State v. Gonzales, 79-197
| Decision Date | 17 December 1980 |
| Docket Number | No. 79-197,79-197 |
| Citation | 423 A.2d 608,120 N.H. 805 |
| Parties | The STATE of New Hampshire v. Freddy Jose GONZALES. |
| Court | New Hampshire Supreme Court |
Gregory H. Smith, Acting Atty. Gen. (Paul W. Hodes, Asst. Atty. Gen., attorney, orally), for the State.
Kelliher, Clougherty & Dalpra, Manchester (Thomas W. Kelliher, Manchester, orally), for defendant.
This is an appeal from the defendant's conviction by a jury on two counts of aggravated felonious sexual assault (RSA 632-A:2 (Supp.1979)) and two counts of class B kidnapping (RSA 633:1). Prior to the trial, the defendant filed a motion to suppress any in-court identification of the defendant by the two victims on the ground that the out-of-court identification procedure employed by the police was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. See Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Leclair, 118 N.H. 214, 218-19, 385 A.2d 831, 833 (1978). The Superior Court (Souter, J.) granted the defendant's motion as to one victim but denied it as to the other. On this appeal, the only issue before us is the reliability of the out-of-court identification. We affirm.
On the night of October 25, 1978, two teen-age girls entered their van, which was parked at Bradlee's parking lot in Manchester, and proceeded to drive away. As they pulled out of the parking lot a man, who was waiting in the back of the van, stepped forward and told the girls "Don't turn around." The girl driving the van, whose identification of the defendant is the subject of this appeal, did, however, turn around when the man spoke. During the next twenty to twenty-five minutes, the man directed the girl where to drive. While she was being directed where to drive, she turned around and looked at the man "a lot of different times" while making lane changes and talking to the man, who was seated only a foot-and-a-half to two feet from her. Although it was dark at that hour, the interior of the van, which had windows all around it, was lighted from street lights. While the van was on Elm Street, the main street in Manchester, the lighting was particularly good. The man made some effort to mask himself by pulling his sweater over his head in such fashion as to cover his hair but not his face; as a result the man's face was exposed for ninety per cent of the time and enough of his hair was visible in order for the driver to determine that it was "fuzzy" hair.
Finally, after driving around for some twenty minutes, the driver was directed to stop at a remote location. For the next forty-five minutes to an hour, the van remained at that location, during which time both girls were sexually assaulted by the man who commandeered their van. While the van was parked at that location, the driver had other occasions to view the man's face. After the assault took place, the man tied up the girls, removed them from the van, took the van and left the girls at that location.
The next day, less than twenty-four hours after the assault, the girl who was driving the van went to the Manchester police station and reported the incident. She initially described her assailant as being a black or Puerto Rican male with a light complexion, about seventeen years old, thin build and dark hair.
Later that day, October 26, 1978, a police officer handed this victim a stack of photographs, seventeen in all, and asked her if she could identify any of them as being her assailant. She examined the photographs one at a time by flipping them over in a stack. When she reached the fifth photograph, a profile shot, she indicated that it looked like the man but continued examining the photographs. When she came to the twelfth photograph, a full-face shot, she stopped without hesitation and identified it as a picture of her assailant. Both photographs, numbers five and twelve, were of the defendant, Freddy Gonzales. Only the defendant appeared twice in the photographic array, and he was the only one that appeared in a profile shot.
Three weeks later, on November 17, 1978, the police conducted a corporeal line-up consisting of six persons, one of whom was the defendant. Except for the defendant, none of the individuals who appeared in the corporeal lineup had appeared in the photographic array. Both the assistant county attorney and counsel for the defendant were present at the line-up. At the...
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State v. Perron
...(4) the witness' level of certainty; and (5) the time between the crime and the confrontation. See e.g., State v. Gonzales, 120 N.H. 805, 807-08, 423 A.2d 608, 610 (1980); State v. Heald, 120 N.H. 319, 322, 414 A.2d 1288, 1290-91 (1980); State v. Gullick, 120 N.H. 99, 101-02, 411 A.2d 1113,......
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State v. Preston, 81-088
...when suggestive police procedures have been used. Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382; see State v. Gonzales, 120 N.H. 805, 807-08, 423 A.2d 608, 610 (1980) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977)). In the present case, th......
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State v. Cyr
...process. First, we must inquire whether the identification procedure was unnecessarily suggestive. See State v. Gonzales, 120 N.H. 805, 807-08, 423 A.2d 608, 609-10 (1980); State v. Heald, 120 N.H. 319, 322, 414 A.2d 1288, 1290 (1980); see also Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.C......
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State v. Howe, 85-564
...twice before the incident. She then spent two hours, during daylight, in close proximity to the defendant. In State v. Gonzales, 120 N.H. 805, 806-08, 423 A.2d 608, 609-610 (1980), we upheld an identification's reliability where the victim had approximately one hour to view the defendant at......