Summary
reversing denial of defendant's motion for new trial because trial counsel provided ineffective assistance
Summary of this case from State v. PepinOpinion
No. 89-275
Decided July 18, 1990
1. Constitutional Law — Right to Effective Counsel — Standard of Competence Standard for attorney performance under both State and Federal Constitutions is reasonably effective assistance. U.S. CONST. amends. VI, XIV; N.H. CONST. pt. 1, art. 15.
2. Constitutional Law — Right to Effective Counsel — Standard of Competence In addressing constitutional claim of ineffective assistance of counsel, reviewing courts start with a strong presumption that counsel's conduct falls within limits of reasonable practice, bearing in mind the limitless variety of strategic and factual decisions that counsel must make.
3. Constitutional Law — Right to Effective Counsel — Burden of Proof To succeed on a constitutional claim of ineffective assistance of counsel, defendant must prove both that counsel made such egregious errors that counsel was not functioning as the "counsel" guaranteed by State and Federal Constitutions and that counsel's conduct actually prejudiced defendant such that there is a reasonable probability that the outcome would have been different if counsel had been competent.
4. Constitutional Law — Right to Effective Counsel — Conflict of Interest Where counsel is burdened by an actual conflict of interest, the prejudice prong of an ineffective assistance of counsel claim is presumed satisfied; without an actual conflict, no presumption arises.
5. Constitutional Law — Right to Effective Counsel — Prejudice For purposes of ineffective assistance of counsel claim, no presumption of prejudice arose from apparent conflict of interest, where attorney representing defendant on trial for aggravated felonious assault was associated in the practice of law with other attorney who earlier had brought a civil suit for negligent operation of a motor vehicle against defendant, but where civil suit had been turned over to defendant's employer or an insurance carrier, and was ultimately settled, and where at no time during representation of defendant did counsel learn of the civil suit.
6. Constitutional Law — Right to Effective Counsel — Prejudice In claim of ineffective assistance of counsel, if defendant is unable to prove prejudice, deficient performance need not be considered by the court.
7. Constitutional Law — Right to Effective Counsel — Prejudice In claim of ineffective assistance of counsel, when the testimony of seven-year-old victim in a case of aggravated felonious sexual assault failed to indicate penetration, trial counsel erred in failing to bring motion to dismiss indictment; and, since it would properly have been granted, defendant was prejudiced by counsel's failure to bring such motion.
8. Constitutional Law — Right to Effective Counsel — Prejudice In an ineffective assistance of counsel case, where prejudice was found concerning one conviction of aggravated felonious sexual assault, and the conviction vacated and the indictment dismissed, three other convictions of aggravated felonious sexual assault were remanded so that trial court could reconsider the sentencing under them in light of the dismissal of the fourth conviction.
9. Constitutional Law — Right to Effective Counsel — Tactics and Strategy Generally In an ineffective assistance of counsel case, broad discretion is permitted trial counsel in determining trial strategy, and defendant must overcome the presumption that counsel's trial strategy was reasonably adopted.
10. Constitutional Law — Right to Effective Counsel — Adequate Defense Where trial counsel's strategy was not to move to sever four indictments of aggravated felonious sexual assault because he intended to use an alibi defense available for three of the indictments to undermine the credibility of witnesses testifying on the fourth, defendant failed to show ineffective assistance in counsel's failure to move to sever the indictments, where there were strategic reasons for not bringing the motion, an improbability of success on merits of such motion, and no proof of prejudice to defendant.
11. Constitutional Law — Right to Effective Counsel — Adequate Defense In an ineffective assistance of counsel case, trial counsel's strategy not to object or move for mistrial when victim testified as to an incident occurring in the bathroom, where indictment charged defendant with aggravated sexual assault in an attic, was not ineffective assistance, since counsel used the inconsistencies in cross-examination to undermine the victim's credibility, and did not prejudice defendant.
12. Sexual Assault — Aggravated Felonious Sexual Assault — Elements Exact date of assault is not an element of the aggravated sexual assault crime. RSA 632-A:2, XI.
13. Constitutional Law — Right to Effective Counsel — Adequate Defense Trial counsel's failure to move for bill of particulars setting forth dates of offenses in case of aggravated felonious sexual assault did not amount to ineffective assistance of counsel, where indictments read "on or about" specific dates and defendant had sufficient opportunity to prepare an alibi defense on indictments as written, and where motion for bill of particulars would almost certainly have been denied.
14. Sexual Assault — Rape Shield Law — Exceptions to Provisions Although rape shield law mandates exclusion of evidence regarding victim's prior consensual sexual activity with any person other than defendant, defendant's right to due process and confrontation of witnesses limits the prohibitive sweep of the rape shield statute when the probative value of that evidence outweighs the prejudicial effect of its introduction. RSA 632-A:6.
