State v. Duff

• Decision Date: 09 October 1987
• Docket Number: No. 86-084,86-084
• Citation: 129 N.H. 731,532 A.2d 1381
• Parties: The STATE of New Hampshire v. Robert DUFF.
• Court: New Hampshire Supreme Court

Page 1381

532 A.2d 1381

129 N.H. 731

The STATE of New Hampshire v. Robert DUFF.

No. 86-084.

Supreme Court of New Hampshire.

Oct. 9, 1987.

Stephen E. Merrill, Atty. Gen. (Robert B. Muh, Asst. Atty. Gen., on brief), for State.

James E. Duggan, Appellate Defender, Concord, for defendant.

Robert Duff, pro se.

THAYER, Justice.

The defendant was convicted after a jury trial of five counts of aggravated felonious sexual assault and one count of kidnapping, RSA 632-A:2 and RSA 633:1. The defendant challenges his convictions on the basis that the Trial Court (Wyman, J.) erred in (1) denying the defendant's motion to suppress an out-of-court identification as the product of an unnecessarily suggestive photographic identification array, and (2) permitting evidence of the defendant's threats and acts of violence against the defendant's alibi witness to be introduced at trial. The defendant in his pro se brief also alleges that the trial court erred in permitting the prosecution to recall a witness in order to perform an in-court identification of the defendant; that the prosecution engaged in misconduct; and that the defendant suffered from ineffective assistance of counsel. For the reasons that follow, we affirm the convictions.

The female victim was a sixteen-year-old high-school student at time of the kidnapping and rape. After school on April 15, 1985, she was walking from her grandmother's house in Milford to the McDonald's on Elm Street. Before reaching McDonald's, a man in a blue truck pulled up beside her and asked her for directions to Main Street in Milford. The victim told him he could probably get better directions at her grandmother's store in Milford. She then continued on her journey to McDonald's, where she purchased some food. While the victim was walking back to her grandmother's house, she saw the man she had spoken to earlier standing outside the blue truck. As she walked past him, he grabbed her from behind and said: "I'll blow your brains out if you don't get in the truck." The victim got into the truck. The victim testified at trial that the abduction occurred at approximately 6:00 p.m.

Once the two were in the truck, the man drove from the scene at high speed. He punched the victim twice in the face, and then forced her to perform fellatio on him. The man drove into a wooded area and proceeded to force the victim to submit to two acts of vaginal intercourse and one act of anal intercourse, and to perform another act of fellatio. The man then dropped her off by her aunt's house at approximately 7:25 p.m. The victim gave her aunt a brief description of the rapist. The aunt then summoned the victim's parents, who in turn took the victim to the Milford police station, where she gave a description of her assailant and his truck. The victim was then taken to the local hospital.

Police officers began an immediate search for a man and vehicle matching the description the victim had given them. At about 8:20 p.m., Milford Police Sergeant Dowd discovered a truck matching the victim's description parked outside 41 West Street in Milford. Officer Dowd radioed for assistance, and another police officer responded. The officers knocked on the door and were allowed entry by the owner. Once inside the apartment, the officers saw four men, one of whom matched the victim's description of her assailant. That man was the defendant, Robert Duff. They asked Duff to step outside, advised him of his Miranda rights, and asked him to come to the station for questioning. Once at the station, Duff denied any involvement in the rape committed earlier that evening. "How could I have raped somebody at McDonald's," Duff protested, before anyone had informed Duff that McDonald's was the scene of the abduction. At that point, Duff was arrested.

Detective Conti of the Milford Police Department assembled a photo lineup that consisted of a photograph of the defendant and five other photographs. The five other photos were from the Milford police files, four of these being "mug shots" of uniform background. The fifth was of an indeterminate background. The defendant's photograph had been taken two months earlier at the Hillsborough County House of Correction. The background in this photo was an wire-mesh fence. This photo array was displayed to the victim shortly after midnight, or roughly six hours after the incidents commenced. The victim identified a photograph of the defendant as depicting the man who had raped her.

At trial, the defendant testified that he had spent the day of the assault at the home of one Pamela Mason, and left there about 6:00 p.m. He then went to the home of his girl friend, Elsie Frost. he claimed he stayed at Frost's house until 7:00 p.m. Elsie Frost testified that the defendant had come to her house in Nashua at 6:05 p.m., and had stayed there until 6:45 p.m. On cross-examination, the prosecution elicited testimony from Frost that in 1979 and 1980 the defendant had verbally and physically abused and threatened her.

Two briefs on behalf of the defendant were submitted in this appeal. The first brief was submitted by the public appellate defender. The defendant then filed a pro se brief. We shall answer the arguments of the appellate defender first, and then proceed to the arguments made by the defendant's pro se brief to the extent that those arguments are not addressed in the appellate defender's brief.

The appellate defender's first argument is that the trial court erred in admitting evidence of the defendant's violent behavior toward a defense witness that occurred five and six years before the trial. The defense argues that New Hampshire Rule of Evidence 404(b) excludes evidence of prior bad acts to show the character of an individual in order to demonstrate that that person acted in conformity therewith. The defendant also asserts that the danger of unfair prejudice outweighed any probative value.

Decisions on the admissibility of evidence rest with the sound discretion of the trial court. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...." N.H.R.Ev. 103(b); cf. State v. Hotchkiss, 129 N.H. 260, ----, 525 A.2d 270, 272 (1987). At trial, the prosecutor claimed that the defendant's previous threats and acts of violence against the defense witness were relevant on the issue of the defense witness' credibility as an alibi witness. New Hampshire Rule of Evidence 611(b) provides that:

"(b) Scope of cross-examination.--A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination."

(Emphasis added.) The defendant's threats and physical abuse of the defense alibi witness were highly relevant to the alibi witness' credibility. This history of abuse could reasonably have led the alibi witness to corroborate Duff's story for fear of future harmful harassment from him. Consequently, this abuse was probative of the witness' interest in testifying falsely. See, e.g., Wells v. State, 559 P.2d 445, 450 (Okla.Cr.1977) (it was proper and useful for State on cross-examination to inquire into matters which tested alibi witness' bias, prejudice, or interest in the case).

The fact that these abusive instances occurred five years before the trial could arguably have detracted...