State of New Hampshire v. James Perry, 166 N.H. 716

Defendant James Perry was indicted for attempted kidnapping and criminal restraint arising from an incident on or about December 14, 2011, in which the victim was threatened with a weapon and defendant tried to get into her car.
At trial the State elicited the victim’s in-court identification of Perry; there had been no prior out-of-court identification or lineup.
The jury convicted Perry on both counts; because the offenses arose from a single uninterrupted course of conduct, the court sentenced only on the attempted kidnapping verdict and held the criminal restraint conviction in abeyance pending appeal.
Pretrial, the prosecutor indicated she might request an in-court identification depending on the victim’s testimony; defense counsel objected and preserved the issue for sidebar if the identification was sought.
At sentencing the trial court treated attempted kidnapping as a Class A felony and imposed a Class A sentence; on appeal Perry argued (1) the in-court identification should have been excluded under Biggers and (2) the indictment and jury findings were inadequate to support a Class A attempted-kidnapping sentence because the element distinguishing Class A from Class B (no voluntary safe release) was not alleged or found.

Issue	State's Argument	Perry's Argument	Held
Admissibility of first in-court identification where no pretrial ID occurred	In-court ID admissible; Biggers pre-screening inapplicable to routine in-court IDs per State v. King; cross-examination suffices	In-court ID was unconstitutionally suggestive; Biggers reliability test should apply because no nonsuggestive pretrial ID was sought	Court affirmed: follow King — Biggers does not apply to purely in-court IDs absent improper law-enforcement suggestion; identification admissible
Sentencing level for attempted kidnapping (Class A v. Class B)	Attempt statute does not require pleading/proving statutory variants of the intended completed crime; voluntary-safe-release is irrelevant to attempt sentencing	Indictment and jury did not allege/find the absence of voluntary safe release, an element required to elevate kidnapping to Class A; thus Class A sentence improper	Court vacated Class A sentence and remanded for resentencing as Class B: for attempted kidnapping the element that distinguishes completed Class A need not be alleged/proved, so indictment insufficient to support Class A attempt sentence

Neil v. Biggers, 409 U.S. 188 (1972) (establishes factors for evaluating suggestive pretrial identifications)
State v. King, 156 N.H. 371 (2007) (holds Biggers analysis does not apply to ordinary in-court identifications; cross-examination is the remedy)
Perry v. New Hampshire, 132 S. Ct. 716 (2012) (Due Process does not require judicial reliability screening for identifications not procured by police suggestiveness)
State v. LaRose, 127 N.H. 146 (1985) (treats absence of voluntary safe release as element relevant to elevating kidnapping to Class A)
State v. Goodwin, 118 N.H. 862 (1978) (serious injury/psychological harm as an element for Class A consideration must go to jury)
State v. Johnson, 144 N.H. 175 (1999) (attempt requires intent and a substantial step; attempt is a substantive offense separate from completed crime)
State v. Casanova, 164 N.H. 563 (2013) (attempt indictment must identify intended offense but need not plead elements of the intended completed crime)
State v. Glanville, 145 N.H. 631 (2000) (distinguishes charging mistakes where the State tried to allege a specific variant of the attempted crime but mispleaded it)