2013-0136, State of New Hampshire v. James Perry

indictment alleged that on or about that date, the defendant, occurring on or about December 14, 2011. The attempted kidnapping one count of criminal restraint arising out of a single course of conduct The defendant was indicted on one count of attempted kidnapping and

remand. 629:1 (2007); RSA 633:1, I (2007). We affirm in part, vacate in part, and a jury trial in Superior Court (Delker, J.), of attempted kidnapping. See RSA HICKS, J. The defendant, James Perry, appeals his conviction, following

the brief and orally, for the defendant. Stephanie Hausman, senior assistant appellate defender, of Concord, on

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Geoffrey W.R. Ward, assistant

No. 2013 - 136 Rockingham

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

which she could not identify the defendant. See King, 156 N.H. at 37 p. 2 2. Thus, notes the witness in King was presented, prior to trial, with a photo array from On appeal, the defendant argues that King is distinguishable. First, he

State v. King, 156 N.H. 371 ( p. 2 2007), and allowed the in - court identification. trial court found the Biggers analysis inapplicable according to our holding in inadmissible under the analysis of Neil v. Biggers, 409 U.S. 188 (1972). The that an in - court identification would be “unconstitution ally suggestive” and At that subsequent sidebar conference, counsel for the defendant argued

to address the defendant’s objection. an identificat ion from the victim, they would approach the bench at that time court identification, and counsel agreed that if the State should decid e to s eek The defendant’s counsel objected, noting that there had never been an out - of victim during her testimony that she would be able to identify the defendant. she might attempt an i dentification if she got “some sort of sense” from the the victim to identify the perpetrator of the crime, the prosecutor st ated that proceedings. Specifically, although t he State had not initially planned to ask defend ant advised the court of an issue that might arise during the 404 ( p. 2 2012). Just prior to the start of trial, counsel for the State and for the that it is con trary to the weight of the evidence.” State v. Perri, 164 N.H. 400, 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

trial.” RSA 633:1, II ( p. 2 2007). We will address each argument in turn. release[] the victim without serious bodily injury and in a safe pl ace prior to find, a fact necessary for that level offense; namely, that he did not “voluntarily felony when the indictment failed to allege, and the jury was not instructed to made a prior out - of - court identification; and (2) sent encing him for a class A admitting the victim’s in - court identification of the defendant when she had not On appeal, the defendant argues that the trial court erred by: (1)

any appeal. holding the criminal restraint convicti on in abeyance pending the outcome of sentenced the defendant only on the attempted kidnapping conviction, while arose out of the same uninterrupted course of conduct, the trial court The jury convicted the defendant on both counts, but, because the offenses

commission of said crime. . .. believed them to be constituted a substantial [step] toward the unlock the rear door, . . . which under the circumstances as he lap while she was seated in the driver seat when she failed to her car, told her to unlock her rear door and then dove across [her] side door and displayed a weapon while telling her to get back in . . . approached [the victim] while she was standing at her driver a cting with a purpose that the crime of Kidnapping be committed, p. 3 3

beforehand and then we can address those issues at that time.” Accordingly, decided to attempt an identification, “then we’ll approach Your Honor not necessarily — that is not their strategy at this point,” and that if the State merely expressed t hat the “State ha[d] indicated to [him] that they — they’re raise a claim of unfair surprise at that pretrial conference; rather, his counsel chal lenging an identification prior to trial. We note that the defendant did not support a conclusion that the defendant was misled or precluded from sort of sense” from the victim that she could make an identification, does not not planning to seek an in - court identification unless the prosecutor got “some up at trial. We agree with the State that its “equivocal statement” that it was both parties informed the trial judge of the identification issue that might come defendant cites the transcript of the pretrial exchange in which counsel for argument misstates the record.” A s factual support for his argument, the defense that it did not intend to ask [the victim] to identify the defendant, the appeal relies on his representation that the State was absolute in advising the State’s correct observation that “to the degree the defendant’s argument on The defendant’s second basis for distinguishing King is counter ed by the

