State v. Winders

• Decision Date: 05 December 1985
• Docket Number: No. 84-560,84-560
• Citation: 503 A.2d 798,127 N.H. 471
• Parties: The STATE of New Hampshire v. James WINDERS.
• Court: New Hampshire Supreme Court

Page 798

503 A.2d 798

127 N.H. 471

The STATE of New Hampshire v. James WINDERS.

No. 84-560.

Supreme Court of New Hampshire.

Dec. 5, 1985.

Stephen E. Merrill, Atty. Gen. (William H. Lyons, Atty. on brief), for the State.

Charles D. Burkham and Donald R. Routhier, Somersworth, on brief, for defendant.

KING, Chief Justice.

The defendant was indicted on seven counts of burglary. RSA 635:1. The trial court ordered five of the counts severed. After a jury trial in Superior Court (Temple, J.), the jury returned a verdict of guilty on one count and not guilty on the other. The defendant appeals. We affirm.

Winders was charged and convicted of burglarizing the home of Raymond Beaudoin of Rochester on January 4, 1984. He was also charged with burglarizing the home of Gail Richards and Susan Michalsky in Rochester on December 12, 1983. He was found not guilty on that charge.

Prior to trial, the defendant moved to sever the two burglary charges for separate trials. He also moved to suppress an in-court identification of him by Beaudoin on the ground that the out-of-court identification procedures used by the police were unduly suggestive and would taint any in-court identification. Both motions were denied. During the trial, the defendant objected to the admission of an unsigned, typewritten statement made by an unavailable witness on the ground that it was hearsay and not within any exception to the hearsay evidence rule. The objection was overruled.

On this appeal we must decide three questions: (1) whether the superior court abused its discretion in not severing the two burglary counts, (2) whether there was a sufficient independent basis to allow an in-court identification, and (3) whether the hearsay testimony was properly allowed into evidence.

I. Severance

"The decision to join or to sever cases for trial is within the discretion of the trial court." State v. Whitney, 125 N.H. 636, 639, 484 A.2d 1158, 1160 (1984) (citing State v. Lainey, 117 N.H. 592, 595, 375 A.2d 1162, 1164 (1977)). We will uphold the trial court's ruling unless it is shown that the defendant's right to a fair trial was jeopardized by non-severance. State v. Freije, 109 N.H. 290, 291, 249 A.2d 683, 684 (1969).

In this case, the trial court did not abuse its discretion in declining to sever the two burglary charges since the defendant's right to a fair trial was not jeopardized by the joinder of the charges. On our reading of the trial transcript, the evidence in support of each of the burglary offenses was not lengthy, was simple and unlikely to confuse a jury, and was easily referable to each crime. Dunaway v. United States, 205 F.2d 23, 26-27 (D.C.Cir.1953) ; see United States v. Clayton, 450 F.2d 16, 18-19 (1st Cir.1971), cert. denied, Clayton v. United States, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972). In fact, the State called a total of only seven witnesses, and the greater part of the testimony involved descriptions of the burglaries, an identification of the defendant, and reports by several witnesses of conversations they had with the defendant.

II. In-court Identification

Beaudoin returned to his home in Rochester at about 6:30 p.m. on January 4, 1984, and, as he opened his front door, encountered a burglar. Beaudoin and the burglar had a brief confrontation on Beaudoin's front porch, which was lit only by a street light located across the road. While the two exchanged words, the burglar held a knife which was pointed at Beaudoin's stomach. Beaudoin described the burglar to police as a man, six feet tall, with a thin moustache.

During their investigation of the Beaudoin burglary, the Rochester police made two out-of-court attempts to have Beaudoin identify the man who burglarized his home.

In the first attempt, which occurred about two or three weeks after the burglary, the police showed Beaudoin seven black and white photographs with identification numbers on the front. After eliminating all but two of the photographs, Beaudoin picked the defendant's photograph because the face in the other photograph was pockmarked and because the defendant had a "similar style face" to that of the burglar.

In a second identification attempt, which took place within four to five weeks of the burglary, the police had Beaudoin view the defendant through a one-way mirror. The defendant was sitting sideways in front of the one-way mirror, and Beaudoin had what he described as a "one-third view in the back" of the defendant. Beaudoin was unable to identify the defendant as the burglar.

The State agreed not to use the results of either out-of-court identification procedure in court because they had lost the photographs from the photographic array session, and because the one-way mirror viewing did not result in an identification.

Prior to trial, the defendant moved to suppress an in-court identification of the defendant by Beaudoin on the ground that the out-of-court identification procedures that the police used were unduly suggestive and would taint any in-court identification. After a hearing on the motion, the Superior Court (Temple, J.) ruled that an in-court identification would not be suppressed. In its ruling, the court noted:

"Testimony was offered to allow the Court to determine whether any in court [sic] identification would have resulted from either the photo [sic] array session or the one-way mirror session. It is clear that any identification would result from neither. If an identification is made in Court it will rest solely on what the victim says he was able to observe on the night of the offense."

We will not overturn the trial court's finding unless, after reviewing the record, we conclude that it is contrary to the weight of the evidence. State v. Reynolds, 124 N.H. 428, 434-35, 471 A.2d 1172, 1175 (1984) (citation omitted).

When an out-of-court identification has been suppressed as being unduly suggestive and otherwise unreliable, a subsequent in-court identification will be allowed only if the State proves by clear and convincing evidence that "the in-court identification ha[d] an independent source and [was] not influenced by the out-of-court viewing...." State v. Preston, 122 N.H. 153, 157-58, 442 A.2d 992, 994 (1982) (quoting State v. Leclair, 118 N.H. 214, 221, 385 A.2d 831, 835 (1978)).

In this case, evidence of neither out-of-court identification session was suppressed, because the State stipulated that it would not attempt to use such evidence at the trial. However, we infer that the judge determined that suppression of at least one of the two out-of-court identification procedures would have been justified, because he reached the question of whether any subsequent in-court identification would be based on an independent source uninfluenced by the out-of-court viewings. See State v. Stoehrer, 123 N.H. 661, 664, 465 A.2d 905, 908 (1983); Leclair, supra 118 N.H. at 220-21, 385 A.2d at 835.

In determining whether a subsequent in-court identification is "independent," and will thus be allowed into evidence, a court should consider the five factors set forth in United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967). State v. Preston, supra 122 N.H. at 158, 442 A.2d at 995; see United States v. Crews, 445 U.S. 463, 473 n. 18, 100 S.Ct. 1244, n. 18, 63 L.Ed.2d 537 (1980). We most recently enumerated the five Wade factors in State v. Philibotte, 123 N.H. 240, 459 A.2d 275 (1983): "[T]he trial court should consider the opportunity of the witness to observe the defendant, the existence of any discrepancy between the initial description and the defendant's actual appearance, the witness' misidentification of the defendant or failure to identify him on a prior occasion, and the time between the alleged crime and the identification." Id. at 243, 459 A.2d at 276 (citations omitted).

In this case, there was sufficient evidence in the record for the trial court to conclude that there was an independent source for Beaudoin's in-court identification of the defendant, and that the in-court identification was not influenced by the out-of-court viewings. Beaudoin testified that his encounter with the burglar lasted two to...