State v. Allen, 88-034

• Decision Date: 09 July 1990
• Docket Number: No. 88-034,88-034
• Citation: 577 A.2d 801,133 N.H. 306
• Parties: The STATE of New Hampshire v. Daniel ALLEN.
• Court: New Hampshire Supreme Court

Page 801

577 A.2d 801

133 N.H. 306

The STATE of New Hampshire v. Daniel ALLEN.

No. 88-034.

Supreme Court of New Hampshire.

July 9, 1990.

John P. Arnold, Atty. Gen. (John S. Davis, Asst. Atty. Gen., on the brief and orally), for State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, by brief and orally, for defendant.

PER CURIAM.

The defendant was convicted after a jury trial in Superior Court (Gray, J.) on one count of aggravated felonious sexual assault, one count of attempted aggravated sexual assault and one count of second degree assault in violation of RSA 632-A:2, RSA 629:1 and RSA 631:2, respectively, for which he received three consecutive sentences in the State Prison, two for 7 1/2 to 15 years, and one for 3 1/2 to 7 years. On appeal, the defendant alleges that the trial court erred in denying his motion to suppress the victim's in-court identification of him on the basis of two pre-trial comments made by a victim-witness assistant to the victim about the defendant's appearance. We affirm.

It is undisputed that on the morning of August 1, 1986, the victim, a nineteen-year-old woman who was working at a construction site in Deerfield, was physically and sexually assaulted in the basement of the house that was under construction. She passed out during the assault, and upon regaining consciousness, fled to a neighboring house, where she remained in a daze until transported to a hospital by the neighbor and the Deerfield police chief.

After being released from the hospital on August 1, the victim went to the Candia police station where she gave a tape-recorded statement about the attack that morning. She then met with Sergeant Hureau at the Deerfield police station, where she helped create a composite sketch of her assailant. She described her attacker as a "white man [with] pale skin ... dark brown hair, ... thick and feathered, unshaved ..., very wide, long shoulders and arms, very slender.... His eyes appeared to be sunken into his head...." At trial, Sergeant Hureau testified that he believed the victim's description of her assailant was "very similar" to the defendant's appearance.

In the months following the attack, the police investigation yielded little. In December of 1986, Chief Harbison of the Deerfield police force went down to Haverhill, Massachusetts, to pick up the defendant and bring him back to New Hampshire on charges unrelated to the assault on the victim in this case. When the defendant found out that Chief Harbison was from Deerfield, he asked if the Chief "was there to take him back to Deerfield for the rape." On December 16, 1986, Sergeant Hureau interviewed the defendant in New Hampshire. The defendant admitted during this interview that he had been on a job site in Deerfield on August 1, 1986, but he denied committing the assault.

On December 18, 1986, Sergeant Hureau arranged for the victim to view a photo line-up that contained the defendant's picture. The line-up consisted of two photographs of each of eight men (frontal and profile), sixteen photos in all. Hureau testified that the victim appeared nervous and apprehensive about viewing the line-up. After looking at the photographs, the victim told Hureau she could not identify anyone. She later told him that the man who had assaulted her was in the line-up, but that she had been too upset on December 18 and "couldn't bring herself to say" who the assailant was.

On March 23, 1987, after seeing a man in February who reminded her of the man who had attacked her, the victim called Sergeant Hureau and asked to look at the photo line-up again. She viewed the photo array for a second time on March 30, 1987, at which time the line-up consisted of the same sixteen photographs from the first line-up, together with two photos each of eight additional men. Hureau testified that the victim examined the line-up for four or five minutes before she identified the photos of the defendant and said, "It's him." When she was asked whether the suspect looked different when the crime occurred than he did in the photographs, the victim answered that at the time of the assault he did not have a moustache and had "more of a beard or facial growth," and that his hair "looked more greased back" in the photo. She also said that she remembered his Adam's apple. In June, 1987, the defendant was charged with committing the crimes of aggravated felonious sexual assault, attempted aggravated felonious sexual assault and second degree assault.

On October 19, 1987, the victim went to the Rockingham County courthouse to meet with her victim-witness advocate, Kathy Berry. The defendant happened to be in the same courthouse on that day for a bail hearing. The victim testified that she did not see the defendant on October 19. In fact, she testified that she had not seen the defendant either in person or in a photograph since viewing the second line-up on March 30, 1987. Ms. Berry, however, attended the defendant's bail hearing, and according to the victim, told her later that "[h]e was sleazy looking" and that "he fit the description that [the victim] had given" of the perpetrator. When the victim was questioned about whether she asked Ms. Berry any specific questions, she responded, "No, because I know what he looks like and I don't need to hear it from someone else."

On November 23, 1987, the defendant moved to exclude all testimony by the victim regarding any in-court and out-of-court identifications of the defendant. The sole basis for this motion was that Ms. Berry had acted improperly in commenting to the victim that the defendant was "sleazy looking" and "fit the description" of the assailant that the victim had given to the police. The defendant stated in his motion that Ms. Berry's conduct "fundamentally and irreparably compromises the reliability of [the victim's] identification of Mr. Allen ... [so as to] violate [ ] the defendant's right to fair trial and due process of law under part I, article 15 of the New Hampshire Constitution; and the Fourteenth Amendment of the United States Constitution." The trial court heard the defendant's motion on November 24, 1987, and denied the motion that same day. By order dated November 30, 1987, the trial court ruled that while Ms. Berry's conduct was "somewhat inappropriate, [it] did not taint any past or future identification since the statement was not made while the defendant was within sight of the victim and the testimony was that the victim at no time on October 19, 1987, saw the defendant at all." During trial on December 2, 1987, the victim identified the defendant as the man who attacked her on August 1, 1986.

While the defendant argued in his motion that testimony concerning both in-court and out-of-court identifications should be excluded at trial, he limits his appeal to the argument that the trial court erred in permitting the victim to make an in-court identification of him. Specifically, the defendant alleges that comments made to the victim by Ms. Berry were "so unnecessarily suggestive so as 'to give rise to a very substantial likelihood of irreparable misidentification.' "

The defendant alleged in his motion that allowing the victim to make an in-court identification of him would violate his rights under both the State and Federal Constitutions. In denying the defendant's motion, the trial court did not indicate whether its decision was based on the State or the Federal Constitution, or on both. On appeal, the defendant again cites both the State and Federal Constitutions in support of his claim. He relies on State and federal cases that interpret only the Federal Constitution, however, in arguing that the in-court identification should not have been permitted; and he does not present any argument or analysis concerning how the State Constitution should be interpreted to provide him with relief. Nonetheless, it is not the policy of this State to require a defendant to develop such a State analysis in order to preserve his State constitutional claim. See State v. Bradberry, 129 N.H. 68, 71-72, 522 A.2d 1380, 1381-82 (1986). But see id. at 81-83, 522 A.2d at 1387-89 (Souter, J., concurring specially). Thus, the defendant has properly preserved both his State and federal claims of a due process violation, and we will address his State constitutional argument first. State v. Fowler, 132 N.H. 540, ----, 567 A.2d 557, 559-60 (1989).

The defendant takes the position that in challenging an identification procedure under part I, article 15 of the New Hampshire Constitution, he has the initial burden of establishing that the out-of-court conduct of which he...