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.			
