State of Maine v. Matthew R. Davis

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 116
Docket: Aro-17-125
Argued: May 15, 2018
Decided: August 14, 2018

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.


STATE OF MAINE

v.

MATTHEW R. DAVIS


GORMAN, J.

[¶1] Matthew R. Davis appeals from a judgment of conviction entered by

the trial court (Aroostook County, Hunter, J.) for a total of ten charges—two

counts of intentional or knowing murder, 17-A M.R.S. § 201(1)(A) (2017); four

counts of arson (Class A), 17-A M.R.S. § 802(1)(A) (2017); one count of theft

(Class B), 17-A M.R.S. § 353(1)(B)(1) (2017); two counts of theft (Class C), 17-A

M.R.S. § 353(1)(B)(4) (2017); and one count of aggravated criminal mischief

(Class C), 17-A M.R.S. § 805(1)(A) (2017)—after a jury trial. Davis contends

that the court erred by denying his motion in limine that sought to exclude

certain identification testimony.1 He argues that the out-of-court identification

1 Davis also argues that the court erred by denying his request to present rebuttal expert witness

testimony regarding the unreliability of eyewitness identifications and that the evidence was
2

was produced by an impermissibly suggestive procedure that rendered the

testimony unreliable and therefore inadmissible. We conclude that the court

did not err by allowing the jury to consider the identification testimony because

the witness’s identification was independently reliable and we therefore affirm

the judgment.

I. BACKGROUND

A. The Events of September 23, 2013

[¶2] “Viewed in the light most favorable to the jury’s verdict, the

evidence in the record supports the following facts.” State v. Fahnley, 2015 ME

82, ¶ 2, 119 A.3d 727. In the early morning hours of September 23, 2013, Davis

drove his tow truck through the gate at Katahdin Forest Products in Oakfield.

Thereafter, he backed the tow truck into one of Katahdin’s buildings and broke

into and set fire to another of Katahdin’s buildings. Davis then stole a pickup

truck owned by Katahdin and fled.

[¶3] After driving only about a half mile, Davis stopped at Heidi Pratt and

Michael Kitchen’s home in Oakfield. There he broke into the house and shot

insufficient for the jury to find every element of each offense beyond a reasonable doubt. We find
these arguments unpersuasive and do not address them further.
3

and killed both Pratt and Kitchen. Davis then started a fire inside the house, set

fire to the Katahdin pickup truck, and went into Pratt and Kitchen’s garage.

[¶4] Inside the garage, Davis broke into a pickup truck owned by

Kitchen’s family business and backed that truck through the closed garage door.

As Davis crashed through the garage door, one of Pratt and Kitchen’s neighbors

saw Davis driving the truck. Davis fled from Pratt and Kitchen’s property in the

truck and, after driving approximately four miles, parked the truck near a camp

on Mattawamkeag Lake. Davis broke into the camp’s garage and stole a kayak

and a paddle. Before leaving the camp, he set fire to Kitchen’s truck. Davis then

paddled the kayak to the other side of Mattawamkeag Lake where he broke into

a camp on Beaver Dam Point Road.

[¶5] Later that morning, Davis stole a car from a different property off

Beaver Dam Point Road. By this time, the discovery of Davis’s tow truck at the

site of the Katahdin Products fire caused Maine State Troopers to be in the area

and looking for him. A State Trooper stopped the car Davis was driving on

Beaver Dam Point Road. After positively identifying Davis, the trooper took him

into custody.

[¶6] Based on those events, a grand jury (Aroostook County) indicted

Davis on November 7, 2013, charging him with two counts of intentional or
4

knowing murder, 17-A M.R.S. § 201(1)(A); four counts of arson (Class A), 17-A

M.R.S. § 802(1)(A); one count of theft (Class B), 17-A M.R.S. § 353(1)(B)(1); two

counts of theft (Class C), 17-A M.R.S. § 353(1)(B)(4); and one count of

aggravated criminal mischief (Class C), 17-A M.R.S. § 805(1)(A).

