The defendant, Warren Griffin, appeals his conviction, following a jury trial in superior court, on charges of armed robbery, criminal threatening, falsifying evidence, and witness tampering. See RSA 631:4 (2007) (amended 2010); RSA 636:1 (2007); RSA 641:5 (2007); RSA 641:6 (2007). He argues that the trial court erred by not suppressing in-court and out-of-court identifications on grounds that they were based upon an unnecessarily suggestive show-up in violation of the State and Federal Constitutions, and by admitting evidence of his gang affiliation pursuant to New Hampshire Rule of Evidence 404(b). We affirm.
We first address whether the trial court erred by not suppressing the identification evidence under the State Constitution, and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). We will not overturn the trial court's ruling on a motion to suppress identification evidence unless it is contrary to the weight of the evidence. State v. Perri, 164 N.H. 400, 404 (2013). In reviewing the trial court's ruling, we ask whether the identification procedures used by the police were so unnecessarily suggestive and conducive to irreparable misidentification that they denied the defendant due process of law. Id. The defendant bears the burden of establishing that the identification procedures were unnecessarily suggestive. Id. Once the defendant satisfies this burden, the State must demonstrate, pursuant to the factors enumerated in Neil v. Biggers, 409 U.S. 188 (1972), that the identification procedures were not so suggestive as to have rendered the identification unreliable. Id.
We have observed that a one-person show-up is inherently suggestive. See State v. Leclair, 118 N.H. 214, 219 (1978); State v. Butler, 117 N.H. 888, 891 (1977). We have also recognized, however, that such a procedure may be justified by exigent circumstances. See Leclair, 118 N.H. 219; see also United States v. Hawkins, 499 F.3d 703, 707 (7th Cir. 2007). In this case, the trial court concluded that the identification procedures that the police utilized were not unnecessarily suggestive due to exigent circumstances.
Upon this record, we cannot say that the trial court's determination was contrary to the weight of the evidence. Perri, 164 N.H. at 404. The record establishes that, shortly before the car in which the defendant was a passenger had been stopped for a traffic violation, an armed robbery had occurred in the vicinity of the traffic stop. See Hawkins, 499 F.3d at 707 (recognizing that exigent circumstances exist where an individual is apprehended close in time and proximity to the scene of a crime). Although cell phone records provided the police with a possible link between the defendant and the crime, the defendant was not, at that time, under arrest for any crime. Moreover, although two eyewitnesses had reported that the perpetrator had threatened them with a handgun, no handgun had yet been located. Under these circumstances, the show-up served the legitimate purpose of informing the officers whether a continued search for an armed robber was necessary. See id. at 710.
Additionally, nothing in the record establishes that the police conveyed to the witnesses any belief that the defendant was, in fact, the person who had committed the armed robbery. The evidence establishes that the defendant stood, without handcuffs, next to the driver of the car in which he had been a passenger, that the two witnesses were driven past the defendant and the driver in separate police cruisers, and that the witnesses were asked whether they could identify either person as having been involved in the robbery. See id. at 708 (noting that police officer took no steps other than the show-up itself to suggest that the defendant was the person who had committed the crime).
Under these circumstances, we conclude that the trial court did not err by finding that the show-up procedure was not unnecessarily suggestive in violation of the State Constitution. Because the Federal Constitution is no more protective of the defendant's rights than the State Constitution under these circumstances, see id. at 707-08, we reach the same conclusion under the Federal Constitution.
We next address whether the trial court erred by admitting evidence of the defendant's gang affiliation under Rule 404(b). The decision to admit evidence of other bad acts under Rule 404(b) lies within the trial court's sound discretion; we will not overturn the trial court's decision unless the defendant establishes that it was clearly untenable or unreasonable to the prejudice of his case. State v. Davidson, 163 N.H. 462, 467 (2012). To be admissible under Rule 404(b): (1) the bad acts in question must be relevant for a purpose other than proving the defendant's character or disposition; (2) there must be clear proof that the defendant committed the acts; and (3) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. Id. at 469. In this case, the defendant challenges the trial court's ruling under the first and third prongs of this test.
