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State v. Webster

Supreme Court of New Hampshire

October 15, 2014

The State of New Hampshire
Myles Webster

Argued September 11, 2014.

Page 204

Editorial Note:

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.

Hillsborough - northern judicial district.

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.



Page 205

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 [166 N.H. 786] 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

Page 206

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 [166 N.H. 787] into evidence of these out-of-court and in-court identifications violated his state and ...

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