State v. Webster

166 N.H. 783

104 A.3d 203

The STATE of New Hampshire

v.Myles WEBSTER

No. 2013–079

Supreme Court of New Hampshire.

Argued: September 11, 2014

Opinion Issued: October 15, 2014

Joseph A. Foster, attorney general (Stacey L. Pawlik, assistant attorney general, on the brief and orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.

DALIANIS, C.J.

The defendant, Myles Webster, appeals his conviction by a jury of attempted murder, see RSA 629:1 (2007); RSA 630:1 (Supp.2013) ; armed robbery, see RSA 636:1 (2007); reckless conduct, see RSA 631:3 (2007); and resisting arrest, see RSA 642:2 (Supp.2013). On appeal, he argues that the Superior Court (Abramson, J.) erred by denying his motions to suppress eyewitness identification evidence and for a change of venue. We affirm.

I. Motion to Suppress

A. Background

The trial court found, or the record establishes, the following facts. On March 21, 2012, Manchester Police Officer Daniel Doherty responded to a request for assistance in detaining a subject. Doherty saw the subject walking on Dubuque Street. He exited his cruiser and walked toward the subject. The subject was about thirty feet away from Doherty, and Doherty testified that he clearly saw the subject's face. The suspect started running when Doherty yelled, "Police, show me your hands!" Doherty pursued the subject on foot and then radioed for assistance.

The two ran across Dubuque Street to Wayne Street. After Doherty got within three-to-five feet of the subject, the subject pulled a gun out of his waistband and shot Doherty. Doherty fell backward. While lying on his back, Doherty returned fire. The subject repeatedly shot Doherty, moving closer to Doherty as he did so. When the shooting stopped, the subject was only two or three feet away from Doherty, who testified that he could clearly see the subject's face. The subject then ran away.

Kimberly Edwards was on the porch of her Wayne Street apartment when the shooting occurred. She heard people running and saw an officer chasing someone. She saw that person then "whip[ ] around" and raise a black handgun. She ran inside and heard many shots. After the shots subsided, she returned outside and observed an officer lying on the ground. Edwards testified that she clearly saw the shooter because she was only about twenty feet away from him.

Holly Martin was sitting in her car, which was parked near the intersection of Wayne and Rimmon Streets, when she observed a police officer chasing a man toward her vehicle. For a few seconds, she was able to see the man being chased and observed him raise a gun toward the officer.

The defendant was apprehended that evening, and at 4:44 a.m. on March 22, the police released his booking photograph to the media. Later that day, the police spoke with Edwards and Martin. Edwards told the police that, in a newspaper article and on the internet, she saw photographs of a man whom she believed she had seen shoot an officer the day before on March 21. Martin called the police on the night of the incident to tell them what she had witnessed. Approximately two weeks later, she was asked to give a recorded statement. Martin mentioned to the police that she had seen a photograph of the subject in a newspaper. Doherty was interviewed about the incident in April, and, at that time, told the police that he had seen on television photographs of the man who shot him.

Before trial, the defendant moved to suppress the out-of-court identifications made by Doherty, Edwards, and Martin. He argued that the Manchester Police Department procured those out-of-court identifications by using an unnecessarily suggestive identification procedure that entailed releasing his booking photograph before interviewing the witnesses and without first using non-suggestive identification procedures. The defendant also sought to preclude these witnesses from identifying him in court during trial, arguing that such identifications would have been irreparably tainted by the unnecessarily suggestive out-of-court identifications.

Additionally, the defendant sought to preclude initial in-court identifications made by other eyewitnesses, arguing that their in-court identifications would be "unreliable because they were not asked to identify [him] in a photo array or lineup" and because "their memories [were] affected by the pervasive media coverage." The defendant argued that the admission into evidence of these out-of-court and in-court identifications violated his state and federal constitutional rights to due process. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amends. V, XIV.

The trial court held two hearings on the defendant's motion to suppress. In its order following the first hearing, the trial court ruled that the out-of-court identifications by Doherty, Edwards, and Martin "were arranged by law enforcement and were procured under unnecessarily suggestive circumstances." The court found that the police released the defendant's booking photo "in a press release at 4:44 a.m. on March 22, 2012," which was "mere hours before [the] defendant's public arraignment." The court credited the testimony of a police sergeant that the photograph was released in response to media inquiries and in accordance with normal department policy. The court found that Doherty, Edwards, and Martin all "identified [the] defendant as the shooter by referencing the photographs in the media, including [his] booking photograph." The court further found that "given the circumstances surrounding this case," including "the extensive media coverage, the fact that witnesses had yet to identify [the] defendant, and the fact that [the police department] released the photograph mere hours before [his] public arraignment," the police acted improperly by releasing the photograph. Based upon the above findings, the trial court determined that the identification procedure was unnecessarily suggestive.

In its order following the second hearing, the court evaluated the out-of-court identifications by Doherty, Edwards, and Martin and found them to be reliable and admissible according to the factors enumerated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See id . at 199–200, 93 S.Ct. 375 (listing, among the "factors to be considered in evaluating the likelihood of misidentification," the witness' opportunity "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"). Having so concluded, the court determined that it had "no need to separately examine the propriety of any in-court identification" made by those witnesses. The court also ruled that the Biggers factors did not apply to the in-court identifications of other witnesses. See State v. King, 156 N.H. 371, 376, 934 A.2d 556 (2007) ; see also State v. Perry, 166 N.H. ––––, ––––, ––– A.3d ––––, 2014 WL 4476969 (decided September 12, 2014). The court, therefore, denied the defendant's motion to suppress.

B. Analysis

The defendant first contends that the court erroneously found that the out-of-court identifications by Doherty, Edwards, and Martin were admissible because it misapplied the Biggers factors. Second, he asserts that the court erred by declining to apply the Biggers factors to the in-court identifications made by witnesses who had not previously identified the defendant to the police. The admission of the out-of-court and in-court identifications, he argues, violated the State and Federal Due Process Clauses. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amends. V, XIV. The State argues, among other things, that the trial court erred when it determined that the police used an unnecessarily suggestive identification procedure.

We first address the defendant's claims under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983). "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. Perri, 164 N.H. 400, 404, 58 A.3d 627 (2012). 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. Id. The defendant has the initial burden of proving that the identification procedure was unnecessarily suggestive. Id. Only if the defendant has met this burden must we then consider the Biggers factors to determine whether the identification procedure was so suggestive as to render the identification unreliable and, hence, inadmissible. Id.

1. Out–of–Court Identifications

We first consider whether, as the State contends, the trial court erred by analyzing the out-of-court examinations under the Biggers factors because, contrary to the trial court's finding, those identifications were not the result of an unnecessarily suggestive identification procedure. See State v. Dion, 164 N.H. 544, 552, 62 A.3d 792 (2013) ("Where the trial court reaches the correct result on mistaken grounds, we will affirm if valid alternative grounds support the decision." (quotation and brackets omitted)).

In Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012), the United States Supreme Court rejected the contention that its identification decisions "support[ ] a rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances." Perry, 132 S.Ct. at 725. It held that "the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the...