2010-816, State of New Hampshire v. Timothy Perri

in: (1) denying his motion to suppress eyewitness identification evidence; (2) 631:4, I(a), II(a)(2) (2007). He argues that the Superior Court (Houran, J.) erred see RSA 629:1 (2007); RSA 6 32 - A:2, I(a), and criminal threatening, see RSA see RSA 632 - A:2, I(a) (2007), attempted aggravated felo nious sexual assault, kidnapping, see RSA 633:1, I(d) (2007), aggravated felonious sexual assault, HICKS, J. The defendant, Timothy Perri, appeals his convictions for

the defen dant. and Christopher M. Johnson, chief appellate defender, of Concord, orally, for Lisa L. Wolford, assistant appellate defender, of Concord, on the brief,

assistant attorney general, on the b rief and orally), for the State. Michael A. Delaney, attorney general (Susan P. McGinnis, senior

No. 2010 - 816 Carroll

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, Concor d, 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 p. 2 22 as 2

pursue the matter further. N.R. his contact information and told her to contact him if she wanted to approximately five m inutes while she looked at it. When he returned, he gave police cared about her case. He then gave N.R. the file and stepped away for person in the photo array, and later testified he did so to reassure her that the visited N.R. at work and told her he believed that she had chosen the right documents regarding his criminal b ackground. On June 19, p. 2 2009, McGinley assembled a file on the defendant, including photographs of him and Trooper McGinley, however, continued investigating the incident and

police suspended their inve stigation as a result of N.R.’s uncertainty. N.R. responded, “I don’t, I don’t know.” According to a police lieutenant, the response to Kelley’s question as to “how sure [she was] that it was the guy,” expressed u ncertainty as to her identification of the defendant. For example, i n the program director of the Child Advocacy Center. During that interview, N.R. On September p. 2 26, N.R. met at the police station with Elizabeth Kelley,

her home. N.R. identified the defendant as the attacker. department’s computer system and, on Sept ember p. 2 25, presented it to N.R. at displaying the defendant and seven other men selected from the police the description given by N.R. T he police assembled a photo graphic array and, a fter speaking with him, identified several characteristics that matche d when S tate T rooper Craig McGinley saw him walking near the scenic overlook man N.R. had described. The defendant was a pprehended several days later occurring in the same area, the police issued a “be on the lookout” alert for the After receiving another report on September 18 o f a sexual assault

and a goatee. his late twenties or early thirties, with a thin, muscular build, a narrow face, into the woods, and raped her. She described her attacker as a white man in sexual advance. A fter she rejected him, he pu nched her in the face, pulled her the man approached her again near a scen ic overlook and once more made a a painter in the area. S he rebuffed him and walked alone for about a mile, but sexual act. She sai d t he man told her he was from out of town and worked as 16 in North Conway when a man approached her and proposed to pay her for a walking home from work late on the evening of August p. 2 22, 2008, along Route defendant’s motion to suppress. N.R., the victim, told police that she had been The following facts are drawn from the trial court’s order denying the

the police. We affirm. of evidence of a pocket knife discovered on his person when apprehended by limiting his ability to cross - examine the victim; and ( p. 3 3) allowing the admission 3

procedure was unnecessarily suggestive. State v. King, 156 N.H. p. 3 371, 374 The defendant has the initial burden of proving that the identification that the d efendant was denied due process of law. Fecteau, 133 N.H. at 867. unnecessarily suggestive and conducive to irreparable mistaken identification determination, we ask whether the identification procedures used were so 178, 181 (2009); State v. Fecteau, 133 N.H. 860, 867 (1991). In making this that it is contrary to the weight of the evidence. State v. Bell - Rogers, 159 N.H. overturn the trial court’s ruling unless, after reviewing the record, we conclude On appeal from a motion to suppress identification evidence, we will not

in our analysis, id. at 2 p. 3 33. State v. Ball, 124 N.H. 226, 231 - 32 (1983), and rely on federal law only to aid We first address the defendant’s argument under the State Constitution,