pretrial identification. inapposite because the State could have, but did not, arrange a nonsuggestive lineup.” Id. We simil arly reject the defendant’s contention here that King is inadmissible because the State could have arranged a pretrial corporeal “the defendant’s contention that the district court identification was trial.” King, 156 N.H. at p. 3 376 (quotation omitted). Thus, in King, we rejected simply does not have the right to a lineup, whether conducted before or during pretrial identification or explain why it had not done so, is that “[a] defendant first argument, based upon the State’s failure to procure a nonsuggestive arguments are preserved, we reject them. The s hort answer to the defendant’s supported by the record. Assuming without deciding that the defendant’s to raise them before the trial court and that they are not, in any event, The State counters that the defendant waived these arguments by failing

that the State decided to elicit an in - court identification.” opportunity to arrange a less suggestive method of identification had passed, He contends that “[i] t was only after [the victim] began her testimony, and the therefore, he did not mount a pretrial challenge to an in - court identification. [him] prior to trial that it did not intend to ask [the victim] to identify him” and, N.H. at p. 3 372. The defendant contends that here, b y contrast, “the State advised identification” and could have taken other pretria l measures. See King, 156 in - court identification. . ., he was a ble to file a pretrial motion to exclude the that because “King was aware, prior to trial, that the State would be seeking an to create a line - up that included [his] photo.” Second, the defendant asserts nonsuggestive identificati on . . . and offered no explanation for its decision not prior to trial in King, while “[h]ere, the State made no effort to secure a the defendant argue s, the State had attempted a nonsuggestive identification p. 4 4

developments surrounding identification evidence.” He notes that we The defendant argues that King should be overruled “in light of the legal

Quintero, 162 N.H. at 533 (q uotations and citation omitted). of stare decisis is not one to be either rigidly applied or blindly followed.” Id. at 153 - 5 p. 4 4. “[N]o single factor is wholly determinative because the doctrine

significant application or justification. come to be seen so differently, as to have robbed the old rule of abandoned doctrine; and ( p. 4 4) whether facts have so changed, or developed as to have left the old rule no more than a remnant of overruling; (3) whether related principles of law have so far reliance that woul d lend a special hardship to the consequences of practical workability; (2) whether the rule is subject to a kind of (1) whether the rule has proven to be intolerable simply in defying

factors inform our judgment, including: In determining whet her a holding has come to be seen as such an error, several was for that very reason doomed.” Duran, 158 N.H. at 153 (quotation omitted). whether the ruling has come to be seen so clearly as error that its enforcement question is not whether we would decide the issue differently de novo, but 532 (2011) (quotation omitted). “Thus, when asked to reconsider a holding, th e with arbitrary and unpredictable results.” State v. Quintero, 162 N.H. 526, revision in every case, deciding cases becomes a mere exercise of judicial will governed by the rule of law, for when governing legal s tandards are open to 1 p. 4 46, 153 (2008). “The doctrine of stare decisis demands respect in a society court.” “We do not lightly overrule a prior opinion.” State v. Duran, 158 N.H. Biggers factors when the State seeks to e licit a witness’s first identification in - In the alternative, t he defendant urges us to “overrule King and apply the

factors. in - court identification without first testing its reliability under the Biggers Accordingly, consistent with King, the trial court did not err in admitting the — “does not rise to the level of constitutional concern.” Id. at 376. procedure” — which the defendant in Ki ng characterized as a one - man showup omitted). We concluded that “[t]he inherent suggestiveness in the normal trial court identification is cross - examination and argument.” Id. at 376 (quotation identifications an d that the remedy for any alleged suggestiveness of an in majority of courts in concluding that Neil v. Biggers does not apply to in - court involved in pretrial and in - court identifications, we join [ed] the apparent [pretrial] confrontation.” Id. at 37 p. 4 4. “Based upon the different considerations a strictly in - court identification not preceded by an impermissibly suggestive In King, we addressed whether the “two - step [Biggers] analysis applies to

bases persuasive, and we conclude that King is controlling. we do not find the defendant’s attempt s t o factually distinguish King on these p. 5 5

legislature’s intent as expressed in the words of the statute matters of statutory interpretation, we are the final arbiter of the We review the trial court’s statutory interpretation de novo. In

