State v. Chase

600 A.2d 931, 135 N.H. 209, 1991 N.H. LEXIS 169
CourtSupreme Court of New Hampshire
DecidedDecember 31, 1991
DocketNo. 90-410
StatusPublished
Cited by14 cases

This text of 600 A.2d 931 (State v. Chase) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Chase, 600 A.2d 931, 135 N.H. 209, 1991 N.H. LEXIS 169 (N.H. 1991).

Opinion

BATCHELDER, J.

The defendant appeals from the denial by the Superior Court (Murphy, J.) of his motion for a new trial on the ground of ineffective assistance of counsel. Finding no error, we affirm.

The defendant was convicted of three counts of aggravated felonious sexual assault, RSA 632-A:2, X-a, and two counts of felonious sexual assault, RSA 632-A:3. All of the assaults were committed on Holly A. while she, her mother and two sisters were living with the defendant and his family. The aggravated felonious sexual assaults [211]*211were alleged to have been committed by the defendant through coercion by virtue of his position of authority as head of the household.

The first two incidents, the bases for the charges of felonious sexual assault, occurred in 1986, when Holly was fifteen years old. One day she was instructed by the defendant to stay home from school to baby-sit for his three-year-old child. At his request, Holly made him breakfast and joined him in his bedroom to watch television. He then told her to lock the door, sit next to him on the bed and perform fellatio. After she complied, he had sexual intercourse with her.

Two years later three more incidents occurred. On a morning in August 1988, the defendant told the children to go outside. Holly’s sister took the other four children to a nearby park, leaving Holly home alone with the defendant. He told Holly to lock the doors and join him in his bedroom, where he performed anal intercourse with her. Later that month the defendant told Holly to start doing laundry late one night and then had her perform fellatio in the laundry room. One night several weeks later, after everyone else was in bed, the defendant took Holly to his stepson Carl’s attic bedroom to play the guitar for her. After telling Carl to leave, the defendant took Holly into an adjoining storage area and had sexual intercourse with her.

Following his conviction, the defendant moved for a new trial, claiming ineffective assistance of counsel. He argued in superior court, as he does here, that his trial lawyer failed to interview certain witnesses and call them to testify, failed to fully examine the witnesses he did call, failed to preserve the record with respect to two unrecorded bench conferences, and inadequately cross-examined the victim. An evidentiary hearing was held on the defendant’s motion, at which four trial witnesses and two witnesses not produced at trial testified, in addition to defendant’s trial counsel. Upon hearing the evidence, and after reviewing the trial transcripts, the motion judge held that the defendant had not demonstrated that he had been prejudiced by counsel’s purported omissions and denied the motion.

The standard for measuring attorney performance, under the right to counsel provisions of both the Federal and State Constitutions, is one of reasonably effective assistance. State v. Fennell, 133 N.H. 402, 405, 578 A.2d 329, 331 (1990). Because the defendant rests his claim on both constitutions, we address it independently under the State Constitution, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), although, as the two standards are identical, “the analysis and result is the same under each constitution,” State v. Glidden, 127 N.H. 359, 361, 499 A.2d 1349, 1350 (1985).

[212]*212In considering an ineffectiveness claim, we “ ‘start with the strong presumption that counsel’s conduct falls within the limits of reasonable practice ... bearing in mind the limitless variety of strategic and tactical decisions that counsel must make.’” Fennell, supra at 405, 578 A.2d at 331 (quoting State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985) (citations omitted)). To prevail on a claim of ineffective assistance, the defendant must show both that counsel’s performance was deficient and that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Less than competent attorney performance, therefore, must actually result in prejudice to the defendant for an ineffectiveness claim to succeed; “[i]f the defendant is unable to demonstrate such prejudice, we need not even decide whether counsel’s performance fell below the standard of reasonable competence.” State v. Faragi, supra at 5, 498 A.2d at 726 (citing Strickland v. Washington supra).

Before turning to the merits of the defendant’s claim, we address his arguments that the motion judge erred in his application of the law. First, he contends that the court employed an incorrect test for determining prejudice. Although in the course of.its order the court stated the two-pronged Strickland v. Washington test, as set forth above, it concluded by stating “that defendant has failed to demonstrate a reasonable probability that he would have been acquitted had the evidence and testimony introduced at the evidentiary hearing before me been submitted to the jury.” (Emphasis added.) According to the defendant, because Strickland and Fennell require only a probability that the “result of the proceeding” would have been different in order to show prejudice, he would be entitled to a new trial if he could show a reasonable likelihood of a mistrial based on a hung jury. Thus reading “result” not to be equivalent to “verdict,” he argues that he should prevail if the additional evidence would have persuaded only one juror to acquit, and that he need not persuade all twelve.

We believe the defendant reads too much into the Strickland Court’s use of the term “result of the proceeding.” Strickland involved review not of a criminal conviction but of a capital sentencing proceeding, “which is sufficiently like a trial in its adversarial format and in the existence of standards for decision .. . that counsel’s role in the proceeding is comparable to counsel’s role at trial....” Strickland, supra at 686-87 (citation omitted). Because the standard for [213]*213ineffective assistance was therefore intended to apply to more than one type of proceeding, the generic term was obviously chosen deliberately. Moreover, in reviewing alleged ineffective assistance at a criminal trial, the United States Supreme Court has stated that a defendant must prove that “there is a reasonable probability that the verdict would have been different... in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (emphasis added); see also State v. Allegra, 129 N.H. 720, 728, 533 A.2d 338, 344 (1987) (to find ineffectiveness, court must be satisfied “to a degree of reasonable probability that [the defendant] was prejudiced by a verdict different from the verdict that would have followed [absent attorney error]”). Because a “verdict” in a criminal case can only be an acquittal or a conviction, see BLACK’S LAW DICTIONARY 1559 (6th ed.

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Bluebook (online)
600 A.2d 931, 135 N.H. 209, 1991 N.H. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chase-nh-1991.