167 N.H. 634
N.H.2015Background
- Victim Terrence Jackson was shot in the face during an apparent robbery at an apartment; he later identified the defendant, Richard Scott, as the shooter and the jury convicted Scott of attempted murder and being a felon in possession of a deadly weapon.
- At the scene and in early police interviews Jackson initially lied about circumstances and the shooter, claiming he was sleeping and could not identify the shooter; at trial he testified he lied because he feared retaliation and wanted to protect his "street reputation."
- Detective Mucci, during a hospital interview, asked Jackson whether an acquaintance known as "Jay" had shot him; Jackson ultimately replied that it was "Jay," and later identified Scott from a photo lineup. Defense moved to suppress identification as an impermissible suggestive one-man show-up.
- Trial court denied suppression; Scott was convicted following a jury trial. Scott appealed raising challenges to denial of motion to dismiss (weight of evidence), suppression of identifications, prosecutorial closing remarks about the "drug world," failure to instruct sua sponte on lesser-included offenses, and ineffective assistance of counsel.
- Supreme Court of New Hampshire affirmed: (1) weight-of-evidence challenge not preserved because no post-verdict motion to set aside verdict; (2) identification procedure was not unnecessarily suggestive so suppression and in-court ID admissible; (3) prosecutor’s comments were permissible inferences from trial evidence; (4) trial court had discretion not to instruct sua sponte on lesser-included offenses; (5) ineffective-assistance claim deferred to collateral review.
Issues
| Issue | State's Argument | Scott's Argument | Held |
|---|---|---|---|
| Whether challenge to weight of the evidence was preserved | Not preserved; defendant failed to move to set aside verdict post-trial | Trial-court denied motion to dismiss at close of State's case — court should have considered weight challenge | Not preserved; defendant waived by failing to move to set aside verdict |
| Whether out-of-court and in-court identifications should be suppressed as unduly suggestive | Identification not a show-up; Mucci merely asked if acquaintance "Jay" shot him; Biggers factors not required because procedure not unnecessarily suggestive | Mucci’s naming of "Jay" was an improper one-man show-up and tainted subsequent in-court ID | No suppression; not unnecessarily suggestive, in-court ID admissible |
| Whether prosecutor’s closing remarks about the "drug world" were improper | Remarks drew reasonable inferences from trial evidence (drug dealing, cash, fear of snitching) | Prosecutor relied on personal knowledge and urged jurors to accept facts not in evidence | No plain error; remarks were permissible inferences from evidence |
| Whether court erred by sua sponte failing to instruct on lesser-included offenses | Court has discretion to give such instructions; no abuse here | Court should have instructed on lesser-included offenses like assault | No plain error; no sua sponte instruction required |
Key Cases Cited
- Neil v. Biggers, 409 U.S. 188 (1972) (factors to evaluate reliability of identifications)
- State v. Hill, 163 N.H. 394 (2012) (weight-of-evidence challenge must be raised by motion to set aside verdict)
- State v. Webster, 166 N.H. 783 (2014) (standard for reviewing suppression of identification evidence)
- State v. Bell-Rogers, 159 N.H. 178 (2009) (police suggesting identity can render identification procedure unduly suggestive)
- State v. Leclair, 118 N.H. 214 (1978) (one-man show-up based on single photograph can be unduly suggestive)
- State v. Perri, 164 N.H. 400 (2013) (inadmissible out-of-court ID taints subsequent in-court ID unless independent)
- State v. Bisbee, 165 N.H. 61 (2013) (prosecutor has wide latitude to draw reasonable inferences in closing)
- State v. Guay, 164 N.H. 696 (2013) (plain error standard and its limited application)