State v. Mohamed, 1 p. 5 59 N.H. 559, 560 (2009). Resolution of this issue requires us to engage in statutory interpretation. Cf. not find, facts sufficient to elevate the offense from a class B to a class A felony. for a class A felony offense when the indictment did not allege, and the jury did The defendant next contends that the trial court erred in sentencing him

conclude that the trial court did not err in admitting the in - co urt identification. to overrule it. As we noted above, King controls this case and, accordingly, we Holmes, 1 p. 5 54 N.H. 723, 729 (2007) (quotation omitted), and we therefore decline decision in King “is no more than a remnant o f abandoned doctrine,” State v. We conclude that the defendant has failed to demonstrate that our

“involve some element of suggestion.” Perry, 132 S. Ct. at 727. eyewitness identifications” — and “[i]ndeed, all in - court identifications” — N.H. at 376, particularly given the Perry C ourt ’s acknowledge ment that “[m]ost procedure. . . does not rise to the level of constitutional concern,” King, 1 p. 5 56 conclusion in King that “[t]he inherent suggestiveness in . . . normal trial in the absence of improper state action). We read Perry as confirm ing our Biggers analysis does not apply to either in - court or out - of - court identification see also State v. Addison, 160 N.H. 792, 801 - 02 (2010) (holding that the allowing the jury to assess its creditwo rthiness.” Id. at 728 (emphasis added); process rule requiring a trial court to screen such evidence for reliability before evidence does not, without the taint of improper state conduct, warrant a due enforcement.” Id. at 730 (emphasis added). “The fallibility of eyewitness procured under unnecessarily suggestive circumstances arranged by law reliability of an eyewitness identification when the identification was not Process Clause does not require a preliminary judicial inquiry into the suggestive circumstances.” Perry, 132 S. Ct. at 725. It hel d that “the Due eyewitness evidence for reliability any time an identification is made under its identification decisions “support[] a rule requiring trial judges to prescreen here.” In Perry, the United States Supreme Court rejected the contention that identification evidence,” it “does not directly address the question presented conclud ing that while it “narrows the scope of the due process concern about The defendant also cites Perry v. New Hampshire, 132 S. Ct. 716 (2012),

we were “not persuaded by” its analysis. King, 1 p. 5 5 p. 6 6 N.H. at 377. decision in King, one of which we cited in King but declined to follow because fourteen cases he cites in support of applying Biggers, however, predate our have considered the issue, fewer support the King position.” Twelve of the that, “[o]f the federal circuit courts and state supreme courts that appear to courts have held that Biggers applies to in - court identifications” and asserts considered the opinions of other courts in King, b ut counters that “many 6

as a mitigating factor that a d efendant had to prove.” precedent, that the trial court “erred in treating the [voluntary release] element continued vitality of this line of cases. The defendant argues, in light of this other element of the crime”). We acknowledge this, but offer no opinion on the offense a class A felony] must be presented to the jury as would evidence of any physical or psychological injury [so as to make the accompanying kidnapping (concluding that “whether a [kidnapping and] rape victim has suffered serious felony set forth in RSA p. 6 633:1, II”); State v. Goodwin, 118 N.H. 862, 869 (1978) B felony of kidnapping as defined in RSA 633:1, I, and the elements of a class A of kidnapping only if the jury finds that the evidence establishes both the class N.H. 146, 154 (1985) (holding that “[a] defendant is guilty of the c lass A felony a defendant may be sentenced for a class A felony.” See State v. LaRose, 127 be proven by the State and found by the jury beyond a reasonable doubt before release s. . . without serious bodily injury,” id., factor as “an element that must RSA 633:1 (2007). The de fendant a sserts that our cases treat the “voluntarily

felony. and in a safe place prior to trial, in which case it is a class B voluntarily releases the victim without serious bodily injury II. Kidnapping is a class A felony unless the actor

. . . .