B. Motion in Limine and Trial

[¶7] On August 11, 2014, Davis moved in limine for the court to exclude

any identification testimony from the neighbor who saw Davis crash through

Pratt and Kitchen’s garage door and then flee in the truck. Two years later, on

August 11 and 16, 2016, the court (Hunter, J.) held testimonial hearings related

to the motion in limine. By order dated August 18, 2016, the court made the

following findings of fact, which are supported by competent evidence in the

motion record. See State v. Prinkleton, 2018 ME 16, ¶ 2, 178 A.3d 474.

[¶8] At approximately 4:00 a.m. on September 23, 2013, Pratt and

Kitchen’s next-door neighbors awoke to the sound of multiple gunshots. They

went outside to see what was happening and saw that Pratt and Kitchen’s home

was on fire. As one of the neighbors got close to the home, a truck crashed

through the garage door. The area where the truck came through the door was

lit up by an exterior light located at the center peak of the garage. In order to
5

determine if the driver was either Pratt or Kitchen, the neighbor looked

through the truck’s windshield and “locked eyes” with the truck’s driver.

[¶9] The neighbor was standing several feet from the front of the vehicle

when it crashed through the garage door, and he looked directly at the driver

of the truck for approximately four seconds. He did not immediately recognize

the driver but could tell that it was neither Pratt nor Kitchen. As the vehicle

sped out of the driveway, both neighbors ran back toward their house and

called 9-1-1. Later that morning, law enforcement officers spoke with the

neighbor who had locked eyes with the driver (the witness) and the witness

said that he did not know the identity of the driver, but he described the driver

as a white male with a light complexion, no facial hair, a short “buzzed off”

haircut, and really big eyes.

[¶10] When Davis was taken to the Aroostook County Jail on

September 24, 2013, the Aroostook County Sheriff’s Department took a

“booking photo” of him. Shortly thereafter, the Maine State Police issued a

press release indicating that Davis had been arrested in connection with Pratt

and Kitchen’s deaths. This press release caused various news media outlets to

request the booking photo from the jail, and, pursuant to its policy, the jail

released the booking photo, which depicted Davis’s face and shoulders as well
6

as the “standard orange jail clothing” he was wearing. The Bangor Daily News

then posted Davis’s photograph on its Facebook page.

[¶11] Before detectives had a chance to meet with the witness to show

him a photographic lineup, an acquaintance informed him that the Bangor Daily

News had posted a photograph of the suspect on its Facebook page. The

witness went to the Facebook page and instantly recognized Davis as the man

he saw driving the pickup truck out of Pratt and Kitchen’s garage the previous

morning.

[¶12] When a detective did meet with the witness on the afternoon of

September 24, 2013, the witness told him that he had already seen Davis’s

booking photograph on Facebook. Rather than attempting to show the

neighbor a photographic array at that point, the detective took a statement in

which the witness indicated that he was one hundred percent certain that Davis

was the man he saw through the truck windshield.

[¶13] In ruling on Davis’s motion in limine to bar the witness’s

out-of-court identification of Davis from being admitted at trial, the court

applied to these factual findings the two-part test articulated in State v. Nigro,

2011 ME 81, ¶¶ 21-23, 24 A.3d 1283. First, the court concluded that the jail’s

release of Davis’s booking photograph constituted “state action.” Although it
7

determined that the State was not attempting to “overtly and impermissibly

suggest” to the witness that Davis committed the crimes at issue, the court

concluded that Davis had proved by a preponderance of the evidence that the

process by which the witness viewed Davis’s booking photograph online was

impermissibly suggestive. After shifting the burden to the State, the court

concluded that the State proved by clear and convincing evidence that the

witness’s identification of Davis was nonetheless independently reliable. The

court denied Davis’s motion in limine, permitting the witness to provide

identification testimony at trial.

