biggers does not apply to in-court trial confrontation. Id. Accordingly, “the majority in-court identification procedures nor indicated that in-court identification strictly in-court identification not preceded by an impermissibly suggestive predenied, p. 4 479 U.S. 1038 (1987). “None of these cases has set any guidelines for e.g., United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986), cert. pretrial identifications and the in-court identifications that follow them. See, Supreme Court cases preceding it dealt with the exclusion of impermissible Other courts have noted that Biggers and the line of United States

clerk to stand). procedure at the outset of trial in which defendant was asked by the court whether witness had grounds to identify defendant independent of challenged confrontation”).

yet, however, explicitly considered whether this two-step analysis applies to a independent thereof.” State v. Ober, 116 N.H. 381, 383 (1976). We have not id., unless it “did not result from the earlier confrontation . . . but was under this test, a subsequent in-court identification will also be inadmissible, have also noted that if an out-of-court identification is found inadmissible an out-of-court identification.” LaRose, 127 N.H. at 150 (emphasis added). We As we noted in LaRose, this test is used to determine “the admissibility of

at the confrontation, and the length of time between the crime and the description of the criminal, the level of certainty demonstrated by the witness the crime, the witness’ degree of attention, the accuracy of the witness’ prior misidentification,” the witness’ opportunity “to view the criminal at the time of (listing, among the “factors to be considered in evaluating the likelihood of LaRose, 1 p. 4 46 N.H. at 1 p. 5 50 (citations omitted); see Biggers, 409 U.S. at 199-200 5

from any opportunity for effective cross-examination to

opportunity to view the circumstances and assess evidentiary worth.”

to testifying. instances in which pretrial procedure effectively bars the defendant and subjected to the jury’s scrutiny, the case is unlike the classic prior cases. In certainty expressed in court than initially. of concern were clearly brought out through cross-examination immediate challenge through cross-examination. confirmation of the earlier identification, with much greater issue of the soundness of the identifications. Because the sources There is a danger that the identification in court may only be a [T]here was adequate opportunity at trial to address the serious

the identification procedure.” procedure with one allegedly so tainted. We noted: (1986), we contrasted an in-court identification untainted by improper pretrial (quotation and ellipsis omitted). Similarly, in State v. Cross, 128 N.H. 732

order to lessen the hazards of undue weight or mistake.” has been no abuse. Not only is counsel present, but the jury has full witness, contemporaneously exposing weaknesses and adding perspective in Ober, 116 N.H. at 384. We noted that “[i]n terms of fairness there an identification witness to be made cognizant of the defendant’s identity prior

Ober, we concluded that it was not “intolerably prejudicial” for

This reasoning comports with our treatment of in-court identifications in assess the identification itself, an initial in-court identification is subject to 14 (1977) (quotation omitted). are not available to the [fact finder] during this pretrial proceeding.

accuracy of the identification – including reference to . . . any suggestibility in Counsel can also “argue in summation as to factors causing doubts as to the 480 N.E.2d 1147, 11 p. 5 51 (Ill. App. Ct. 1985), cert. denied, 475 U.S. 1089 (1986).

at trial, defense counsel may test the perceptions, memory and bias of the F.2d 61 p. 5 5, 617 (9th Cir. 1974). “Where a witness first identifies the defendant

In addition to affording the fact finder the opportunity to observe and everyday life when judging the reliability of a person’s statements, Domina body language, and the other normal observations one makes in, 784 F.2d at 1368 (citation omitted). identification, the witness’s facial expressions, voice inflection, and is able to evaluate the reliability of the initial identification. finder] can observe the witness during the identification process When the initial identification is in court, . . . [t]he [fact

certainty or hesitation of the witness when making the able to observe the witness making that initial identification. The p. 6 6

These are matters within the discretion of the court.” identification affect only the identification’s weight, not its admissibility.” identification procedure, “questions as to the reliability of a proposed in-court discussion above, the general rule is that absent an unduly suggestive pretrial that the Biggers analysis does not apply. In addition, in accordance with our As the photographic array was not unduly suggestive, we again conclude