(d) Commit an offens e against him.

(c) Terrorize him or some other person; or

(b) Avoid apprehension by a law enforcement official; or

(a) Hold him for ransom or as a hostage; or

another under his control with a purpose to: I. A person is guilty of kidnapping if he knowingly confines

The kidnapping statute provides, in relevant part:

State v. Hayden, 158 N.H. 597, 599 (2009) (quotation omitted).

clear on its face. We do not consider legislative history to construe a statute that is statute in the context of the overall scheme and not in isolation. the legislature did not see fit to include. Further, we interpret a consider what the legislatu re might have said or add language that interpret legislative intent from the statute as written and will not we ascribe the plain and ordinary meaning to the word s used. We considered as a whole. When examining the language of a statute, p. 7 7

commit a crime and an overt act in furtherance of t he crime.” Johnson, 144 “An indictment charging an attempt must allege both an intent to

629:1, IV (200 p. 7 7). attempt is the same as that authorized for the crime that was attempted.” RSA RSA 629:1, I. With the exception of attempted murder, “[t]he penalty for

commission of the crime. be, is an act or omission constituting a substantial step toward the anything which, under the circumstances as he believes them to purpose that a crime be committed, he does or omits to do I. A person is guilty of an attempt to commit a crime if, with a

The attempt statute provides, in relevant part: and of itself.” State v. Johnson, 144 N.H. 1 p. 7 75, 178 (1999) (citation omitted). “Attemp t is an inchoate crime that is considered a substantive offense in

voluntarily releasing the victim without serious bodily injury.” We agree. to allege and prove in an attempted kidnapping the act — the element of an attempted kidnapping; in other words, it ruled that “the State does not need the context of a completed kidnapping — was not necessary in the context of factor or element — which the State conceded it had the burden to disprove in did not place the burden of proof on the defendant. Rather, it ruled that that Thus, while the court referred to voluntary release as a “mi tigating factor,” it

crime was a Class A felony. factors, because this is not a completed crime. The completed opportunity in that context to demonstrate the — the mitigating the defendant has committed a class A felony, and that there is no that the defendant has commi tted the elements in Paragraph [I], But in an attempted kidnapping, once the State has proven

the context of a completed kidnapping. m itigating factor that can reduce the offense from an A to a B, in releases the victim without serious bodily injury, that’s a the defendant gets cold feet and/or has a change of heart and injury. And at some point during the course of the kidnapping, if k eep, confine the victim indefinitely or to inflict serious bodily of the kidnapping, the defendant may very well have intended to voluntarily, without serious bodily injury; rather, at the beginning the beginning of the kidnapping to be — to release the victim a Class A felony. And it does not require the defendant’s intent at structured is it begins with the presumption that all kidnapping is [R]eading Paragraph [II] of the kidnapping statute, the way this is

The defendant misstates the trial court’s ruling. The court reasoned: p. 8 8

which specific [statutory variant] the defendant intended to com mit; it [is] commit the underlying crime, “jurors [are] not required to unanimously find statutory variants of an underlying crime are not elements of an attempt to 634 (emphasis added); cf. Ca sanova, 164 N.H. at 566 (holding that because substantial step toward the commission of that crime.” Glanville, 145 N.H. at purpose to commit armed robbery, (2) com mitted acts constituting a felony, [was for] the indictment . . . to allege that the defendant (1) with a required “[t]o charge the defendant with attempted armed robbery, class A Johnson, 14 4 N.H. at 17 p. 8 8. Indeed, Glanville recognized that all that was accurately set forth that variant in the indictment.” Bean, 153 N.H. at 384; s ee defendant with a specific variant of the crime allegedly attempted, but failed to although not required to do so under Johnson, attempted to charge the we noted in State v. Bean, 153 N.H. 380 (2006), “[i] n Glanville, the State, statute, must include the element that elevates the crime to a higher level.” A s “attempted crimes, for which there are varying levels of offense provided by Glanville did not hold, as the defendant asserts, that charg es alleging

Id. (citation omitted).

