State v. Killam

626 A.2d 401, 137 N.H. 155, 1993 N.H. LEXIS 55
CourtSupreme Court of New Hampshire
DecidedApril 28, 1993
DocketNo. 92-015
StatusPublished
Cited by8 cases

This text of 626 A.2d 401 (State v. Killam) 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. Killam, 626 A.2d 401, 137 N.H. 155, 1993 N.H. LEXIS 55 (N.H. 1993).

Opinion

BROCK, C.J.

The defendant, Duane Killam, was found guilty after a jury trial in the Superior Court (Perkins, J.) on two counts of aggravated felonious sexual assault. RSA 632-A:2 (Supp. 1989). He filed a motion for a new trial alleging ineffective assistance of counsel and newly discovered evidence. The trial court conducted a hearing and denied the motion in an extensive written order. On appeal, the defendant claims that the trial court erred when it (1) found that defendant’s counsel was not ineffective, and (2) failed to grant a new trial based on new evidence. We affirm.

The defendant was convicted for sexually assaulting his five-year-old stepdaughter during the summer of 1985. The facts that led to his conviction are detailed in State v. Killam, 133 N.H. 458, 578 A.2d 850 (1990), and need not be repeated here.

Our holding in Killam is relevant to the current appeal. The defendant bases his ineffective assistance claim on his counsel’s decision not to object immediately to the introduction of certain evidence at trial. Prior to trial, the prosecution filed a motion in limine, to which-the defendant objected, seeking the court’s permission to admit expert psychoanalytical testimony that the defendant had sexually abused the victim. The trial court ruled that the prosecution could offer expert testimony that the victim had been sexually abused, but prohibited it from offering such testimony to identify the defendant as the abuser.

During direct examination of the psychotherapist, the prosecutor elicited the following testimony:

[157]*157Let me ask you in general terms from your understanding of children under the age of eight, is there any real chance that a child of that age could confuse a sex act done to him by a close family member with that of someone outside the family? “[Prosecutor:]
I would find that very unlikely unless the child was say under the age of two and a half. “[Witness:]
Would you say that, in general terms now, when children describe sexual acts in terms of what they physically felt as the act happened, that they are more likely to be telling the truth than not? “[Prosecutor:]
When a child-yes. When a child says to me that something happened to them and it hurt, that seems pretty graphic and convincing to me that they went through that experience and did not just observe it for example.” “[Witness:]

Defense counsel objected and moved for a mistrial after several questions had been asked. He chose to delay his trial objection, reasoning that an immediate objection or curative instruction would “‘highlight that question in the juror’s mind.’” Killam, 133 N.H. at 461, 578 A.2d at 852. The trial court denied the defendant’s motion for mistrial, because defense counsel had failed to raise a timely objection. On appeal, we agreed that defense counsel should have immediately objected to the expert’s testimony, and held that the “trial court did not abuse its discretion in denying the defendant’s untimely motion for mistrial.” Id.

In the current appeal, the defendant argues that his trial counsel’s failure to object contemporaneously to the allegedly damaging testimony denied him his right to effective assistance of counsel under the State and Federal Constitutions. Because the standard for attorney performance is the same under the New Hampshire and Federal Constitutions, see State v. Matiyosus, 134 N.H. 686, 687, 597 A.2d 1068, 1069 (1991), we consider the defendant’s claim under the State Constitution, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), using federal law only as an aid in our analysis, see State v. Faragi, 127 N.H. 1, 4, 498 A.2d 723, 726 (1985).

Part I, article 15 of the New Hampshire Constitution guarantees an accused “reasonably competent assistance of counsel,” [158]*158Matiyosus, 134 N.H. at 687, 597 A.2d at 1069; see State v. Fennell, 133 N.H. 402, 405, 578 A.2d 329, 331 (1990); Strickland v. Washington, 466 U.S. 668, 687 (1984).

In order to prevail on a claim of ineffective assistance of counsel, the defendant must.

“[f]irst. . . show that counsel’s performance was deficient, which requires proof that counsel made such egregious errors that counsel was not functioning as the ‘counsel’ guaranteed by both constitutions. See Strickland, 466 U.S. at 687. Second, the defendant must prove that counsel’s conduct actually prejudiced the defendant such that there is a reasonable probability that the result of the proceeding would have been different had counsel been competent. Strickland, 466 U.S. at 687; Faragi, 127 N.H. at 5, 498 A.2d at 726.”

Fennell, 133 N.H. at 405, 578 A.2d at 331. If, however, the defendant is unable to demonstrate actual prejudice, “we need not even decide whether counsel’s performance fell below the standard of reasonable competence.” Faragi, 127 N.H. at 5, 498 A.2d at 726; see Strickland, 466 U.S. at 697. “The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Strickland, 466 U.S. at 697.

Having reviewed the trial record, we find that the defendant has failed to show that he was sufficiently prejudiced by the introduction of the disputed testimony to meet his burden under the Strickland/Fennell test. The sum of the evidence against the defendant was overwhelming. The child victim, who was a credible witness, clearly stated that the defendant had penetrated her vaginally and anally during the times for which he had been charged. Further, the victim’s testimony was repeatedly corroborated by testimony from her natural mother and other witnesses. Accordingly, we need not consider whether the defendant’s attorney’s performance was deficient under the Strickland/Faragi test.

The defendant next argues that the trial court erred when it failed to grant a new trial based on newly discovered evidence. The new evidence consists of an affidavit and live testimony of a newly discovered witness, Kevin O’Brien, who claims that while he and Edward Leaor were in jail together, Leaor confessed to sexually assaulting a five-year-old girl in late 1985 or early spring 1986. Leaor was serving [159]*159time for sexually molesting the defendant’s stepdaughter. There is evidence that he and the defendant were friends during 1985 and 1986.

At a later date, while in prison, the defendant and O’Brien allegedly had a discussion in which the defendant explained to O’Brien that he had been convicted of sexually assaulting his five-year-old stepdaughter. Consequently, O’Brien and the defendant allegedly came to the realization that the defendant was in prison for the crime that Leaor had committed.

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Bluebook (online)
626 A.2d 401, 137 N.H. 155, 1993 N.H. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-killam-nh-1993.