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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2006-418 THE STATE OF NEW HAMPSHIRE v. DANIEL KING Argued: June 14, 2007 Opinion Issued: October 30, 2007 Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. James T. Brooks, assistant appellate defender, of Concord, on the brief and orally, for the defendant. HICKS, J. The defendant, Daniel King, appeals a decision of the Superior Court (Smukler, J.) denying his motion to suppress the victim's incourt identifications. We affirm. The record supports the following facts. Between 7:00 and 7:30 p.m. on October 11, 2003, fifteen-year-old K.C. was working at the Dunkin' Donuts drive-through window on Loudon Road in Concord. A man ordered a large coffee. When K.C. approached the window, she noticed that the man's genitals were exposed. K.C. turned around to put money in the register and turned back towards the man to give him his coffee. She again noticed that the man's genitals were exposed. K.C. informed her supervisor, Derrick Williams, of what

she had seen and he advised her to write down the man's license plate number. She leaned out the window, saw a car parked in front of a trashcan and wrote down the plate number. Williams contacted the police and Sergeant Ranee Boyd arrived shortly thereafter. K.C. provided Sergeant Boyd with a description of the man and his license plate number. The number was registered to a Ford Taurus wagon owned by the defendant. Loudon Police Corporal Barrett Moulton spoke with the defendant at his residence that night. The defendant denied driving into Concord that day. On October 16, 2003, Concord Police Detective John Thomas met with K.C. at her school and showed her a photo array containing eight black and white pictures. Although K.C. was unable to positively identify a suspect, she narrowed her choices to two suspects, one of whom is the defendant. K.C. expressed her uncertainty in further narrowing her choice, but ultimately selected the photograph of the other suspect. Concord Police Detective Todd Flanagan later interviewed the defendant at his workplace, at which time he admitted being at Dunkin' Donuts on October 11, 2003, but claimed that he merely turned around in the parking lot. When the detective questioned whether he could have accidentally exposed his genitals when he went through the drive-through, the defendant acknowledged that he might have done so accidentally. On May 7, 2004, K.C. attended the defendant's trial for indecent exposure in Concord District Court. She was sitting in the gallery when the defendant entered the courtroom. According to K.C., when she saw the defendant at the court, she had "a flashback to the night of Dunkin Donuts and it just clicked that that was the man." During her trial testimony in the district court, she identified the defendant as the man who had exposed himself to her. The defendant was convicted in the district court and he appealed to the superior court for a de novo trial. Prior to the trial, the defendant filed a motion to suppress K.C.'s district court identification and prevent her from testifying. The defendant argued that since K.C. failed to identify the defendant from the photo array, any in-court identification of the defendant was impermissibly suggestive and unreliable under the due process analysis set forth in Neil v. Biggers, 409 U.S. 188, 199200 (1972). The court held that K.C.'s identification was not unnecessarily suggestive because the court proceedings were necessary to the trial and the defendant "had a constitutional right to be confronted by his accuser . . . and in fact his rights would have been compromised had he not been confronted by his accuser." K.C. testified at the trial de novo and again identified the defendant as the man who had exposed himself to her. The jury found the defendant guilty.

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On appeal, the defendant argues, citing Part I, Article 15 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution, that the admission of K.C.'s identifications of him violated his due process rights. We first address the defendant's claims under our State Constitution, citing federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231, 233 (1983). In general, "[i]t is the likelihood of misidentification which violates a defendant's right to due process." Biggers, 409 U.S. at 198. The defendant contends that "the conditions surrounding K.C.'s identification of him at Concord District Court were unnecessarily suggestive, rendering [that] identification, as well as any future identification, unreliable." The district court identification raises two questions: first, whether it was unnecessarily suggestive on its own; and second, whether it was tainted by the prior photo array. The defendant first challenges the conditions of the district court identification itself. He asserts that "[w]hat occurred there was a one-man showup": When K.C. arrived at the Concord District Court, she knew what the proceeding was about, and she fully-expected [sic] to see the perpetrator. Aside from people directly involved in [the defendant's] case, the courtroom was empty. While K.C. sat in the courtroom, she observed a sheriff bring [the defendant] into the courtroom. She saw that [the defendant] was wearing a prison jumpsuit, and she saw him escorted to the defendant's table. (Citations omitted.) The defendant also contends that the propriety of the district court identification should be analyzed under the two-step analysis "commonly referred to as the `Biggers' test." See Biggers, 409 U.S. 188. We described the two-step analysis as follows in State v. LaRose, 127 N.H. 146 (1985): Initially, we inquire into whether the identification procedure was impermissibly or unnecessarily suggestive. At this stage of the inquiry, the defendant has the burden of proof. Only if the defendant has met his burden must we then consider the factors enumerated in Neil v. Biggers . . . to determine whether the identification procedure was so suggestive as to render the identification unreliable and, hence, inadmissible. At this stage of the inquiry, the State bears the burden.