Fourteenth Amendments of its federal counterpart. of his rights under Part I, Article 15 of the S tate Constitution and the Fifth and procedures employed by the police were unnecessarily suggestive, in violation identifying the defendant as her assailant. He contends that the identification cor rectly identified her assailant, and any in - court testimony positively 22, 2009 conversation with Officer Eichorn in which N.R. confirmed she had identification of the defendant in the photo array, any testimony about the July trial court to suppress any testimony about N.R.’s September 25, 2008 motion to suppress N.R. ’s identification of him as he r assailant. He asked the The defendant first argues that the trial court erred in denying his

threatening. After a retrial, a jury found him guilty of all four charges. charges of attemp ted aggravated felonious sexual assault and criminal a mistrial after a jury could not reach a verdict. Subsequently, the State added assault and kidnapping and a trial was held in April 2010. That trial ended in The State charged the defendant with aggravated felonious sexual

defendant was arrested on July 2 p. 4 4. yes, you’re positive that that was him.” N.R. answered, “I’m, yeah.” The Elizabeth Kelley. Eichorn then said, “so, at this point today you answered that remember discussing the photo array at the September 26, 2008 meeting with harping at me” and repeatedly asked how sure she was. N.R. did not photograph when first presented with the photo array, stating that “they kept had caused her to “second - guess[]” herself after selecting the defendant’s 25, 2008, to which N.R. responded, “Yes.” N.R. then explained that the police asked N.R. if she had identified her attacker in the photo array on September the Moultonborough Police Department for another interview. Officer Eichorn “help put this guy a way.” On July 22, N.R. met with Officer Jody Eichorn of On June 28, N.R. sent McGinley a text message stating she would like to 4

N.H. at 181 (“To determine whether the out - of - court identification procedure most of the [Attorney General] Guide lines’ explanations.” See Bell - Rogers, 159 identification,” notwithstanding that the police “did not provide [N. R.] with something before or cont emporaneously with the witness’ positive identity to the witness by means of the phot ographic display or by saying recognized, the pertinent inquiry is “whether the police indicated the suspect’s presenting the photographs was unnecessarily suggestive. As the trial court and of itself, sati sfy the defendant’s burden to show that the manner of follow every recommendation of the attorney general guidelines does not, in possible suggestiveness in a photo array.” We disagree. That the police did not Hampshire [Attorney General] protocols specifically designed to eliminate unnecessarily suggestive because the officers “failed materially to follow New The defendant argues that the photo array procedures were

she had selected the person of interest. sh e rated her level of certainty a seven out of ten. The officers did not tell her asked her how sure she was that the man she selected was her attacker and without hesitation and initialed and dated the space below his image. Faia on the table, N.R. identified the photograph of the defendant as her attacker person isn’t in the lineup, do not select anyone.” Afte r placing the photographs to pick the person who attacked her if his picture was in the array, but “[i]f that interest in the case and asked her to look at some photographs. Faia told her Broyer took the photo array to N.R.’s ho me and told her they had a person of appearance of the defendant. Lieutenant Joseph Faia and Sergeant Alan through a computer system using N.R.’s description of her attacker and the The September 25 photo array contained eight pictures generated

Biggers, p. 4 409 U.S. at 199 - 200.

and the length of time between the crime and the confrontation. level of certainty demonstrated by the witness at the confrontation, the accuracy of the witness’ prior description of the criminal, the criminal at the time of the crime, the witnes s’ degree of attention, misidentification include the opportunity of the witness to view the the factors to be considered in evaluating the likelihood of

Under Biggers,

this stage of the inquiry, the State bears the burden. Id. identification unreliable and, hence, inadmissible. King, 1 p. 5 56 N.H. at 37 p. 4 4. At whether the identification procedure was so suggestive as to render the factors enumerated in Neil v. Biggers, 409 U.S. 188 (1972), to determine (2007). Only if the defendant has met his burden must we then consider the 5

defendant, a document entitled “S tate v. Timothy Perri / Sexual Assault,” and subsequently allowed her to review a file containing photographs of the con veyed to her his opinion that the defendant was her attacker” and the defendant’s file was suggestive. The court noted that McGinley “explicitly appeal, that McGinley ’s conduct when he visited N.R. at work and showed her The trial court determined, and the State does not argue otherwise on

