Argued March 6, 2014.
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
Joseph A. Foster, attorney general (Geoffrey W.R. Ward, assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.
HICKS, J. DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.
The defendant, James Perry, appeals his conviction, following a jury trial in Superior Court (Delker, J.), of attempted kidnapping. See RSA 629:1 (2007); RSA 633:1, I (2007). We affirm in part, vacate in part, and remand.
The defendant was indicted on one count of attempted kidnapping and one count of criminal restraint arising out of a single course of conduct occurring on or about December 14, 2011. The attempted kidnapping indictment alleged that on or about that date, the defendant,
acting with a purpose that the crime of Kidnapping be committed, ... approached [the victim] while she was standing at her driver side door and displayed a weapon while telling her to get back in her car, told her to unlock her rear door and then dove across [her] lap while she was seated in the driver seat when she failed to unlock the rear door, ... which under the circumstances as he believed them to be constituted a substantial [step] toward the commission of said crime ... .
The jury convicted the defendant on both counts, but, because the offenses arose out of the same uninterrupted course of conduct, the trial court sentenced the defendant only on the attempted kidnapping conviction, while holding the criminal restraint conviction in abeyance pending the outcome of any appeal.
On appeal, the defendant argues that the trial court erred by: (1) admitting the victim's in-court identification of the defendant when she had not made a prior out-of-court identification; and (2) sentencing him for a class A felony when the indictment failed to allege, and the jury was not instructed to find, a fact necessary for that level offense; namely, that he did not " voluntarily release the victim without serious bodily injury and in a safe place prior to trial." RSA 633:1, II (2007). We will address each argument in turn.
" 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). Just prior to the start of trial, counsel for the State and for the defendant advised the court of an issue that might arise during the proceedings. Specifically, although the State had not initially planned to ask the victim to identify the perpetrator of the crime, the prosecutor stated that she might attempt an identification if she got " some sort of sense" from the victim during her testimony that she would be able to identify the defendant. The defendant's counsel objected, noting that there had never been an out-of-court identification, and counsel agreed that if the State should decide to seek an identification from the victim, they would approach the bench at that time to address the defendant's objection.
At that subsequent sidebar conference, counsel for the defendant argued that an in-court identification would be " unconstitutionally suggestive" and inadmissible under the analysis of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The trial court found the Biggers analysis inapplicable according to our holding in State v. King, 156 N.H. 371, 934 A.2d 556 (2007), and allowed the in-court identification.
On appeal, the defendant argues that King is distinguishable. First, he notes the witness in King was presented, prior to trial, with a photo array from which she could not identify the defendant. See King, 156 N.H. at 372. Thus, the defendant argues, the State had attempted a nonsuggestive identification prior to trial in King, while " [h]ere, the State made no effort to secure a nonsuggestive identification ... and offered no explanation for its decision not to create a line-up that included [his] photo." Second, the defendant asserts that because " King was aware, prior to trial, that the State would be seeking an in-court identification ..., he was able to file a pretrial motion to exclude the identification" and could have taken other pretrial measures. See King, 156 N.H. at 372. The defendant contends that here, by contrast, " the State advised [him] prior to trial that it did not intend to ask [the victim] to identify him" and, therefore, he did not mount a pretrial challenge to an in-court identification. He ...