To meet the relevance prong of Rule 404(b), the trial court is required to explain how the evidence relates to a disputed issue without invoking propensity. Id. In its pretrial order finding evidence of the defendant's gang affiliation admissible, the trial court identified the following purposes for the evidence: (1) to establish the defendant's association with David McCleod, another gang member and witness for the State, and his motive "to send McCleod (a subordinate) to find a source for drugs as a prelude to" the armed robbery; (2) to connect the defendant with a handgun, which was found in a backpack with gang documentation, and which McCleod asserted the defendant had used in the robbery; (3) to provide context for the defendant's communications with John Froehling, a gang associate whom the defendant had asked to provide false testimony in a separate criminal case against another gang member, conduct for which the defendant was charged with witness tampering; and (4) to identify the defendant as the author of certain letters to McCleod, which were signed by someone using the defendant's gang nickname, and which contained coded threats against McCleod.
Consistent with its pretrial order, the trial court instructed the jury, without objection, that while it could not consider the defendant's gang affiliation "to prove that he is a person of bad character or that he has a disposition to commit crimes, " it could consider such evidence "solely for the purposes of showing the Defendant's motive and intent, the relationship of the parties, and identification." The defendant argues that his gang affiliation was not relevant to establish either identity or motive for the charged crimes. We disagree.
"Motive has been defined as supplying the reason that nudges the will and prods the mind to indulge in criminal intent." State v. Gordon, 161 N.H. 410, 415 (2011) (quotation omitted). We have also recognized that context, while not specifically enumerated in Rule 404(b), may constitute a legitimate Rule 404(b) purpose so long as the evidence has bearing on an issue in dispute apart from its tendency to establish propensity. Davidson, 163 N.H. at 469.
In this case, the trial court reasonably could have found that the defendant's gang affiliation was relevant to explain the context for, and his motive to commit, the armed robbery. The evidence at trial established that McCleod was subordinate to the defendant in his gang, that the gang's primary source of income was the sale of drugs, that the defendant's primary supply of drugs had "dried up, " and that the defendant had ordered McCleod to find a new supplier. The robbery occurred within the course of a meeting McCleod had set up between the defendant and a potential supplier of marijuana in order to purchase half a pound of marijuana. Similarly, evidence of the defendant's gang affiliation provided a motive for the defendant to engage in witness tampering by asking Froehling to testify falsely in a separate criminal trial against another gang member.
Additionally, the trial court reasonably could have found that evidence of the defendant's gang affiliation was relevant to establish his identity as the person who had committed the armed robbery, and as the author of the threatening letters received by McCleod. The defendant claimed at trial that it was McCleod who had held the gun during the robbery. The evidence established, however, that the backpack in which the gun was found also contained a paper bearing the words, "Vice Lord Nation" and "New Hampshire Chapter"; the defendant was the head of the New Hampshire Chapter of a gang called the "Vice Lords." Evidence of gang affiliation, therefore, tied the defendant to the gun. Moreover, the defendant's gang affiliation established that he wrote the letters received by McCleod, which were signed with the defendant's gang nickname, and which contained coded language that would be understood by someone affiliated with the gang as threats.
Finally, we address whether the probative value of the gang affiliation evidence was substantially outweighed by the danger of unfair prejudice. "Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case." State v. Costello, 159 N.H. 113, 122-23 (2009).
As discussed above, evidence of the defendant's gang affiliation was probative of his identity as the perpetrator of the charged crimes, and of his motives to engage in the crimes. Moreover, we note that the trial court bifurcated the case between "guilt" and "penalty" phases under RSA 651:6, I(q) (Supp. 2013), thereby excluding from the guilt phase certain prejudicial evidence related to the defendant's gang affiliation, including evidence of uncharged gang-related violent crimes, and minimizing the danger of unfair prejudice. The trial court further minimized the danger of unfair prejudice by properly instructing the jury as to the limited purposes for which it could use the gang affiliation evidence. Id. at 123. Upon this record, the trial court reasonably could have found that the primary purpose or effect of the gang affiliation evidence was not to cause ...