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LaRose, 146 N.H. at 150 (citations omitted); see Biggers, 409 U.S. at 199-200 (listing, among the "factors to be considered in evaluating the likelihood of misidentification," the witness' opportunity "to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation"). As we noted in LaRose, this test is used to determine "the admissibility of an out-of-court identification." LaRose, 127 N.H. at 150 (emphasis added). We have also noted that if an out-of-court identification is found inadmissible under this test, a subsequent in-court identification will also be inadmissible, id., unless it "did not result from the earlier confrontation . . . but was independent thereof." State v. Ober, 116 N.H. 381, 383 (1976). We have not yet, however, explicitly considered whether this two-step analysis applies to a strictly in-court identification not preceded by an impermissibly suggestive pretrial confrontation. Cf. id. at 383-84 (applying Biggers factors to determine whether witness had grounds to identify defendant independent of challenged procedure at the outset of trial in which defendant was asked by the court clerk to stand). Other courts have noted that Biggers and the line of United States Supreme Court cases preceding it dealt with the exclusion of impermissible pretrial identifications and the in-court identifications that follow them. See, e.g., United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987). "None of these cases has set any guidelines for in-court identification procedures nor indicated that in-court identification must be made in a way that is not suggestive." Id. Accordingly, "the majority of courts have [concluded] that Neil v. Biggers does not apply to in-court identifications." State v. Lewis, 609 S.E.2d 515, 518 (S.C. 2005). But see United States v. Hill, 967 F.2d 226, 232 (6th Cir.) (holding "that the Biggers analysis applies to . . . in-court identifications for the same reasons that the analysis applies to impermissibly suggestive pre-trial identifications"), cert. denied, 506 U.S. 964 (1992). The court in Domina explained the differences between initial pretrial and in-court identifications that justify different treatment in determining their admissibility: The concern with in-court identification, where there has been suggestive pretrial identification, is that the witness later identifies the person in court, not from his or her recollection of observations at the time of the crime charged, but from the suggestive pretrial identification. Because the [fact finder is] not present to observe the pretrial identification, [the fact finder is] not

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able to observe the witness making that initial identification. The certainty or hesitation of the witness when making the identification, the witness's facial expressions, voice inflection, body language, and the other normal observations one makes in everyday life when judging the reliability of a person's statements, are not available to the [fact finder] during this pretrial proceeding. There is a danger that the identification in court may only be a confirmation of the earlier identification, with much greater certainty expressed in court than initially. When the initial identification is in court, . . . [t]he [fact finder] can observe the witness during the identification process and is able to evaluate the reliability of the initial identification. Domina, 784 F.2d at 1368 (citation omitted). In addition to affording the fact finder the opportunity to observe and assess the identification itself, an initial in-court identification is subject to immediate challenge through cross-examination. See Baker v. Hocker, 496 F.2d 615, 617 (9th Cir. 1974). "Where a witness first identifies the defendant at trial, defense counsel may test the perceptions, memory and bias of the witness, contemporaneously exposing weaknesses and adding perspective in order to lessen the hazards of undue weight or mistake." People v. Rodriguez, 480 N.E.2d 1147, 1151 (Ill. App. Ct. 1985), cert. denied, 475 U.S. 1089 (1986). Counsel can also "argue in summation as to factors causing doubts as to the accuracy of the identification

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