(quotatio n and ellips i s omitted). result from the earlier confrontation but was independent thereof.” Id. subsequent in - court identification will also be inadmissible “unless it did not 374. If that iden tification is found inadmissible under this test, N.R.’s N.R.’s July 2009 out - of - court identification of the defendant. King, 1 p. 5 56 N.H. at As noted, we employ a two - step analysis to determine the admissibility of

identifications should have been excluded from trial. McGinl ey’s interactions with her in June 2009, and, accordingly, both identification of him were “irrevocably taint[ed]” as a result of Trooper July 2009 meeting with Officer Eichorn and her subsequent in - court The defendant next argues that N.R.’s identification of him during her

conclusio n under the Federal Constitution. States v. Flenory, 619 F.2d 301, 304 (3d Cir. 1980), we reach the same rights than the State Constitution under these circumstances, see, e.g., United Because the Federal Constitution is no more protective of the defendant’s

the evidence. decision as to the admissibility of the photo array was contrary to the wei ght of 181 (quotation omitted). Accordingly, we cannot conclude that the trial court’s their opinion of the criminal’s identity to the witness.” Bell - Rogers, 1 p. 5 59 N.H. at that would satisfy his burden to show that “the police have impl icitly conveyed characteristics similar to the defendant’s. The defendant has provided nothing photograph, such as an absence of other images of men with goatees or photo array display the images in a manner that highlighted the defendant’s decision or implied she should select a particular photograph. Nor did the court found, there was no indication that the officers rushed N.R. to make a told her that the defendant’s photograph depicted that person. A s the trial police told N.R. they had a person of interest, there is no evidence that they suggestiveness in the photo array. Cf. Fecteau, 133 N.H. at 867. Although the Our review of the record, including the photo array itself, indicates no

photographic display.” (q uotat ion omitted)). conveyed their opinion of the criminal ’ s identity to the witness by means of the was unnecessarily suggestive we ask whether the police have implicitly p. 6 6

trial e nded in a mistrial, its jury foreperson, A.C., wrote a message to N.R. via The facts relevant to this claim of error are as follows. After t he first jury

trial. wh o helped prepare her for the second trial was the jury for eperson in the first from eliciting testimony from N.R. that would have demonstrated that a person Next, the defendant argues that the trial court erred in proh ibiting him

Constitution. attacker). Accordingly, we reach the same conclusion under the Federal description of his characteristics, and had “no doubt” defendant was the sufficiently reliable where victim faced attacker twice, provided detailed these circumstances. S ee, e.g., Biggers, 409 U.S. at 200 - 01 (identification more protective of the defendant’s rights than the State Constit ution under As is true with respect to t he photo array, the Federal Constitution is no

admissible. admissible under Biggers, it follows that her in - court identification was also Because N.R.’s July 2009 out - of - court identification of the defendant was

was not contrary to the weight of the evidence. reliability to warrant admission at trial. Accordingly, the trial cour t’s decision defendant after meeting with Trooper McGinley bore sufficient indicia of the tot ality of the circumstances, N.R.’s out - of - court identification of the the defendant’s face “really stood out . . . like right away when I saw it.” U nder defendant’s photograph when presented with the photo array, she did note that smoker. While she did not exhibit complete certainty in her choice of the thin, and muscular, having a narrow face and a dark goatee, and being a defendant before the June 2009 meeting with Trooper McGinley as being white, against her neck and had an odor of cigarettes. She accurately described the c haracteristics, as well as by her observation that he held a folding pocket knife was high is shown by her accurate description of his clothing and facial her, and faced her as he raped her on the ground. That her degree of attention he first propositioned her for sex and later when he approached her, punched view the defendant on the day of the assault, includin g in a well - lit area when sufficiently reliable to warrant admission at trial. She had two opportunities to support s a finding that N.R.’s identification of the defendant in July 2009 was We agree with the trial court that con sideration of the five Biggers factors

convincing evidence. because it concluded that the State had satisfied the Biggers test by clear and against women. The court nevertheless did not exclude the later identification writings about the defendant that eviden ced a propensity to commit violence p. 7 7

the trial court considerable deference in determining whether to admi t or State v. Cassavaugh, 161 N.H. 90, 98 (2010) (quotation omitted). We accord

established propositions in th e case. may cause a jury to base its decision on something other than the instinct to punish, or trigger other mainsprings of human action that appeal to a jury’s sympathies, arouse its sense of horror, provoke its Evidence is unfairly prejudicial if its primary purpose or effect is to

