State v. PrestonState v. Preston
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- Before:
- Brock
The defendant appeals his conviction by a jury of the crimes of kidnapping (
On appeal, the defendant raises issues concerning the composition of the juries which indicted and tried him, the admissibility of an in-court identification of him by the victim, the jury nullification instruction given by the trial court and its failure to grant his requested instruction on reasonable doubt.
In advance of trial, the defendant moved to quash the jury panel, alleging that the process by which jurors were selected was unconstitutional, and to quash the indictments returned by the grand jury. Alternativеly, he requested that his motion be joined with other pending cases regarding jury selection, specifically State v. Elbert, 121 N.H. 43, 424 A.2d 1147 (1981). The Trial Court (Mulla vey, J.) denied these motions and the defendant excepted. The defendant also moved to suppress an out-of-court identification of him by the victim, on the ground thаt the identification procedure employed by the police was impermissibly suggestive and otherwise improper. Further, he requested that the State not be permitted to allow anyone who had participated in an improper out-of-court identification (i.e., the victim) to make an in-court identification of him.
I. Composition of the Jury
The defendant contends that the composition, and the method of selection, of the grand jury which indicted him аnd the petit jury which tried him was discriminatory as to age and race, thereby violating his rights under the United States Constitution.
The defendant further claims that it was error for the court to deny him an opportunity to present evidence in support of his constitutional challenge to the juries and the process by which they were selected, or, in the alternative, to allow him to consolidate his challenge with Elbert proceeding. He argues that this was error because it effectively denied him an opportunity to have a complete record should he seek a writ of habeas corpus in the federal court system at some later date.
Even if the court erred when it denied the defendant’s request, such error was harmless because, if the defendant should require a complete record on this issue in a habeas corpus proceeding, he may, at that time, under federal and State procedures, request that judicial notice be taken of the proceedings and this court’s decision in the
Elbert
case. 1 Wharton, Criminal Evidence § 63, at 102 (13th ed. 1972);
see generally LaBelle v. Hancock,
134 F. Supp. 273, 275 (D.N.H. 1955);
Petition of Morin,
95 N.H. 518, 523, 68 A.2d 668, 672 (1949) (in habeas corpus proceeding for custody of minor the court could properly take judicial
II. Admissibility of the In-Court Identification
The second issue we consider is whether the victim’s in-court identification of the defendant was properly аdmitted, after the trial court had suppressed testimony concerning the out-of-court identification on the ground that the defendant’s sixth amendment right to counsel had been violated.
See
Evidence at the suppression hearing indicated the following. On the evening of February 13, 1980, thе victim went to a restaurant known as “Richard’s 88” in Salem, New Hampshire, to meet friends and celebrate her birthday. She left the restaurant shortly after midnight and went to her car. As she was unlocking her car door, a man assaulted her and forced her into the car. While her assаilant was trying to start the car, she tried to escape, but was immediately tackled from behind and pushed back into the car. The assailant then forced her at knife point to drive southerly on Route 28 towards Methuen, Massachusetts.
The restaurant parking lot and Route 28 were well-illuminated at the time, and the victim had ample opportunity to observe the man sitting next to her in the car. She had further opportunity to observe him when he forced her to stop at a car dealer’s lot so that he could take over the driving. Again, he was unаble to start the car, and he forced her to drive further south on Route 28. When they arrived in the vicinity of the Methuen Police Department, the victim suddenly turned into the police station parking lot, leaned on the automobile’s horn, jammed on the brakes, exited the car and ran into the police station. She told the police that she had been assaulted and described her assailant as “a very light black man with a khaki green colored jacket and freckles.” The police undertook a search for the assailant and, approximately ten to fifteen minutes later, arrested the defendant near the police station. The defendant fit the description given by the victim. The police took him to the police station for questioning. After advising the victim that they would bring somebody in for identification, they took the defendant to the room where the victim was present with her parents. She immediately and positively identified the defendant as her assailant.
Once an out-of-court identification has been suppressed, in order for a subsequent in-court identifiсation to be allowed, the State must prove by clear and convincing evidence that “the in-court identification ha[d] an independent source and [was] not
“The tests of independent origin set forth in Wade appear to be functionally identical to the reliability test articulated in Neil v. Biggers [409 U.S. 188 (1972)].” Solomon v. Smith, 645 F.2d at 1188. Biggers sets forth the factors to be considered in determining the reliability of an out-of-сourt identification when suggestive police procedures have been used. Neil v. Biggers, 409 U.S. at 199-200; see State v. Gonzales, 120 N.H. 805, 807-08, 423 A.2d 608, 610 (1980) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)).
In the present case, the trial court applied the Biggers factors to establish that the victim had an independent source for her in-court identification of the defendant and should therefore be permitted to identify the defendant at trial.
Although the trial court stated that it applied the Biggers fаctors, in effect it applied the burden of proof and the factors set out in Wade. See Solomon v. Smith, 645 F.2d at 1188.
The trial court decision permitting the in-court identification was based on the following findings:
“The Court feels there is clear and convincing evidence that indicates that [the victim] had an opportunity throughout the incident following being tackled in the parking lot and being pushed in the car to observe and converse with the defendant. She remarked on the fact that even when her head was pushed against the window, she was able to look to the side and tо see him. She remarked on the lighting, that it was a well lighted area — meaning down Route 28, the Newman Ford parking lot, et cetera — as she was driving southbound. She was positive in her identification, and this all occurred during the incident. And the time factor was very short, meaning the twenty-minute ride, or twenty-plus-minute ride, and up until the time the one-on-one confrontation took place.”
