State v. Nightingale
| Decision Date | 29 June 2021 |
| Docket Number | AROCD-CR-19-40973 |
| Parties | STATE OF MAINE, v. BOBBY NIGHTINGALE, Defendant |
| Court | Maine Superior Court |
Defendant has been charged by way of an eight-count indictment with:
Before the court is Defendant's Motion to Suppress dated November 24, 2020. A hearing on the motion was conducted at the Caribou Superior Court on June 21, 2021. Defendant participated remotely by Zoom with one of his attorneys, Robert Ruffner, Esq., participating by Zoom and his other attorney, John Tebbetts, Esq., participating in person. The State was represented by Assistant Attorney General Leanne Robbin and Assistant Attorney General Megan Elam. The court received testimony from Jonathan St. Peter. At the commencement of the hearing, Defendant made clear that by way of his motion, the Defendant's request for suppression was limited to the identification of the Defendant by Jonathan St. Peter.
On the night of August 5, 2019, Jonathan St. Peter (hereinafter "St. Peter") was at his home when he encountered a masked man coming up the stairs to his apartment. The intruder's head and face were partially covered with a balaclava. Approximately a three (3) inch band across the intruder's face around his eyes was visible to St. Peter. The intruder backed St. Peter into his bedroom and the two engaged in a struggle. The struggle lasted for approximately ten (10) minutes. St. Peter and the intruder were "toe to toe" and "chest to chest" during the struggle. The intruder had a firearm. During the struggle, the intruder discharged the firearm. After the firearm was discharged, the intruder hit St. Peter in the head with the firearm and thereafter left the apartment.
St. Peter immediately called 911 and law enforcement officers were dispatched to the apartment. The officers were in St. Peter's home for approximately an hour and interviewed him in his bedroom. St. Peter could not positively identify the intruder at the time of the interview. At some point during the time the officers were in St. Peter's bedroom, one of the officers was speaking to another officer and said that "it sounds like Bobby Nightingale." This was not a statement to St. Peter but it was uttered in St. Peter's presence. The officers never asked St. Peter about "Bobby Nightingale" or referenced "Bobby Nightingale" in any other way.
The day following the encounter and police interview, St. Peter made a few phone calls to unknown third parties. Following those phone calls, St. Peter logged on to Facebook and searched for Bobby Nightingale. Upon viewing the photographs on Facebook, St. Peter positively identified the Defendant as the intruder. St. Peter was "100%" confident that the intruder was the Defendant, "without a doubt."
St. Peter was never shown a photograph of the Defendant or anyone else for identification purposes by law enforcement officers. The officers never suggested in any way that St. Peter search Facebook or any other database to identify the intruder.
When a court is presented with a challenge to the admission of an out-of-court identification under the due process clause, the following two-step test must be met:
State of Maine v. Nigro, 2011 ME 81, ¶ 21, 24 A.3d 1283 (citations omitted)(quotation marks omitted).
Focusing on the first prong, a defendant can meet his burden by proving by a preponderance of the evidence that the suggestive identification procedure, as precipitated by "improper state conduct", "tended to increase the likelihood of misidentification." State v. Davis, 2018 ME 116, ¶ 18, 191 A.3d 1152 (citing State v. Kelly, 2000 ME 107, ¶¶19-20, 752 A.2d 188). As noted by the Law Court in Davis:
"We have explained that "[a]mong the most suspect of all procedures is a confrontation in which a single subject is presented to the witness [by the State] in such a way that the witness knows that the police believe that subject to be the perpetrator of the crime." True, 464 A.2d at 950. The danger of such a suggestive identification procedure "is that the witness, eager to cooperate with the police . . . will subtly alter his or her own recollected image of the perpetrator's appearance and other characteristics to match those of the suspect presented." State v. Davis, 2018 ME 116, ¶18, 191 A.3d 1147, 1152-1153.
Here, the officers did not show the witness a photograph of the Defendant at any time. The officers did not even ask St. Peter about the Defendant and further did not suggest that St. Peter do anything to ascertain the identity of the intruder. The officers did not employ any identification procedure. St. Peter took it upon himself to check Facebook to try to identify the intruder. Unlike Davis, the photograph in this matter was from a Facebook page, not a booking photograph that shows an individual in police custody. The court finds that the Defendant has failed to show that the officers arranged or otherwise directly influenced the witness's identification in a suggestive way, therefore the court finds he has failed to show "improper state conduct." Id. at ¶21(citing Perry v. New Hampshire, 565 U.S. 228, 245 (2012).
While there was not improper state conduct, there was conduct by one officer that was suggestive. The statement of one officer to another officer that it "sounds like Bobby Nightingale", clearly reflected that the speaker thought that the Defendant was a good suspect. See, State v. St. Onge, 392 A.2d 47, 50 (Me. 1978). Although this statement was not intended to be to St. Peter, St. Peter heard the statement and understood that the particular officer opined that the Defendant might be the suspect. Therefore, the court now proceeds to assess whether the identification of the Defendant is still reliable despite the suggestive nature of the comment that preceded the identification by St. Peter.
Here, St. Peter was locked in combat with an armed intruder to his home for approximately ten (10) minutes. The encounter was dire immediately and the court finds this to be a tremendous amount of time for St. Peter to be struggling "toe to toe" and "chest to chest" with an armed intruder in his home. Even with the intruder's face partially concealed by the balaclava, St. Peter had more than ample time to view the unconcealed portions of the intruder's face, including the three-inch section around the intruder's eyes. The identification was the day after the incident, while it would have remained sharp in St. Peter's mind. His level of confidence in the identification was exceptional. St. Peter is "100%" sure it was the Defendant and he has "no doubt" that the Defendant was the intruder he fought with that night. The court finds by clear and convincing evidence that the State has shown that the reliability of the identification outweighs the corruptive influence of the suggestive comment and is therefore nevertheless reliable. State v. Nigro, 2011 ME 81, ¶ 23, 24 A.3d 1283.
Accordingly, based on the above findings of fact and conclusions of law, it is hereby ORDERED that Defendant's Motion to Suppress is DENIED.
Defendant has been charged by way of an eight-count indictment with:
Before the court is Defendant's Motion to Sever dated November 24, 2020. A nontestimonial hearing on the motion was conducted at the Caribou Superior Court on June 21, 2021. Defendant participated remotely by Zoom with one of his attorneys, Robert Ruffner, Esq.z participating by Zoom and bis other attorney, John Tebbetts, Esq., participating in person. The State was represented by Assistant Attorney General Leanne Robbin and Assistant Attorney General Megan Elam.
Defendant contends that the counts in the indictment reflect three separate criminal episodes. He therefore seeks separate trials on Counts I, II, and III; Counts IV and V; and VI, VII and VIII. The Defendant concedes that possession of a gun and common witnesses link these three groups of charges, but contends there is a lack of evidence that the gun that was allegedly used in each criminal episode was the same. The State contends that joinder is appropriate as a much of the...
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