weapon.” armed with a BB gun “which reasonably appeared to be a deadly The indictment, however, alleged only that the defendant was “reasonab ly appeared to the victim to be. . . a deadly weapon.” which requires that the defendant be armed with an object that the defendant with a violation of paragraph (b) of RSA 636:1, III, undisputed that the State intended for the indictment to charge

Glanville, it was class B felony robbery to class A felony robbery. Glanville, 145 N.H. at 634. In allege d the element with which the State sought to e levate the offense from the class A felony of attempted armed robbery” whe n the indictment improperly which we held that “[t]he i ndictment did not properly charge the defendant with class B felony kidnapping. He cites State v. Glanville, 145 N.H. 631 (200 0), in and proven to differentiate attempted class A felony kidnapping from attempted The defendant nevertheless contends that the element must be alleged

indictment for th e latter offense. attempted kidnapping and need not, for that reason, be alleged in an felony level kidnapping — the intended crime — it is not an element of 17 p. 8 8. Thus, even if the absence of voluntary release is an element of a class A of the intended offense as if it had been carried out.” Johnson, 144 N.H. at completed, the State could not plead, factually identify, and prove the elements N.H. 563, 565 (2013). “Since an attempted crime is by definition a crime not plead and prove the elements of the intended offense.” State v. Ca sanova, 16 4 the State to identify the intended offense but does not require the State to N.H. at 178 (quotation and brackets omitted). “The attempt statute requires p. 9 9

DAL I ANIS, C. J., and CO NBOY, LYNN, and BASSETT, JJ., concurred.

deemed waived. See Casanova, 164 N.H. at 56 p. 9 9. 870. Issues raised in the defendant’s notice of appeal but not briefed are class B felony standards, cf. LaRose, 127 N.H. at 155; Goodwin, 118 N.H. at conviction, vacate his sentence, and remand for sentencing consistent with For the foregoing reasons, we affirm the defendant’s kidnapping

persuasive and decline to follow them. conduct that defendant must prove). Accordingly, we do not find these cases State, 257 P.3d 2 p. 9 9, 3 8 (Wyo. 2011) (stating release of victim is mitigating an affirmative defense that defendant must raise and prove); and Rathbun v. Alexander, 871 A.2d 972, 975 (Vt. 2005) (noting voluntary release of victim is to class 2 if the victim is not voluntarily and safely released”); State v. a class 4 felony by reason of the two - step incentive reduction . . . and is rai sed (rejecting as “erroneous” the “implication . . . that kidnapping is presumptively defense”), Rainwater v. State, 943 P.2d 727, 728 (Ariz. 1997) (en banc) 428 (Alaska Ct. App. 1985) (noting release of victim is a “partial affirmative State. Compare LaRose, 127 N.H. at 154, with Laraby v. State, 710 P.2d 427, to voluntarily release the victim unharmed as an element to be proven by the different from ours, in that we, unl ike those jurisdiction s, have treated failure by the State, however, were decided under legal or statutory frameworks sentenced, under the more severe statutory penalty provision.” The cases cited a defendant convicted of attempted kidnapping is guilty, and may be interpreting kidnapping statutes similar to New Hampshire’s, have agreed that advanced by the defendant in this appeal, and which have been tasked with T he State contends that “jurisdictions that have considered the argument

felony level offense.” that we “must reverse [his] sentence and remand for resentencing on a clas s B to supporting a conviction for class B attempted kidnapping; in fact, he argues challenge the sufficiency of either the indictment or the evidence with respect class A felony attempted kidnapping. We note that t he defendant does not We therefore conclude that i t was insufficient to charge the defendant with defendant acted with a purpose that the crime of kidnapp ing be committed. felony. The indictment, however, did neither. Rather, it simply alleged that the element that would have made the underlying crime, if completed, a class A the defendant attempt ed to commit class A felony kidnapping, or alleged the Accordingly, the indictment in this case could have either alleged that

commit [any of the applicable statutory] variant[s]”). sufficient that they unanimously conclude[] that the defendant intended to