Although the court made no express reference to “the accuracy of the description,” the evidence discloses that the victim’s description of her assаilant as a “very light black man,” with a “khaki green colored jacket and freckles” was very accurate. The defendant, when apprehended near the Methuen Police Station, closely fit the victim’s description.
The victim’s testimony at the suppression hearing fully suрported the court’s finding that the State had sustained its burden of proving that the victim had the ability to identify her assailant based on “an independent recollection of her initial encounter with the assailant, uninfluenced by the pretrial [identification] . . . .” United States v. Crews, 445 U.S. at 473. She had sufficient opрortunity to view the defendant and paid attention to him. As noted above, her description of him was accurate. Further, she identified the defendant “as soon as I looked at him.” The time between the crime and the first confrontation was approximately fifteen tо twenty minutes. See, e.g., State v. Heald, 120 N.H. 319, 323, 414 A.2d 1288, 1291 (1980) (out-of-court identification admitted where defendant identified within two-and-one-half days of crime); State v. Gonzales, 120 N.H. at 808, 423 A.2d at 610 (out-of-court identification admitted where defendant identified within twenty-four hours).
“[0]ur reliance on the fact that [she] identified [the defendant] in the out-of-court [confrоntation] is not intended to assign any independent evidentiary value to [that] [identification] for to do so would undermine the exclusionary rule’s objectives in denying the Government the benefit of any evidence wrongfully obtained. Rather, the accurate pre-trial identificаtion assume[s] significance only to the extent that [it] indicatefs] that the witness’ ability to identify [the defendant] antedated any police misconduct, and hence that in-court identification had an ‘independent source.’ ” Crews, supra at 473 n.18.
We hold that the trial court properly permitted the victim to identify the defendant at trial.
III. Jury Nullification
The defendant’s next claim is that the trial judge erred when, in
Although we are of the opinion that this may be an instruction best given only when it is requested by a defendant or when the nature of a particular case otherwise warrants it, in State v. Weitzman, 121 N.H. 83, 89-90, 427 A.2d 3, 7 (1981), we upheld an identical jury instruction, noting specifically that “[j]ury nullification is an historical prerogative of the jury. ...” Id. at 89, 427 A.2d at 7 (citing United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. Cir. 1972)).
“A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” State v. Belkner, 117 N.H. 462, 471, 374 A.2d 938, 944 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)). Before the trial judge gave the instruction in question to the jury, he clearly instructed them with respect to the State’s burden of proof:
“If you have a reasonable doubt as to whether the State has proved any one or more of the elements оf the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.”
(Emphasis added.)
Contrary to the defendant’s claim, the jury nullification instruction did not have the effect of lessening the State’s burden of proof. Rather, as was indicated by the trial court’s reasonable doubt charge, it, in effect, informed the jury that even if they found that the State had proved beyond a reasonable doubt all the elements of the offenses charged, they could still acquit the defendant.
See generally United States v. Dougherty,
473 F.2d at 1130-37. The court’s instructions to the jury thus precluded them from finding the defendant guilty, if the State had not met its burden of proving all the elements of the offenses charged beyond a reasonable doubt, but also left them the option of acquitting him if it was their “conscientious feeling” that a not-guilty verdict would be the “fair result” in the case, even if the State had met its burden of proof. We must assume that the jurors followed the court’s instructions.
Considered as a whole, the jury instructions did not tend to mislead the jury as to the State’s burden of proof, and wе therefore find no error. See State v. Wentworth, 118 N.H. 832, 841, 395 A.2d 858, 864 (1973) (citations omitted).
IV. Failure To Grant Requested Instruction
In his last argument, the defendant asserts that the trial court erred when it failed to give his requested instruction to the jury, that a reasonable doubt may arise not only from the evidence produced, but also from a “lack of evidence.” The defеndant relies on this court’s decision in State v. Aubert, 120 N.H. 634, 421 A.2d 124 (1980). In that case, we held that a trial court’s refusal to charge the jury on a party’s theory of defense, if such theory is supported by some evidence, is reversible error. Id. at 635, 421 A.2d at 125.
Unlike Aubert, the defendant here did not request a charge on a defense not mentioned in the court’s original instruction. Rather, he in effect requested that the court elaborate on its reasonable doubt charge by instructing the jury that reasonable doubt may arise not only out of all evidence presented but also out of “lack оf evidence.”
It is generally accepted that the trial court is not required to give such an instruction, but that it is within its discretion to do so. United States v. Caruso, 358 F.2d 184, 186-87 (2d Cir.), cert. denied, 385 U.S. 862 (1966); see United States v. Smith, 602 F.2d 834, 838-39 (8th Cir.), cert. denied, 444 U.S. 902 (1979); Foran v. Metz, 463 F. Supp. 1088, 1092 (S.D.N.Y.), aff’d, 603 F.2d 212 (2d Cir. 1979).
The reasonable doubt charge, as given by the trial court, employed the language we require under State v. Wentworth, 118 N.H. at 838-39, 395 A.2d at 862-63. In its entirety, the instruction conveyed the correct concept of reasonable doubt. Id. at 837, 395 A.2d at 862; State v. Belkner, 117 N.H. at 471, 374 A.2d at 944; see also Foran v. Metz, 463 F. Supp. at 1092. Accordingly, we hold that the trial court did not abuse its discretion in declining to instruct the jury as requested.
Exceptions overruled; affirmed.
All concurred.