State v. Cross

519 A.2d 272, 128 N.H. 732, 1986 N.H. LEXIS 351
CourtSupreme Court of New Hampshire
DecidedDecember 5, 1986
DocketNo. 85-097
StatusPublished
Cited by8 cases

This text of 519 A.2d 272 (State v. Cross) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cross, 519 A.2d 272, 128 N.H. 732, 1986 N.H. LEXIS 351 (N.H. 1986).

Opinion

Souter, J.

Following a jury trial in the Superior Court {Bean, J.) the defendant was convicted on two counts of bank robbery, RSA 636:1. On appeal, he claims that the trial judge erred in allowing [733]*733eyewitnesses to identify him in court as the robber, and in denying a motion to set aside the verdict. We affirm.

On November 24, 1982, a lone man robbed the Village Savings Bank in New Ipswich, where he was observed by four employees and one customer throughout the robbery. The police later showed the witnesses an array of photographs that did not include one of the defendant, and although no employee purported to identify the robber from the photographs, some of them noted similarities to the robber’s features. The employees recalled that the robber was between five feet six inches and six feet tall, and had a medium build, a reddish or pocked face, and red-blonde hair; three employees observed that the hair was a wig, and one noted that brown hair had protruded from beneath it.

A week after the robbery, one Richard Chisholm appeared at the drive-in service stand located farthest away from the bank’s nearest window. Two employees observed him from within the building and identified him as the robber. Although he was arrested and charged with the robbery, a month later the employees realized that they had accused the wrong person, when the bank was again robbed by a man whom some of them recognized as the same one who had committed the earlier crime. Two of the four employees present at the second robbery had witnessed the first, and descriptions of the perpetrator given by all four were consistent with those given before, except that a hat was described in place of the wig.

Some eighteen months after this second incident, the police showed five of the employees a new array of photographs, including one of the defendant. Two of the five selected the defendant’s photograph as that of the robber, though not with complete certainty; the other three did not select the defendant’s photograph but thought other photographs showed some features similar to the robber’s. At trial, over the defendant’s objection, each of the six employees who had observed one or both robberies identified the defendant as the robber, four of them with a high degree of certainty.

A week after the trial ended with the defendant’s conviction, the foreman on the defendant’s jury was in the venire panel from which a jury was to be chosen for another criminal case. In the course of voir dire he answered questions from the trial judge about the significance of an indictment and of a defendant’s failure to testify. After the colloquy, the judge excused him for cause.

Upon learning of this, counsel for the defendant in this case moved to set the verdict aside and requested a new trial. The defendant’s motion did not quote the juror’s testimony, since no transcript of the later voir dire had been prepared at that point; nor did the defendant attempt to call the juror to the stand in support of [734]*734the motion, or to offer any other evidence. Defense counsel simply claimed that the juror had been excused for cause after stating that he “believed an indictment was evidence of a crime and that a defendant is showing his guilt if he did not testify at trial.” The court denied the motion and at the same time ordered the preparation of the transcript of the juror’s later voir dire, on the understanding that it would be included in the record in this appeal. (That is, the court ruled on the motion without benefit of evidence that was nonetheless to be considered on appeal, a practice that we disapprove.)

We deal first with the defendant’s objection to his in-court identification, which he claims should have been suppressed on the ground that the risk of prejudice resulting from error outweighed the probative value of the eyewitness testimony. See N.H. R. Ev. 403. It is important to recognize that the defendant does not argue that the in-court identifications were tainted by any improper pretrial identification procedure. There was no corporeal line-up or show-up, and there is no claim that the second photographic array, containing the defendant’s picture, was suggestive in any way that may have tainted the later in-court identification. See Simmons v. United States, 390 U.S. 377 (1968); State v. Allard, 123 N.H. 209, 213, 459 A.2d 259, 262, cert. denied, 464 U.S. 933 (1983).

The defendant argues, rather, that the identifications should have been excluded because of a variety of factual circumstances that rendered their probative force too insignificant to outweigh their potential for error: the lapse of two years since the robberies; the failure of the witnesses to see the defendant during this period; the mistaken identification of Chisholm by two witnesses; the inability of three witnesses to identify the defendant’s photograph in the second array; the exhibition to the witnesses during trial of the prior photographic array containing the defendant’s picture; and the position of the defendant at the defense table in the company of defense counsel, whom the witnesses had come to know during pretrial discovery proceedings.

Obviously, these circumstances weakened the value of the identifications, and steps could have been taken to minimize the risks they presented. The police, for example, could have conducted a pretrial line-up; or the court, in the exercise of its discretion in such a close case, could have ordered that one be held, in order to test the witnesses’ recollections. At a hearing outside the presence of the jury the defendant could have been seated in the spectator section of the courtroom, among people of not dissimilar appearance, when each witness was asked if he or she recognized the robber. And the photographic array need not have been shown to the witnesses in court before eliciting the in-court identifications.

[735]*735But it does not follow from these possibilities for better procedures that the actual identifications were unreliable to the point of inadmissibility. See State v. Ober, 116 N.H. 381, 359 A.2d 624 (1976). As against the weakening factors that the defendant raises, there were countervailing indicia of reliability. Each witness had at least one extended opportunity to observe the robber in good lighting without distraction, and two witnesses observed the robber twice. Each witness described the robber immediately after the incidents, and all substantially agreed in describing his face and physical build. Although two witnesses did misidentify Chisholm, they realized their own errors immediately on seeing the robber a second time. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (listing factors bearing on reliability of an eyewitness’s identification). Under these circumstances, the in-court identifications cannot be considered so bereft of reliability as to require exclusion.

We need only add that there was adequate opportunity at trial to address the serious issue of the soundness of the identifications.

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Bluebook (online)
519 A.2d 272, 128 N.H. 732, 1986 N.H. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cross-nh-1986.