15. Sexual Assault — Rape Shield Law — Exceptions to Provisions Defendant's counsel at aggravated felonious sexual assault trial should have requested a hearing under State v. Howard, 121 N.H. 53 (1981), based on letter defendant wrote to counsel describing defendant's largely hearsay basis for believing that young victims had previously experienced incestuous and other sexual activity; however, this failure did not require finding of ineffective assistance of counsel, since defendant failed to show prejudice from the failure to introduce such evidence as might have been prohibited in absence of Howard hearing.
John P. Arnold, attorney general (Jeffrey W. Spencer, assistant attorney general, on the brief and orally), for the State.
Nighswander, Martin Mitchell P.A., of Laconia (Byry D. Kennedy on the brief and orally), for the defendant.
This is an appeal from the Superior Court's (McHugh, J.) decision denying defendant's motion to vacate his four aggravated felonious sexual assault convictions and obtain a new trial, based on allegations of ineffective assistance of counsel. We reverse as to one conviction and otherwise affirm.
The defendant was convicted in April 1985 on four counts of aggravated felonious sexual assault in violation of RSA 632-A:2, XI. He appealed his convictions to this court on two grounds challenging, first, the Trial Court's (Murphy, J.) denial of his motion for mistrial because of alleged discussions between jurors outside the presence of the remainder of the jury panel and, second, the sufficiency of the evidence regarding one of the counts of aggravated felonious sexual assault. We affirmed each of the four convictions, finding that the court committed no error in denying the mistrial and that the defendant had not properly preserved the insufficiency issue for review. State v. Fennell, 128 N.H. 383, 513 A.2d 363 (1986).
In July 1988, the defendant filed a pro se motion to vacate his convictions and obtain a new trial, based on allegations of ineffective assistance of trial counsel. The Superior Court (McHugh, J.) appointed counsel to represent the defendant and denied the motion after an evidentiary hearing. The defendant now appeals the superior court's findings, claiming that trial counsel's acts and omissions fell below the standard of reasonable competence and denied the defendant effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States Constitution, and by part I, article 15 of the New Hampshire Constitution.
[1-3] The standard for attorney performance, whether raised under the United States or New Hampshire Constitution, is that of reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 690, reh'g denied, 467 U.S. 1267 (1984); State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985). "Reviewing courts 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." Faragi, 127 N.H. at 4-5, 498 A.2d at 726 (citations omitted). There are two components to a successful claim of ineffective assistance. First, the defendant must 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.
There are certain circumstances, one of which the defendant alleges here, where the prejudice prong is legally presumed. See United States v. Cronic, 466 U.S. 648, 658 (1984); Avery v. Cunningham, Warden, 131 N.H. 138, 146, 551 A.2d 952, 956-57 (1988). Prejudice is presumed when there is an actual or constructive denial of counsel because the circumstances "are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658-59. One situation that presents a limited application of this presumption is where counsel is burdened by an actual conflict of interest. See Strickland, 466 U.S. at 692.
In Cuyler v. Sullivan, 446 U.S. 335, 345 (1980), the United States Supreme Court addressed "whether the mere possibility of a conflict of interest warrant[ed] the conclusion that the defendant was deprived of his right to counsel" because of trial counsel's representation of multiple defendants. In answering this question, the court stated that prejudice is presumed when counsel is burdened by an actual conflict of interest. Id. at 348. Thus in instances where the defendant alleges the existence of a conflict of interest, the defendant must demonstrate "that an actual conflict of interest adversely affected his lawyer's performance" and that "his counsel actively represented conflicting interests." Id. at 348, 350 (emphasis added). In our own decision in State v. Cyrs, 129 N.H. 497, 501-02, 529 A.2d 947, 950-51 (1987), we extended the scope of Cuyler beyond cases of multiple representation and held that the Cuyler standard could be applied to other defendant-attorney conflict of interest cases. In doing so, however, we did not abandon the requirement that there be an actual conflict of interest.
The defendant invokes the law of Cuyler and Cyrs in claiming that he need not prove actual prejudice in order to obtain relief, if he otherwise satisfies us that his attorney's performance fell below the standard of reasonably effective assistance. The alleged conflict in this case arises from the fact that the defendant's trial counsel, Mr. Hemeon, was associated in the practice of law with Philip McLaughlin, who brought a civil suit for negligent operation of a motor vehicle against the defendant, in January of 1984, on behalf of one of his clients. Shortly after the writ was served on the defendant, it was turned over to either the defendant's employer or the insurance carrier, and the matter was ultimately settled.
In April 1984, the defendant called Mr. Hemeon from a police station, having just been arrested in connection with the crimes underlying this case, and requested that Mr. Hemeon represent him. Mr. Hemeon did represent the defendant from May of 1984 through April of 1985. During this time, the defendant never brought up the civil suit in any of his discussions with Mr. Hemeon. In fact, at no time during the course of Mr. Hemeon's representation did he learn either from the defendant or his law partner of the pendency of the civil action against the defendant. The trial court reviewed the file of the civil suit at the Belknap County Superior Court and noted that none of the documents contained Mr. Hemeon's signature. At the hearing on the defendant's motion, the trial court found that "to the extent that an apparent conflict of interest existed, that conflict was not created knowingly by Attorney Hemeon" (emphasis added). The defendant does not deny Mr. Hemeon's lack of knowledge about the civil suit, nor does he claim that trial counsel actively represented conflicting interests. He argues, rather, that Mr. Hemeon should have known about the apparent conflict. What Mr. Hemeon arguably should have known is not, however, the relevant issue. Without an actual conflict, no presumption of prejudice arises; consequently, we analyze the defendant's specific allegations of counsel's inadequacy in accordance with the standards enunciated in Strickland.