States v. Beeler, p. 6 62 F. Supp. 2d 136, 141 (D. Me. 1999). suggestive as to cause the substantial likelihood of misidentification.” United presume that the pretrial identification procedure was not so impermissibly was unable to select Defendant from the [photographic array], the Court will the photographic array was itself improper. In fact, “[g]iven that [the witness] court identification, such as seating the defendant elsewhere in the room. the prior photographic array. We note that the defendant makes no claim that court line-up or other particular methods of lessening the suggestiveness of in- We now consider whether the district court identification was tainted by pretrial corporeal lineup. “[T]here is no constitutional entitlement to an incourt identification was inadmissible because the State could have arranged a S.W.3d 785, 787 (Tex. Ct. App. 2000). a lineup, whether conducted before or during trial.” Maxwell v. State, 10 to the point of inadmissibility”). “A defendant simply does not have the right to possibilities for better procedures that the actual identifications were unreliable discretion, could have ordered a line-up, but “it does not follow from these U.S. 1157 (2004); see also Cross, 128 N.H. at 735 (noting that court, in its 344 F.3d 1057, 1063 (10th Cir. 2003) (quotation omitted), cert. denied, 540

argument.”

Similar precedent answers the defendant’s contention that the district identifications, we join the apparent majority of courts in concluding “that exercise of trial court’s discretion), cert. denied, 45 p. 6 6 U.S. 1011 (1982). (noting that propriety of in-court identification procedure is determined in the trial court.” See also United States v. Bennett, 675 F.2d 596, 598 (4th Cir.) not of constitutional magnitude but rests within the sound discretion of the (Conn. 1986), “[t]he manner in which in-court identifications are conducted is concern. Rather, as stated by the court in State v. Smith, 512 A.2d 189, 193 normal trial procedure employed here does not rise to the level of constitutional

Lewis, p. 6 609 S.E.2d at 518. The inherent suggestiveness in the

alleged suggestiveness of an in-court identification is cross-examination and v. Biggers does not apply to in-court identifications and that the remedy for any

Based upon the different considerations involved in pretrial and in-court

Cross, 128 N.H. at 735.

suggestiveness and final witness identification. demonstrate a causal connection between undue police p. 7 7

motion to suppress.

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

Accordingly, we find no error in the trial court court’s denial of the defendant’s Federal Constitution. See Domina, p. 7 784 F.2d at 1368; Briggs, 700 F.2d at 413. We reach the same result, based upon the same analysis, under the

second step of the analysis). the reasoning outlined above, the identifications were impermissibly suggestive, it was not necessary to reach the conclude that the superior court identification was properly admitted. Under defendant had not met his burden of showing that the out-of-court identification was admissible. See LaRose, 12 p. 7 7 N.H. at 151 (noting that where factors, and would again reach the conclusion that the superior court reasons stated above. Thus, we would not need to apply the Biggers reliability that the district court identification was not unnecessarily suggestive for the In the alternative, if we applied the Biggers analysis, we would conclude determine.” to its admissibility, and thus raises a proper question of fact for the jury to identification did not taint the subsequent identification in superior court. identify a defendant goes to the credibility of the in-court identification and not improper. In addition, because it was not improper, the district court district court identification, even if considered a pretrial procedure, was not

either on its own or as a result of the inconclusive photographic array, we Having found that the district court identification need not be excluded,

Sublett, 63 F.3d 926, 929 (9th Cir.), cert. denied, 516 U.S. 101 p. 7 7 (1995). 461 U.S. 947, and cert. denied, 462 U.S. 1110 (1983); see also Johnson v.

United States v. Briggs, p. 7 700 F.2d 408, 413 (7th Cir.), cert. denied,

Instead, we agree with the courts holding that “a witness’s prior inability to are not persuaded by their analyses and are not bound by their decisions. F.3d at 112 p. 7 7, 1130. With due respect to the Beeler and Emanuele courts, we suggestive in and of itself.” Beeler, 62 F. Supp. 2d at 141; see Emanuele, 51 who did not make a prior positive identification “would be impermissibly F.3d 1123 (3d Cir.1995), which held that an in-court identification by a witness The defendant relies upon Beeler and United States v. Emanuele, 51

statute on other grounds. United States v. Matthews, 20 F.3d 538, 54 p. 7 7 (2d Cir. 1994), superseded by