needless presenta tion of cumulative evidence.” N.H. R. Ev. 403. misleading the jury, or by considerations of undue delay, waste of time, or outweighed by the danger of unfair prejudice, confusion of the issues, or Relevant evidence “may be excluded if its probative value is substantially

the trial court sustainably exercised its discretion under the cir cumstances. contend that the excluded references were not relevant; rather, it argues that “seriously undermined [his] ability to present a defense.” The State does not the prior trial. The defendant contends this was reversible error because it defense counsel was precluded from inquiring about A.C.’s status as a juror at or prior fact finder as a jury and the findings of that jury.” A ccordingly, “except those [questions] that are premised upon the existence of a prior trial render a decision. Thus, defense counsel was permitted to ask anything about the fact that there was a former trial at which another jury was unable to However, the court prohibited defense counsel from referring to or inquiring observed her testimony . . . later contacted [N.R.] and made suggestions.” defense counsel to make any “inquiries concerning whether someone who partially granted the defendant’s request, ruling that it was “fair game” for to potentially be more emotional” to convince the jury to believe her. The court that this information “goes to [N.R. ’s] motivation to make her testimony better, permission t o elicit testimony relating to N.R. ’s exchanges with A.C., asserting In a motion argued outsid e the jury’s presence, t he defendant sought

cry. question about her level of certainty; and to be more emotional and feel free to Advocacy Center director Elizabeth Kelley “I don’t know” in response to a at the September 25, 200 p. 8 8 photo array; to better explain why she told Child advis ing her to make clear she was certain of her identification of the defendant advocate, A.C. provided N.R. with “tips on how to improve [her] testimony,” trial. During o ne meeting that took place in the presenc e of a victim/witness might improve her testimony to be more credible to the jury in the subsequent correspondence and eventually met in person to discuss ways in which N.R. should N.R. have “any questions.” The two women then began a provided details as to how the jurors voted and offered her contact information noting that others on the jury believed the defendant was guilty. A. C. also Facebook expressing feelings of support, telling her she believed in N.R. and 8

that jury had speculated that there had been previous trials). In light of these though trials referred to as “proceedings,” when it was evident from the record instruct jury that defendant had been acquitted of charges in other trials, even (Colo. 200 p. 8 8) (en banc) (finding reversible error where trial court failed to impermissible considerations. See, e.g., Kinney v. People, 187 P.3d 548, 558 prior trial’s outcome and the deliberations of the prior jury – both and confusing the jury because it may have led jurors to speculate as to the the prior “trial,” rather than a prior “hearing,” would have risked misleading afforded a mere observer of the prior testimony. But p ermitting reference to give A.C.’s advice special consideration that she would not otherwise have enhance her testimony. A rational jury could have believed that N.R. would deficiencies in N.R. ’ s testimony at the prior trial and make recommendations to because A.C. was i n a unique position, as a juror, to understand the the jury assess the credibility of N.R. ’s testimony in the subsequent trial K nowledge of A.C.’s status as a juror at a prior trial c ould have helped

that ended in a deadlocked jury. fact that A.C. was a juror at a prior trial – not merely a n observer at a hearing – need only determine whether the court erred in prohibiting any reference to the Because the court permitted defense counsel to explore these topics freely, we there fore, had an in formed opinion about why that testimony fell short. by a person who had observed her previous testimony first - hand and, influenced not by t he truth or by genuine emotions, but by “coaching” pro vided N.R. ’s credibility because they tend ed to suggest her in - court testimony was Kelley, and crying during the testimony. All of the se facts were pertinent to clarifyin g her testimony about the September 26, 200 p. 8 8 interview with Elizabeth improve [her] testimony,” such as being more emotional, giving more details, N.R. ’s exchanges with A.C., including that A.C. provided “tips on how to and contacted her thirty days later. Counsel also elicited many details about as she did at trial; and that A.C. observed her testimony at the former “hearing” prior tes timony; th at N.R. faced the same questions during her prior testimony the same prosecutor, defense attorney, and defendant were present during her that she testified four months earlier under oath with a judge presiding; that Defense counsel elicited several pertinent facts bearing on N.R. ’s credibility: thorough cross - examination of N.R. with respect to her exchanges w ith A.C. outset, we note that defense counsel was permitted to, and did, engage in a the jury of that trial constituted an unsustainable exercise of discretion. At the direct references to the former tr ial or the identity of A.C. as the foreperson of We disagree with the defendant that the trial court ’s decision precluding

