State v. Perri

• Decision Date: 07 December 2012
• Docket Number: No. 2010–816.,2010–816.
• Citation: 164 N.H. 400,58 A.3d 627
• Parties: The STATE of New Hampshire v. Timothy PERRI
• Court: New Hampshire Supreme Court

164 N.H. 400

58 A.3d 627

The STATE of New Hampshire

v.Timothy PERRI

No. 2010–816.

Supreme Court of New Hampshire.

Argued: Sept. 12, 2012.

Opinion Issued: Dec. 7, 2012.

As Modified on Denial of Reconsideration Jan. 10, 2013.

As Modified April 2, 2013.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Lisa L. Wolford, assistant appellate defender, of Concord, on the brief, and Christopher M. Johnson, chief appellate defender, of Concord, orally, for the defendant.

HICKS, J.

The defendant, Timothy Perri, appeals his convictions for kidnapping, see RSA 633:1, I(d) (2007), aggravated felonious sexual assault, see RSA 632–A:2, I(a) (2007), attempted aggravated felonious sexual assault, see RSA 629:1 (2007); RSA 632–A:2, I(a), and criminal threatening,see RSA 631:4, I(a), II(a)(2) (2007). He argues that the Superior Court (Houran, J.) erred in: (1) denying his motion to suppress eyewitness identification evidence; (2) limiting his ability to cross-examine the victim; and (3) allowing the admission of evidence of a pocket knife discovered on his person when apprehended by the police. We affirm.

I

The following facts are drawn from the trial court's order denying the defendant's motion to suppress. N.R., the victim, told police that she had been walking home from work late on the evening of August 22, 2008, along Route 16 in North Conway when a man approached her and proposed to pay her for a sexual act. She said the man told her he was from out of town and worked as a painter in the area. She rebuffed him and walked alone for about a mile, but the man approached her again near a scenic overlook and once more made a sexual advance. After she rejected him, he punched her in the face, pulled her into the woods, and raped her. She described her attacker as a white man in his late twenties or early thirties, with a thin, muscular build, a narrow face, and a goatee.

After receiving another report on September 18 of a sexual assault occurring in the same area, the police issued a "be on the lookout" alert for the man N.R. had described. The defendant was apprehended several days later when State Trooper Craig McGinley saw him walking near the scenic overlook and, after speaking with him, identified several characteristics that matched the description given by N.R. The police assembled a photographic array displaying the defendant and seven other men selected from the police department's computer system and, on September 25, presented it to N.R. at her home. N.R. identified the defendant as the attacker.

On September 26, N.R. met at the police station with Elizabeth Kelley, the program director of the Child Advocacy Center. During that interview, N.R. expressed uncertainty as to her identification of the defendant. For example, in response to Kelley's question as to "how sure [she was] that it was the guy," N.R. responded, "I don't, I don't know." According to a police lieutenant, the police suspended their investigation as a result of N.R.'s uncertainty.

Trooper McGinley, however, continued investigating the incident and assembled a file on the defendant, including photographs of him and documents regarding his criminal background. On June 19, 2009, McGinley visited N.R. at work and told her he believed that she had chosen the right person in the photo array, and later testified he did so to reassure her that the police cared about her case. He then gave N.R. the file and stepped away for approximately five minutes while she looked at it. When he returned, he gave N.R. his contact information and told her to contact him if she wanted to pursue the matter further.

On June 28, N.R. sent McGinley a text message stating she would like to "help put this guy away." On July 22, N.R. met with Officer Jody Eichorn of the Moultonborough Police Department for another interview. Officer Eichorn asked N.R. if she had identified her attacker in the photo array on September 25, 2008, to which N.R. responded, "Yes." N.R. then explained that the police had caused her to "second-guess[ ]" herself after selecting the defendant's photograph when first presented with the photo array, stating that "they kept harping at me" and repeatedly asked how sure she was. N.R. did not remember discussing the photo array at the September 26, 2008 meeting with Elizabeth Kelley. Eichorn then said, "so, at this point today you answered that yes, you're positive that that was him." N.R. answered, "I'm, yeah." The defendant was arrested on July 24.