[¶14] Following an eleven-day jury trial in December of 2016,2 the jury

returned a guilty verdict on all ten counts. On February 10, 2017, the court

sentenced Davis to concurrent life sentences for the murders of Michael

Kitchen and Heidi Pratt and concurrent sentences on the remaining

2 Davis was indicted in Aroostook County, but the jury trial took place in Washington County after

the court (Hunter, J.) granted Davis’s motion to change venue.
8

convictions. Davis appeals.3 See 15 M.R.S. § 2115 (2017); M.R. App. P.

2(b)(2)(A) (Tower 2016); see also M.R. App. P. 2B(b)(1).4

II. DISCUSSION

[¶15] Davis argues that the court erred by denying his motion in limine

and permitting the witness to testify about seeing him crash the truck through

Pratt and Kitchen’s garage and then flee in the truck. He challenges the court’s

admission of the identification testimony on two grounds. First, on due process

grounds, he argues that the jail’s release of his booking photograph constituted

improper state conduct that led to an impermissibly suggestive identification

procedure rendering the witness’s identification unreliable and therefore

inadmissible. Second, he contends that, even absent improper state conduct,

the process by which the witness identified Davis was impermissibly

suggestive and that the court erred by not excluding the testimony on

evidentiary grounds. We address Davis’s arguments in turn and review the trial

court’s factual findings for clear error, its legal conclusions de novo, and its

3 On February 24, 2017, Davis filed a separate application to appeal his sentence. See 15 M.R.S.

§ 2151 (2017); M.R. App. P. 20 (Tower 2016). The Sentence Review Panel granted Davis’s application
on April 24, 2017, and ordered that the sentence review would be considered along with the merits
of this direct appeal. Because Davis has elected not to challenge his sentences in this appeal, the
sentence review application has been effectively withdrawn.
4 The Maine Rules of Appellate Procedure were restyled and are effective for appeals commenced

on or after September 1, 2017. See M.R. App. P. 1 (restyled Rules). Davis filed this appeal before
September 1, 2017, thus the restyled Rules of Appellate Procedure do not apply.
9

ultimate decision to deny the motion in limine for an abuse of discretion.5 See

Nigro, 2011 ME 81, ¶ 21, 24 A.3d 1283; State v. Rickett, 2009 ME 22, ¶ 9, 967

A.2d 671.

A. Due Process and State Action

[¶16] When a criminal defendant challenges the reliability of a witness’s

identification on due process grounds, we apply a two-part test to determine

whether the witness’s “out-of-court identification should be admitted in

evidence.” Nigro, 2011 ME 81, ¶ 21, 24 A.3d 1283; see State v. Kelly, 2000 ME

107, ¶ 19, 752 A.2d 188; State v. True, 464 A.2d 946, 950 (Me. 1983). As we

explained in Nigro,

First, the defendant must prove, by a preponderance of the
evidence, that the identification procedure was suggestive. Second,
if the court finds that the procedure was suggestive, the State then
bears the burden of proving, by clear and convincing evidence, that
in the totality of the circumstances the identification, although
made under a suggestive procedure, is nevertheless reliable.

5 Although Davis brought his challenge to the witness’s identification pursuant to a motion in

limine, see M.R.U. Crim. P. 12(c), his primary argument that the admission of the identification
testimony obtained through alleged State action would violate his due process rights could have been
appropriately raised in a motion to suppress. See M.R.U. Crim. P. 41A(a)(4) (“A defendant may move
to suppress as evidence any . . . out-of-court or in-court eyewitness identifications of the defendant.”).
When challenging evidence “on the ground that it was illegally obtained,” such as in violation of due
process, the proper procedural motion is a motion to suppress. See M.R.U. Crim. P. 41A(a). Here,
where Davis is claiming a violation of due process and, alternatively, challenging the admissibility of
evidence on evidentiary grounds, a motion in limine is also appropriate. See M.R.U. Crim. P. 12(c).

