State v. Fecteau

667 A.2d 1384, 140 N.H. 498, 1995 N.H. LEXIS 178
CourtSupreme Court of New Hampshire
DecidedDecember 6, 1995
DocketNo. 94-273
StatusPublished
Cited by7 cases

This text of 667 A.2d 1384 (State v. Fecteau) 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. Fecteau, 667 A.2d 1384, 140 N.H. 498, 1995 N.H. LEXIS 178 (N.H. 1995).

Opinion

BROCK, C.J.

The defendant appeals from the Superior Court’s (Nadeau, C.J.) denial of his motion for a new trial. We affirm.

After a jury trial in Superior Court (Nadeau, J.), the defendant was convicted of one count of aggravated felonious sexual assault, see RSA 632-A:2 (1986 & Supp. 1990), one count of attempted aggravated felonious sexual assault, see RSA 629:1 (1986), and two counts of burglary, see RSA 635:1 (1986 & Supp. 1990). On direct appeal from those convictions, he argued that certain identification procedures employed by the police violated the State and Federal Constitutions, that the trial court erred in admitting evidence of his arrest for a similar offense, and that the trial court erred in denying his request for funds to transport an out-of-state witness. In State v. Fecteau, 133 N.H. 860, 587 A.2d 591 (1991), we concluded that the identification procedures were not unnecessarily suggestive, id. at 867-68, 587 A.2d at 595; that certain remarks included in his trial counsel’s opening statement “opened the door” to the admissibility of evidence of the defendant’s arrest on a similar burglary charge, id. at 874, 587 A.2d at 599; and that the defendant failed to demonstrate that the out-of-state witness, his former wife, was a necessary witness, id. at 875-76, 587 A.2d at 599-600.

The defendant’s subsequent motion for a new trial, alleging ineffective assistance of counsel and newly discovered evidence, was denied by the trial court after a hearing. On appeal, the defendant asserts that his trial counsel was ineffective because she (1) opened the door to the admissibility of evidence otherwise inadmissible under New Hampshire Rule of Evidence 404(b) by remarks in her opening statement, (2) failed to present exculpatory evidence, and (3) failed to present the testimony of his former wife. He also argues that the trial court abused its discretion when it denied his motion to bifurcate the hearing on his motion for a new trial geographically [500]*500and temporally so as to facilitate his presentation of new evidence. The newly discovered evidence he offers is an affidavit from a former Dover Police Officer relating to the legality of the identification procedures used during the Dover Police investigation of the defendant.

I. Ineffective Assistance of Counsel

The defendant bases his claim of ineffective assistance of counsel on part I, article 15 of the New Hampshire Constitution and on the sixth and fourteenth amendments to the United States Constitution. We will address the question under the State Constitution independently, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), referring to federal cases only for their assistance in analyzing the State issue. State v. Glidden, 127 N.H. 359, 361, 499 A.2d 1349, 1350 (1985). Because the State Constitution provides the defendant at least as much protection as does the Federal Constitution in this area, State v. Sanchez, 140 N.H. 162, 163, 663 A.2d 629, 630 (1995), we need not conduct a separate federal analysis. See Lockhart v. Fretwell, 506 U.S. 364 (1993).

The State Constitution entitled the defendant to the “reasonably competent assistance of counsel” at his trial. State v. Matiyosus, 134 N.H. 686, 687, 597 A.2d 1068, 1069 (1991). To demonstrate a violation of this right, the defendant must show that his trial “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” State v. Anaya, 134 N.H. 346, 351, 592 A.2d 1142, 1145 (1991) (quotation omitted).

This test contains two prongs: the defendant must show that his attorney’s performance was deficient, or not reasonably competent, and that the deficient performance resulted in actual prejudice to the outcome of the defendant’s trial. This actual prejudice must rise to such a level that there is a reasonable probability that the result of the proceeding would have been different. If the defendant is unable to demonstrate such prejudice, we need not even decide whether counsel’s performance was deficient.

Sanchez, 140 N.H. at 163, 663 A.2d at 630 (citations, quotations, brackets, and ellipses omitted). When we review the performance of trial counsel, we begin with a “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.” State v. Chase, 135 N.H. 209, 212, 600 A.2d 931, 933 (1991) (quotation and ellipsis omitted).

[501]*501The defendant first contends that his trial counsel was ineffective because she “opened the door” to the admissibility of evidence relating to his arrest on similar charges after the commission of the crimes in the instant case, but before his trial. Prior to trial, the court ruled that evidence of the defendant’s arrest and conviction for burglary, the underlying facts of which were very similar to the charged acts in this case, would be excluded. See Fecteau, 133 N.H. at 873-74, 587 A.2d at 598-99; State v. Fecteau, 132 N.H. 646, 568 A.2d 1187 (1990). In her opening statement, however, trial counsel referred to the difficulty encountered by the local police in investigating the crimes, which resulted in their temporary suspension of the investigation, and then stated:

The issue in this case is how [the defendant] ever came to be charged with these crimes. Before he was arrested for these crimes, he had never, never met [either of the victims]; never had any contacts with them. The real issue in this case is the way in which the police made up their mind about the guilt of [the defendant].
So at this point, the police had no leads. What they were left with was no clear description of the man and no composite. And you will hear that a few weeks later, the case was suspended because there were no leads and there were no suspects.
Several weeks after the ease was suspended, the Dover Police came into contact with [the defendant] through their investigation of an unrelated matter. And they began to try [to] build a case against him on this case. . . . You will hear that one of the officers put together a photographic lineup that included [the defendant’s] photo, and at that point, the case was reopened.

(Emphasis added.)

As we discussed in the defendant’s direct appeal, the emphasized remarks opened the door to the admissibility of the defendant’s burglary arrest. Fecteau, 133 N.H. at 874, 587 A.2d at 599.

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Cite This Page — Counsel Stack

Bluebook (online)
667 A.2d 1384, 140 N.H. 498, 1995 N.H. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fecteau-nh-1995.