State v. Croft

749 A.2d 1284, 145 N.H. 90, 2000 N.H. LEXIS 24
CourtSupreme Court of New Hampshire
DecidedApril 17, 2000
DocketNo. 98-163
StatusPublished
Cited by3 cases

This text of 749 A.2d 1284 (State v. Croft) 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. Croft, 749 A.2d 1284, 145 N.H. 90, 2000 N.H. LEXIS 24 (N.H. 2000).

Opinion

BRODERICK, J.

The defendant, Sean Croft, was convicted of first degree assault, see RSA 631:1 (1996), and aggravated felonious sexual assault, see RSA 632-A:2 (1996). We affirmed his convictions in State v. Croft, 142 N.H. 76, 696 A.2d 1117 (1997) (Croft I). He appeals the Superior Court’s (Fauver, J.) denial of his motion for new trial based on a claim of ineffective assistance of counsel under the State and Federal Constitutions. The defendant challenges only his conviction for aggravated felonious sexual assault, arguing that his trial counsel’s performance in handling two prosecution witnesses who testified against him was constitutionally deficient. We affirm.

[91]*91I

We recite the salient facts outlined in Croft I, 142 N.H. 76, 696 A.2d 1117, and otherwise presented in the record. On September 8, 1992, the defendant encountered the victim in a restaurant and gave her pills for a headache which he knew were prescription sedatives. Once she was unconscious, he brought her to his apartment where he brutally beat, stabbed, and raped her, and forced her to consume additional pills. The record suggests that two other men may also have been involved in the physical and sexual assaults.

After his arrest, the defendant confessed to police that he beat the victim but he denied raping her. At trial, the victim had virtually no memory of the physical and sexual assaults, recalling only that she was kicked in the throat and asked if she had “had enough.” A small amount of seminal fluid was found in the victim’s vagina, but the sample was not sufficient to allow a positive DNA identification. The only direct evidence identifying the defendant as the perpetrator of the sexual assault was the testimony of two witnesses, Shane Grant and Keith Stanley, who claimed he admitted committing the rape.

II

The State and Federal Constitutions guarantee a criminal defendant reasonably competent assistance of counsel. State v. Matiyosus, 134 N.H. 686, 687, 597 A.2d 1068, 1069 (1991). To successfully assert a claim for ineffective assistance of counsel, a defendant must show that counsel’s representation was constitutionally deficient and actually prejudiced the outcome of the case. State v. Seymour, 140 N.H. 736, 748, 673 A.2d 786, 795, cert. denied, 519 U.S. 853 (1996). To establish an ineffective assistance claim, a defendant must overcome the “strong presumption that counsel’s conduct [fell] within the limits of reasonable practice, bearing in mind the limitless variety of strategic and tactical decisions that counsel must make.” State v. Fecteau, 140 N.H. 498, 500, 667 A.2d 1384, 1387 (1995) (quotation and brackets omitted). The standard for determining whether counsel’s performance is constitutionally deficient is the same under both the State and Federal Constitutions. See State v. Dewitt, 143 N.H. 24, 29, 719 A.2d 570, 573 (1998). Therefore, we will examine the constitutional competency of trial counsel’s performance under the State Constitution only, see State v. Gonzalez, 143 N.H. 693, 703, 738 A.2d 1247, 1256 (1999), and rely on federal case law only for guidance, see State v. Drewry, 141 N.H. 514, 515-16, 687 A.2d 991, 993 (1996).

To show actual prejudice, a defendant must establish with reasonable probability “that the result of the proceeding would have [92]*92been different had competent legal representation [been provided].” State v. Henderson, 141 N.H. 615, 618, 689 A.2d 1336, 1339 (1997). The prejudice inquiry considers “the totality of the evidence before the judge or jury.” Id. at 618-19, 689 A.2d at 1339. The touchstone for prejudice under a federal constitutional analysis is “whether counsel’s performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair.” Gonzalez, 143 N.H. at 704, 738 A.2d at 1257 (quotation omitted). We need not decide whether the federal standard for actual prejudice meaningfully differs from the standard under the State Constitution because we conclude that counsel’s performance was adequate with respect to one witness, and that the defendant failed to establish actual prejudice under either constitutional standard with respect to the other witness. See id.

Ill

The defendant first faults trial counsel for not calling Brian Ellis, an inmate, as a witness to contradict the testimony of another inmate, Shane Grant. Both Ellis and Grant were incarcerated with the defendant during his pretrial confinement. Grant testified that while incarcerated, the defendant admitted beating and raping the victim, and that Ellis was present when the admission was made. The defendant advised the court that he intended to call Ellis to impeach Grant, and that Ellis would testify that the defendant never made any admissions in his presence. In response, the State said it would counter Ellis’ proposed testimony by offering the opinion of assistant county attorney Harry Starbranch that Grant had a truthful character and a reputation for honesty, and that Ellis was not a credible person. After a colloquy with counsel, the court said that Starbranch’s proposed testimony on Grant’s truthful character would probably be permitted pursuant to New Hampshire Rule of Evidence 608 if a proper foundation was presented. The defendant chose not to call Ellis as a witness and thus Starbranch never testified.

In his direct appeal in Croft I, the defendant challenged the court’s preliminary “ruling” on Starbranch’s proposed rebuttal testimony. Croft I, 142 N.H. at 78, 696 A.2d at 1120. In that appeal, we held that the Starbranch issue was not adequately preserved for appellate review because neither Ellis nor Starbranch testified and, accordingly, any claimed error was too speculative. Id. at 79, 696 A.2d at 1120. In his present appeal, the defendant asserts that his counsel’s performance at trial was constitutionally deficient because [93]*93he failed to properly preserve the Starbranch issue by calling Ellis as a witness. He contends that had Ellis testified, the trial court likely would have permitted Starbranch to vouch for Grant’s truthfulness, a clearly erroneous ruling which would have led to a reversal of his sexual assault conviction and a new trial. We disagree.

Defense counsel must engage in numerous tactical and strategic decisions during trial. When faced with the question of whether to call Ellis, the record reveals that trial counsel had to weigh a number of factors and risks. While Ellis apparently would have testified that the defendant never made the admission Grant described, possibly creating doubt as to whether the admission ever occurred, the trial court indicated that subject to a proper foundation, it might allow Starbranch to rebut Ellis by vouching for Grant’s truthfulness.

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Bluebook (online)
749 A.2d 1284, 145 N.H. 90, 2000 N.H. LEXIS 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-croft-nh-2000.