10

2011 ME 81, ¶ 21, 24 A.3d 1283 (citations omitted) (quotation marks omitted).

If the defendant meets his burden of proof as to the first step, an identification

may still be admissible if the State proves by clear and convincing evidence that

the “reliability [of the witness’s identification] outweighs the corruptive

influence of the suggestive procedure.” Id. ¶ 23.

[¶17] This test, articulated by the United States Supreme Court in Neil v.

Biggers, 409 U.S. 188, 198-201 (1972), is grounded in a criminal defendant’s

due process rights, pursuant to the United States Constitution.6 See True, 464

A.2d at 949-50. The purpose of the test is to “protect a criminal defendant from

the use against him at trial of an out-of-court identification that is conducive to

an irreparable mistaken identification or so impermissibly suggestive as to give

rise to a very substantial likelihood of irreparable misidentification.” Id.

(citation omitted) (quotation marks omitted). “The ultimate concern is the

reliability of the out-of-court identification.” Id. at 950.

[¶18] At the first step, a defendant can meet his burden by proving by a

preponderance of the evidence that the identification procedure “tended to

increase the likelihood of misidentification.” Kelly, 2000 ME 107, ¶ 19, 752 A.2d

188 (quotation marks omitted). We have explained that “[a]mong the most

6 U.S. Const. amend. XIV, § 1.
11

suspect of all procedures is a confrontation in which a single subject is

presented to the witness [by the State] in such a way that the witness knows

that the police believe that subject to be the perpetrator of the crime.” True,

464 A.2d at 950. The danger of such a suggestive identification procedure “is

that the witness, eager to cooperate with the police . . . will subtly alter his or

her own recollected image of the perpetrator’s appearance and other

characteristics to match those of the suspect presented.” Id.

[¶19] In addition to proving that the procedure was suggestive, however,

a defendant making a due process argument must prove at this initial step that

the suggestive procedure was precipitated by “improper state conduct.” Perry

v. New Hampshire, 565 U.S. 228, 241, 245 (2012) (“The due process check for

reliability . . . comes into play only after the defendant establishes improper

police conduct.” (emphasis added)); see also Sexton v. Beaudreaux, 138 S. Ct.

2555, 2559 (2018). Because “[d]ue process of law is another name for

governmental fair play,” In re Stanley, 133 Me. 91, 95, 174 A. 93 (1934)

(emphasis added), the defendant must prove that the State acted improperly

with regard to the identification procedure. Perry, 565 U.S. at 232 (“We have

not extended pretrial screening for reliability to cases in which the suggestive

circumstances were not arranged by law enforcement officers.”).
12

[¶20] Thus, in the context of his due process challenge, Davis was

required to prove by a preponderance of the evidence that the suggestive

out-of-court identification was orchestrated by “improper state conduct.”7 Id.

at 245; see True, 464 A.2d at 950 (explaining that the test “first requires the trial

judge to determine whether the identification procedure used by law

enforcement personnel was suggestive” (emphasis added) (quotation marks

omitted)); State v. St. Onge, 392 A.2d 47, 50 (Me. 1978) (“The admissibility of

an out-of-court identification turns upon . . . whether the police used an

unnecessarily suggestive procedure in obtaining an out-of-court identification

. . . .” (emphasis added)).

