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The State of New Hampshire v. Timothy Perri

December 7, 2012

THE STATE OF NEW HAMPSHIRE
v.
TIMOTHY PERRI



The opinion of the court was delivered by: Hicks, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: September 12, 2012

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 (1983), and rely on federal law only to aid in our analysis, id. at 233.

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 (2009); State v. Fecteau, 133 N.H. 860, 867 (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. The defendant has the initial burden of proving that the identification procedure was unnecessarily suggestive. State v. King, 156 N.H. 371, 374 (2007). Only if the defendant has met his burden must we then consider the factors enumerated in Neil v. Biggers, 409 U.S. 188 (1972), to ...


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