State v. Manna, 87-081

• Decision Date: 29 January 1988
• Docket Number: No. 87-081,87-081
• Citation: 539 A.2d 284,130 N.H. 306
• Parties: The STATE of New Hampshire v. Richard MANNA.
• Court: New Hampshire Supreme Court

Page 284

539 A.2d 284

130 N.H. 306

The STATE of New Hampshire v. Richard MANNA.

No. 87-081.

Supreme Court of New Hampshire.

Jan. 29, 1988.

Stephen E. Merrill, Atty. Gen. (John S. Davis, attorney, on the brief), by brief for the State.

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

JOHNSON, Justice.

The defendant appeals his three misdemeanor convictions for operating a motor vehicle after his license to operate had been suspended and his misdemeanor conviction for disobeying an officer by giving the officer a false name and address while in charge of a vehicle. The defendant contends that the Trial Court (Dalianis, J.) erred (1) in consolidating the four charges for a single trial and (2) in failing to suppress a police officer's out-of-court and in-court identifications of the defendant because the officer examined a single police file photograph of the defendant in the course of his investigation of the case. Finding no error, we affirm.

The four offenses charged arose out of three separate incidents. The first occurred on November 24, 1985, when Nashua police officer Neal Casale saw a car go by with an expired inspection sticker. The officer stopped the vehicle, which had a male and female seated inside, and asked the driver his name and address. The driver responded that his name was Michael H. Manna and that he lived at 4 Jo Ellen Drive in Merrimack and did not have a New Hampshire license in his possession. The officer radioed for a license check from his police cruiser, which revealed that Michael H. Manna did not have a New Hampshire driver's license. The officer then gave the driver a summons for operating without a license and the passenger, who owned the vehicle, a summons for the use of an uninspected vehicle.

Just before Christmas, in 1985, a man who identified himself as Michael Manna left a telephone message for Officer Casale, who returned the call. Michael Manna stated that he had been sent a notice from the Nashua District Court for failure to appear to respond to a summons; but he claimed he had never received a summons from Officer Casale and that he had not committed the alleged offense on November 24, 1985.

A meeting between the two men was arranged on December 27, 1985. When they met, Officer Casale immediately recognized that Michael Manna, the person with whom he was meeting, was not the same person he had arrested on November 24, 1985. Michael Manna told Officer Casale that he believed his brother Richard was the driver, since Richard had in the past held himself out to the police to be Michael Manna when he had been stopped for operating a vehicle while his license was suspended.

Officer Casale then requested a license check for Richard Manna and found that Richard's license to operate had also been suspended. Hence if Richard had, in fact, been the driver on November 24, 1985, he would have been operating a motor vehicle after suspension. Officer Casale then located a 1984 photograph of the defendant from the Nashua police files and recognized the person in the photograph to be the defendant, Richard Manna. The defendant was then charged with driving after suspension and with disobeying a police officer by giving a false name and address.

The next incident involving the defendant occurred on January 30, 1986. Nashua police officer Jamie Provencher stopped a vehicle because of erratic operation at 2:48 a.m. The vehicle was being operated by a male, with a female passenger. On this occasion the defendant gave his real name and date of birth. The officer checked the status of the defendant's license and learned that his license to operate had been suspended. The defendant was subsequently arrested and charged with driving after suspension.

The third incident involving the defendant occurred on March 4, 1986, when Nashua police officer Thomas Ravanelle, who was operating a radar post, noted a man whose head "almost hit the ceiling of the car" because of his height, with a passenger, driving a speeding vehicle. The officer followed the car until it stopped at a parking lot, whereupon the heads of both parties disappeared. The officer could, however, see what he thought were "parts of bodies coming up over the seat a few inches." When the officer approached the car, the defendant, who the officer estimated to be "six foot five," was in the passenger's seat. His wife, Maureen, who the officer estimated to be "four feet ten inches tall," was in the driver's seat. The officer concluded that the parties had changed seats. He asked the defendant his name and date of birth because he believed the tall male was the operator "when [he] had clocked [the car] on radar." Once again, a license check revealed that the defendant's license had been suspended, and he was charged with driving after suspension.

The defendant moved to sever the three driving-after-suspension cases. The motion was denied, and the four misdemeanor cases were tried together. The defendant's motion to suppress the identification by Officer Casale was also denied.

The defendant first claims that the trial court abused its discretion in refusing to sever the cases. This court's applicable standard of review is that "the resolution of consolidation questions lies within the sound discretion of the trial court and ... in the absence of a showing of an abuse of this discretion, its ruling will not be disturbed on appeal." State v. Cote, 129 N.H. 358, 367, 530 A.2d 775, 779-80 (1987) (permitting consolidation of a felony and seven misdemeanor sexual assault charges for offenses occurring on two separate days in two different towns). In deciding whether there has been an abuse of discretion, the vital question is "whether the defendant's right to a fair trial was jeopardized by non-severance." State v. Winders, 127 N.H. 471, 473, 503 A.2d 798, 799 (1985). The facts of this case are not unlike those in State v. Cote, where we held that severance was not required where the evidence in support of each offense was brief, simple and unlikely to confuse a jury and easily referable to each crime.

The jury could easily examine and weigh the evidence in each case without risk of confusion since the charges arose out of three distinct incidents, each involving a particular date and a particular officer. The State's evidence consisted of the direct testimony of the three officers involved and of the defendant's brother. The State also introduced the defendant's photograph and two documents.

The defendant argues that charges should be consolidated for trial only when they are "related or apparently part of a common scheme or plan," State v. Freije, 109 N.H. 290, 291, 249 A.2d 683, 684 (1969). He contends that the charges here are unrelated and are not part of a common scheme or plan. The defendant's argument fails because the need for cases to be related or apparently part of a common scheme are simply instances when it would be apparent that consolidation of cases would be desirable. See id. at 291, 249 A.2d at 684. In State v. Whitney, 125 N.H. 636, 639, 484 A.2d 1158, 1160 (1984), we held that, "[t]he decision to join or sever cases for trial is within the discretion of the trial court. The trial court's ruling will be upheld unless it is shown that the defendant's right to a fair trial was jeopardized." (Citations omitted.) This test determines if consolidation is proper; the test is not that the several crimes are related or part of a common scheme or plan.

In this case, it should be noted, the...