the prejudice of his case. State v. Stowe, 162 N.H. 464, 470 (2011). demonstrate t hat the court’ s ruling was clearly untenable or unreasonable to (2007). To show an unsustainable exercise of discretion, the defendant must an unsustainable exercise of discretion. State v. Miller, 155 N.H. 246, 252 exclude evidence under Rule 403, and we will not disturb its decision absent p. 9 9

excluding all references to the prior trial. not propose such instructions to the trial court as a viable alternative to omitted)). Specifically, during the arguments on this issue, the defendant did appropriate where an alleged error involves a jury instruction.” (quotation opportunity to correct an error it may have made and is particularly grounded in common sense and judicial economy, affords the trial court an specified or called to the court’s attent ion at the trial. This requirement, (200 p. 9 9) (“As a general rule, we will not consider grounds of objections not claim is not preserved for our review. Cf. State v. Hynes, 159 N.H. 187, 205 status as a juror or to the prior “trial” through timely jury instructions, that that the trial court could have cured any dangers of allowing reference to A.C.’s To the extent that the defendant premises his argument upon a claim

sustainable balance. Giovanelli or oth er compelling reasons. Here, however, the trial court struck a unsustainable exercise of discretion for reasons similar to those present in be circumstances in which prohibiting reference to a prior trial constitutes an credibility issues – as the court found to be a concern in Giovanelli. There may unduly inhibit the opportunity to confront witnesses for potential bias or other determine whet her limiting a defendant’s proposed line of questioning would course, trial courts have an obligation to examine the facts of each case to prior hearing bore the same indicia of solemnity and dign ity as the trial. Of trial,” Giovanelli, p. 9 945 F.2d at 488, here defense counsel established that the witnesses had been made “in a setting as solemn and dignified as the current in which the defense could not establish that the prior statements of the ability to remember her statements at th at trial. Also in contrast to Giovanelli, suggest that the prohibition on reference to a prior “trial” inhibited N.R. ’s precise t ime and context of her prior testimony. The defendant does not Giovanelli, 945 F.2d at 488, here defense counsel directed N.R. ’s memory to the focus a witness’ attention on a specific prior inconsistent statement,” contrast to the court’s concern in Giovanelli that “it was at times impossible to 488, it did so for rea sons that do not apply to this case. For example, in when cross - examining witnesses who had testified at the prior trials, id. at should have been permitted to refer to prior “trials” rather than “proceedings” a contrary result. Although in that case the court held that the defendant s United States v. Giovanelli, 945 F.2d 479 (2d Cir. 1991), does not require

prior trial of this case” (quotations omitted)). (permitting counsel to refer to witness’s testimony at “a prior trial” but not “the provided. Cf. United States v. Cook, 776 F. Supp. 755, 760 (S.D.N.Y. 1 p. 9 991) A.C.’s status as a juror and the outcome of the former trial would have that t hese risks subs tantially outweigh ed whatever marginal probative value considerations, t he trial court acted wel l within its discretion in concluding p. 10 10

jeans with paint on them, was smoking a cigarette, and had a g oatee. In he observ ed that the defendant was wearing a hooded sweatshirt and dark defendant in his police cruiser and stopped him for questioning, during which matched the description of the rape suspect. McGinley pulled behind the Septemb er 21, he saw the defendant walking near the overlook and believed he scenic overlook in North Conway. He testified that, a t around 8:40 p.m. on sweatshirt. McGinley later learned that N.R.’s assault took place near the breath,” who may be a painter and had been seen wearing a maroon hooded 5’7” to 5’8” tall, slim build and unshaven face with goa tee[, and]. . . smoker’s indicated that the Conway police were looking for a “white male, in his 30 ’ s, lookout” alert describing “multiple forcible rape[s]” in the area. The report defendant. O n September 19, Trooper McGinley received the “be on the Here, the police were justified in conducting a protective frisk of the