[¶21] Our cases indicate that “improper state conduct,” Perry, 565 U.S. at

245, occurs when state actors—typically law enforcement officers—are

involved in influencing a witness’s out-of-court identification in an

impermissibly suggestive way. See e.g., Nigro, 2011 ME 81, ¶¶ 5, 22, 24 A.3d

1283 (concluding that the procedure used by the State was “clearly suggestive”

because an “MDEA agent” showed the confidential informant only two

7 Because we have “long adhered to the principle that the Maine Constitution and the Constitution

of the United States are declarative of identical concepts of due process,” State v. Rosado, 669 A.2d
180, 182 (Me. 1996) (quotation marks omitted), we decline to depart from the requirement that a
due process challenge to an out-of-court witness identification requires “improper state conduct,”
Perry v. New Hampshire, 565 U.S. 228, 245 (2012).
13

photographs and both were of suspects); St. Onge, 392 A.2d at 50 (explaining

that the State conceded the procedures were suggestive because the witness

“was not shown a photograph of anyone but the Defendant” and law

enforcement officers told the witness “that the subject of the photograph . . .

was ‘a good suspect’”). Conversely, when state actors do not arrange or

otherwise directly influence the witness’s identification in a suggestive way,

there is no “improper state conduct.” Perry, 565 U.S. at 245; see, e.g., Kelly, 2000

ME 107, ¶ 20, 752 A.2d 188 (concluding that the procedure was not

“suggestive” because “the driver was presented an array of photographs

without any improper, suggestive comments or other behavior by the detective”

(emphases added)); State v. Rolls, 599 A.2d 421, 423-24 (Me. 1991) (concluding

that the procedure was not suggestive because “[t]here were no suggestive

words used by the officers before [the witnesses] made the selection from the

lineup” that contained five men fitting the “descriptions of the attacker”

(emphasis added)); see also State v. Robinson, 2015 ME 77, ¶ 32 n.8, 118 A.3d

242 (rejecting an argument that the court should have applied the two-step test

for out-of-court witness identification because the test “focuses on government

misconduct in identification procedures” and “there was no government

misconduct involved in the [witness’s] identification”).
14

[¶22] Here, although the court found that the jail’s release of Davis’s

photograph was “state action,” it did not find that the State acted improperly,

explaining that “[t]here is no basis for the court to find” that law enforcement

officers “overtly and impermissibly suggest[ed] to any witness that the person

whose photo they released was guilty.” To the contrary, the court specifically

found that detectives never showed the witness a photograph of Davis.

Although the court did not find that the State acted in a way that could be

construed as directly suggesting to the witness that Davis was the individual

who the witness saw on the morning of September 23, 2013, the court

nevertheless concluded that Davis had “sustained his burden of proving to this

court by a preponderance of the evidence that [the witness] was

unintentionally exposed to an impermissibly suggestive identification

procedure” when he viewed Davis’s booking photograph online. Based on this

conclusion, the court proceeded to the second step of the Nigro test.

[¶23] To the extent the trial court’s decision includes a determination

that there was improper state action, that was error. See Perry, 565 U.S. at 248.

There was no “improper state conduct” here, id. at 245, when the jail released
15

a photograph of a suspect to a news outlet and took no other actions with

regard to the witness’s out-of-court identification.8

[¶24] Because this case is not about any improper state conduct, it does

not implicate due process concerns. In other words, the admission of the

witness’s out-of-court identification did not violate Davis’s due process rights

and Davis was not entitled to a pretrial determination of the reliability of the

identification on due process grounds. See id. at 248. That, however, does not

end our consideration of Davis’s arguments.

B. Reliability of Witness Identification

[¶25] Davis argues that pursuant to the Maine Rules of Evidence, even if

the State did not act improperly, the procedure by which the witness viewed

the booking photograph was suggestive and “conducive to an irreparable

mistaken identification,” True, 464 A.2d at 949 (quotation marks omitted), such

that the identification was wholly unreliable. We agree that trial courts can and