The State charged the defendant with aggravated felonious sexual assault and kidnapping and a trial was held in April 2010. That trial ended in a mistrial after a jury could not reach a verdict. Subsequently, the State added charges of attempted aggravated felonious sexual assault and criminal threatening. After a retrial, a jury found him guilty of all four charges.

II

The defendant first argues that the trial court erred in denying his motion to suppress N.R.'s identification of him as her assailant. He asked the trial court to suppress any testimony about N.R.'s September 25, 2008 identification of the defendant in the photo array, any testimony about the July 22, 2009 conversation with Officer Eichorn in which N.R. confirmed she had correctly identified her assailant, and any in-court testimony positively identifying the defendant as her assailant. He contends that the identification procedures employed by the police were unnecessarily suggestive, in violation of his rights under Part I, Article 15 of the State Constitution and the Fifth and Fourteenth Amendments of its federal counterpart.

We first address the defendant's argument under the State Constitution, State v. Ball, 124 N.H. 226, 231–32, 471 A.2d 347 (1983), and rely on federal law only to aid in our analysis, id. at 233, 471 A.2d 347.

On appeal from a motion to suppress identification evidence, we will not overturn the trial court's ruling unless, after reviewing the record, we conclude that it is contrary to the weight of the evidence. State v. Bell–Rogers, 159 N.H. 178, 181, 977 A.2d 1017 (2009) ; State v. Fecteau, 133 N.H. 860, 867, 587 A.2d 591 (1991). In making this determination, we ask whether the identification procedures used were so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. Fecteau, 133 N.H. at 867, 587 A.2d 591. The defendant has the initial burden of proving that the identification procedure was unnecessarily suggestive. State v. King, 156 N.H. 371, 374, 934 A.2d 556 (2007). Only if the defendant has met his burden must we then consider the factors enumerated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), to determine whether the identification procedure was so suggestive as to render the identification unreliable and, hence, inadmissible. King, 156 N.H. at 374, 934 A.2d 556. At this stage of the inquiry, the State bears the burden. Id.

Under Biggers,

the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Biggers, 409 U.S. at 199–200, 93 S.Ct. 375.

A

The September 25 photo array contained eight pictures generated through a computer system using N.R.'s description of her attacker and the appearance of the defendant. Lieutenant Joseph Faia and Sergeant Alan Broyer took the photo array to N.R.'s home and told her they had a person of interest in the case and asked her to look at some photographs. Faia told her to pick the person who attacked her if his picture was in the array, but "[i]f that person isn't in the lineup, do not select anyone." After placing the photographs on the table, N.R. identified the photograph of the defendant as her attacker without hesitation and initialed and dated the space below his image. Faia asked her how sure she was that the man she selected was her attacker and she rated her level of certainty a seven out of ten. The officers did not tell her she had selected the person of interest.

The defendant argues that the photo array procedures were unnecessarily suggestive because the officers "failed materially to follow New Hampshire [Attorney General] protocols specifically designed to eliminate possible suggestiveness in a photo array." We disagree. That the police did not follow every recommendation of the attorney general guidelines does not, in and of itself, satisfy the defendant's burden to show that the manner of presenting the photographs was unnecessarily suggestive. As the trial court recognized, the pertinent inquiry is "whether the police indicated the suspect's identity to the witness by means of the photographic display or by saying something before or contemporaneously with the witness' positive identification," notwithstanding that the police "did not provide [N.R.] with most of the [Attorney General] Guidelines' explanations." See Bell–Rogers, 159 N.H. at 181, 977 A.2d 1017 ("To determine whether the out-of-court identification procedure was unnecessarily suggestive we ask whether the police have implicitly conveyed their opinion of the criminal's identity to the witness by means of the photographic display." (quotation omitted)).

Our review of the record, including the photo array itself, indicates no suggestiveness in the photo array. Cf. Fecteau, 133 N.H. at 867, 587 A.2d 591. Although the police told N.R. they had a person of interest, there is no evidence that they told her that the defendant's photograph depicted that person. As the trial court found, there was no indication that the officers rushed N.R. to make a decision or implied she should select a particular photograph....