the presence of a weapon. Id. the frisk must be strictly confined to what is minimally necessary to dis cover the officer to pursue his investig ati on without fear of violence. Id. Therefore, purpose of a protective frisk is not to discover evidence of a crime, but to allow presently dangerous. State v. Michelson, 160 N.H. 270, 272 (20 p. 10 10). T he conduct a protecti ve frisk if he reasonably believes the individual is armed and Once an officer is justified in making an investigatory stop, he may also

we review de novo.” State v. Roach, 141 N.H. 64, 66 (1996). appropriate legal standard to those facts, however, is a question of law, which McKinnon - Andrews, 151 N.H. 19, 22 (2004). “T he application of the unless they lack support in the record or are clearly erroneous. State v. at 233. In reviewing the trial court ’ s ruling, we accept its factual findings Ball, 124 N.H. at 231 - 32, and rely on federal law only to aid in our analysis, id. We first address the defendant’ s argument under the State Constitution,

applied to preclude its exclusion at trial. second that, even if the frisk was unlawful, the inevitable discovery doctrine reasonable suspicion to believe the defend ant was armed and dangerous, and defends the search on two grounds, contending first that the officers had required to justify the frisk search that led to the knife’s discovery. The State to others,” State v. Co ons, 137 N.H. 365, 367 (1993) (quotation omitted), as is “reasonable belief that [he was] armed and presently dangerous to the officer or her during the assault. The defendant contends that the police lacked attacker held a folding pocket knife against her throat and threatened to kill the pocket knife as evidence tending to corroborate N.R. ’s statement that he r was detained. The State presented the detaining officer’s testimony describing motion to suppress evidence that he possessed a folding pocket knife when he Next, the defendant argues that the trial cour t erred in denying his

pocket knife from his pocket, he ard the sound of a knife clicking open, and felt folding pocketknife,” while N.R. testified that she saw the defendant pull a consistent terms: Walker testified that the knife on the defendant “was just a described by N.R., both Officer Walker and N.R. described their observations in “no way to establish that the knife found on” him “was similar to” the knife 2008 assault. However, contrary to the defendant’s assertion that there was detained was the same as, or even similar to, the knife used in the August 22, because the State did not establish that the knife found on him wh en he was The defendant contends that the evidence had no probative value

or unreasonable to the prejudice of his case. Id. the defendant must demonstrate that the court’s ruling was clearly untenable 163 N.H. 790, 795 (2012). To show an unsustainable exercise of discretion, determination absent an unsustainable exercise of discretion. State v. Town, question for the trial court’s sound discretion, and we will not overturn its without the evidence.” N.H. R. Ev. 401. Whether evide nce is relevant is a determination of the action more probable or less probable than it would be tendency to make the existence of any fact that is of consequence to the to be admissible. N.H. R. Ev. 402. Relevant evidence is that which has “any pocket knife evidence because it was irrelevant. All evidence must be relevant Finally, the defendant argues that the trial court erred by admitting the

the Federal Constitution. F.3d at 640; Michelson, 160 N.H. at 273, we reach the same conclusion under rights than the State Constitution under these circumstances, see Barnett, 505 Because the Federal Constitution is no more protective of the defendant’s

violence”). the reason for the stop is, as here, an articulable suspicion of a crime of (Harlan, J., concurring) (“the right to frisk must be immediate and automatic if reasonably expected to involve a weapon”); Terry v. Ohio, 392 U.S. 1, 33 (1968) frisk where person was suspected of burglary, a crime “normally and States v. Barnett, 505 F.3d 637, 640 (7th Cir. 2007) (reasonable s uspicion to involving or associated with carrying or using a weapon.”) (citing cases); United when an officer has reasonable suspicion that the suspect committed a crime routinely hold that protective frisks to ensure officer safety are permissible United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007) (“[C]ourts dangerous when faced with imminent apprehension by the authorities. Cf. there was r easonable suspicion to believe the defendant would be armed and the person described in the re port of a violent rape occurring in the same area, pocket knife. Given that the defendant’s appeara nce closely corresponded to according to his testimony, patted the defendant down and found the folding report “to a tee.” After backup police officers a rrived on the scene, on e of them, McGinley’s estimation, the defendant matched the person described in the p. 12 12

DALIANIS, C.J.