8 We note that other jurisdictions have reached the same conclusion under similar circumstances.

See, e.g., State v. Goudeau, 372 P.3d 945, 980 (Ariz. 2016) (“In sum, although police disseminated
Goudeau’s composite sketch and photo to the media, there is no evidence that police attempted to
influence any of these witnesses’ pretrial identifications, for example, by arranging for or
encouraging victims to view the media coverage.”); O’Connell v. State, 742 N.E.2d 943, 948 (Ind. 2001)
(“A witness’ viewing of a suspect’s photograph through the media does not ordinarily constitute an
impermissibly suggestive identification procedure because it is not engineered by prosecution or law
enforcement agencies.”); State v. Webster, 104 A.3d 203, 208 (N.H. 2014) (“Although law enforcement
may have disseminated the photograph to the media, absent evidence that law enforcement also
orchestrated the viewing of that photograph by a witness, there is no [improper] state action . . . .”).
16

should examine the reliability of a witness’s out-of-court identification that

involves highly suggestive behavior, even in circumstances that do not involve

“improper state conduct.” Perry, 565 U.S. at 245.

[¶26] As we have recently recognized, there is “a significant body of

scientific research” that has “provided new insights into the fallibility of

eyewitness identifications.” State v. Mahmoud, 2016 ME 135, ¶ 13, 147 A.3d

833. Additionally, our “ultimate concern,” True, 464 A.2d at 950, when a

defendant challenges an eyewitness identification is “that the jury not hear

eyewitness testimony unless that evidence has aspects of reliability,” Manson v.

Brathwaite, 432 U.S. 98, 112 (1977). Because “reliability is the linchpin in

determining the admissibility of identification testimony,” id. at 114, and “the

annals of criminal law are rife with instances of mistaken identification,” United

States v. Wade, 388 U.S. 218, 228 (1967), trial courts must allow litigants to test

the reliability of a witness’s out-of-court identification—pursuant to the Maine

Rules of Evidence—when the identification may have been tainted by

suggestive circumstances. As the New Jersey Supreme Court held nearly seven

years ago,

Because of the pivotal role identification evidence plays in criminal
trials, and the risk of misidentification and wrongful conviction
from suggestive behavior—whether by governmental or private
actors—a private actor’s suggestive words or conduct will require
17

a preliminary hearing . . . in certain cases to assess whether
the identification evidence is admissible.

State v. Chen, 27 A.3d 930, 942 (N.J. 2011).

[¶27] Pursuant to the Maine Rules of Evidence, trial courts serve an

important “gatekeeping function,” State v. Hinkel, 2017 ME 76, ¶ 8, 159 A.3d

854, by admitting only evidence that is relevant and competent, and that a jury

could determine is reliable, see M.R. Evid. 102, 104(a), 401-403, 601. Like any

other evidence, evidence of an out-of-court identification is admissible only if it

is relevant, competent, and reliable. If a witness’s out-of-court identification is

unreliable because of suggestive circumstances, that testimony may no longer

be relevant because it does not have “any tendency to make a fact more or less

probable.” M.R. Evid. 401; see M.R. Evid. 402. If a witness’s identification is

tainted by suggestive circumstances creating a “substantial likelihood of

irreparable misidentification,” True, 464 A.2d at 949-50 (emphasis added)

(quotation marks omitted), and a jury could not find that identification to be

independently reliable, the witness is not likely competent to testify because he

or she did not have a “reasonable ability to perceive” or “remember” the

suspect, M.R. Evid. 601(b)(3)-(4).

[¶28] Because unreliable identifications are likely to mislead a jury and

create unfair prejudice for defendants, the admission of an unreliable
18

identification into evidence would be error. See M.R. Evid. 403 (“The court may

exclude relevant evidence if its probative value is substantially outweighed by

a danger of . . . unfair prejudice [or] misleading the jury . . . .”); Commonwealth

v. Johnson, 45 N.E.3d 83, 90 (Mass. 2016) (“The danger of unfair prejudice arises

because the accuracy of an identification tainted by suggestive circumstances

is more difficult for a jury to evaluate.”).

[¶29] Just as is true with a preliminary ruling by the court that a witness

is competent to testify, see M.R. Evid. 601, or that an expert’s opinion satisfies

the foundational requirements for expert testimony, see M.R. Evid. 702, 703, a

court’s ruling that the identification evidence is worthy of the jury’s

consideration merely represents the threshold determination of admissibility.

It is up to the jury to decide what, if any, weight it should give to the admitted

identification testimony. See State v. Dube, 2016 ME 50, ¶ 13, 136 A.3d 93

(“Once the trial court has determined that a witness’s testimony is admissible,

[t]he weight and significance accorded the evidence and the evaluation of

witness credibility are the exclusive province of the jury.” (quotation marks

omitted)). Therefore, even when the court determines that identification

evidence is sufficiently reliable to be admissible, the defendant remains free to

contest and challenge the reliability of that evidence before the jury.
19

[¶30] Given these evidentiary principles, and the motion filed by Davis,

the trial court was required to examine the witness’s identification testimony

to ensure that it was relevant and competent, and that a jury could determine

it was reliable. After reviewing the evidence presented, the trial court correctly

determined that Davis proved by a preponderance of the evidence that the

circumstances surrounding the witness’s identification of him were suggestive.

See Nigro, 2011 ME 81, ¶ 22, 24 A.3d 1283. As discussed above, the witness

was informed by an acquaintance that there was an online photograph of the

individual the State arrested in connection with Pratt and Kitchen’s murders.

With that prompt, the witness viewed Davis’s photograph. Although the State

was not involved, the witness’s identification of Davis did occur after a

photograph of Davis was “presented to the witness in such a way that the

witness knows that the police believe that subject to be the perpetrator of the

crime.” True, 464 A.2d at 950; see Nigro, 2011 ME 81, ¶ 22, 24 A.3d 1283

(“Numerous courts, including our own, have condemned the display of a single

photograph as an inherently suggestive identification practice.”); Mysholowsky

v. New York, 535 F.2d 194, 197 (2nd Cir. 1976) (“We have consistently

condemned the exhibition of a single photograph as a suggestive practice . . . .”).
20

[¶31] Because circumstances were suggestive, the trial court

appropriately considered the independent reliability of the witness’s

identification. In that process, the court found that the State proved that (1) the

witness had an adequate opportunity to view the suspect for four seconds;

(2) the witness’s “attention was directed into the interior of the vehicle for a

very specific purpose”; (3) the witness’s initial description of a white male with

“buzzed off” hair, big eyes, and no facial hair was “reasonably consistent with

the photos taken of [Davis] subsequent to his arrest”; (4) the witness indicated

that he was one hundred percent certain Davis was the man he saw driving the

truck; and (5) “the passage of approximately a day and a half” was not “an

extended time period that . . . calls into question the reliability” of the witness’s

recollection.

[¶32] The court’s findings on these factors are supported by competent

evidence in the record, and we conclude that it did not err in its ultimate

conclusion that the witness’s out-of-court identification was reliable “in the

totality of the circumstances.” Kelly, 2000 ME 107, ¶ 19, 752 A.2d 188; see

Nigro, 2011 ME 81, ¶ 24, 24 A.3d 1283. After concluding that the witness’s

identification was reliable9—a conclusion supported by its findings and the

9 In those cases where a court determines that the identification evidence is admissible, the

defendant may request that the jury be instructed on “the fallibility of eyewitness identifications.”
21

record—the court did not abuse its discretion by deciding to admit the

identification testimony. See Nigro, 2011 ME 81, ¶¶ 21-23, 24 A.3d 1283. Thus,

we affirm the court’s judgment. See State v. Watson, 2016 ME 176, ¶ 10, 152

A.3d 152.

The entry is:

Judgment affirmed.



Tina Heather Nadeau, Esq. (orally), The Law Office of Tina Heather Nadeau,
PLLC, Portland, for appellant Matthew R. Davis

Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine


Aroostook County Superior Court docket number CR-2013-137
FOR CLERK REFERENCE ONLY

State v. Mahmoud, 2016 ME 135, ¶ 13, 147 A.3d 833. Davis made that request here, and the court
gave an appropriate instruction.