The defendant contends that trial counsel was ineffective for the following reasons: (1) he failed to move to dismiss one of the indictments when the evidence at trial purportedly failed to establish penetration; (2) he did not move to sever the four indictments; (3) he did not move for a mistrial when evidence of unindicted acts was elicited from one of the witnesses at trial; (4) he failed to move for a bill of particulars in connection with his alibi defense; and (5) he should have requested a Howard hearing to determine the admissibility of evidence of the prior sexual activity of the victims. As to each of these claims, we now proceed to the dual inquiry — whether counsel's performance was deficient and whether the defendant was prejudiced by the performance. State v. Allegra, 129 N.H. 720, 723, 533 A.2d 338, 341 (1987). If the defendant is unable to demonstrate the requisite prejudice, "we need not even decide whether counsel's performance fell below the standard of reasonable competence." Faragi, 127 N.H. at 4-5, 498 A.2d at 726.
Indictment #84-0098 charged the defendant with committing aggravated felonious sexual assault on the seven-year-old victim while the two were in a parking lot at a McDonald's restaurant. Specifically, the indictment charged that the defendant placed his finger in the victim's genital opening. See RSA 632-A:1, V(e). Set forth below is the victim's trial testimony regarding this incident.
"Q. Did Mr. Fennell do something with his finger?
A. Yes.
Q. What did he do?
A. He put his finger in my — trying to find my hole.
Q. And did he find your hole?
A. Yes.
Q. And what did he do when he found it?
A. He goes around it.
Q. He goes around it? And what do you mean he goes around it? I don't know what that means.
A. He goes around it in circles.
Q. And with his finger he went around your hole in circles?
A. Em-hem.
Q. Now, honey, where on your body — just touch what you mean by your hole. I don't mean show us. Just put your hand right on your clothes; can you do that? Show me what you mean by your hole. Where is it on your body?
A. Down here.
Q. Is that your private parts?
A. Em-hem."
The defendant contends that this testimony "at best, established sexual contact," and not penetration, which is a material element of the offense charged. The defendant thus claims that trial counsel erred when he failed to bring a motion to dismiss the indictment for which this testimony was the only evidence. We agree.
Penetration is defined to include "[a]ny intrusion, however slight, of any part of the actor's body or any object manipulated by the actor into the genital or anal openings of the victim's body." RSA 632-A:1, V(e). The victim never testified explicitly that there had been any penetration. She testified about acts of the defendant's hand, but in no way can the victim's statements be reasonably understood as penetration. Although she said at one point, "He put his finger in my -," she never finished the sentence she had begun, and immediately went on to say that he "was trying to find my hole." This indicated that the defendant had not succeeded in penetration. The victim's further words were "he goes around it," from which it would be erroneous to infer penetration.
[7, 8] A motion to dismiss this indictment would have been properly granted, since the evidence, viewed even in the light most favorable to the prosecution, see State v. Dupuy, 118 N.H. 848, 850, 395 A.2d 851, 852 (1978), failed to show that the defendant digitally penetrated the victim. The defendant was, therefore, prejudiced by trial counsel's failure to bring such a motion, and the conviction as to this indictment should be vacated and the indictment dismissed. In accordance with State v. Allegra, 129 N.H. at 726, 533 A.2d at 342, we also remand the other three convictions so that the trial court may reconsider the sentencing under them in light of the dismissal of the fourth.
The defendant's second claim is that trial counsel should have moved to sever the four indictments. Two of the indictments involved allegations of assault on one victim. Indictment #84-0097 alleged that an assault took place on or about March 1, 1984, at the victim's residence; and indictment #84-0098 alleged that a second assault occurred on or about March 9, 1984, in a McDonald's parking lot. The remaining two indictments involved two other victims alleged to have been assaulted on or about June 18, 1983. The defendant argues that the first set of indictments was totally unrelated to the second set of indictments, that there was minimal overlap of witnesses, and that neither of the second two victims testified with respect to the first victim. The defendant asserts that counsel's failure to move to sever jeopardized his right to a fair trial because he faced three accusers in the same proceeding unnecessarily, and the jury may have "improperly viewed these separate incidents as corroborating one another . . . ."
The record indicates that trial counsel did not bring a motion to sever for strategic reasons. Trial counsel believed that he could use an alibi defense, available for three of the indictments, to undermine the credibility of witnesses testifying on the indictment for which no alibi existed. Furthermore, trial counsel had discussed severance with the defendant, who did not object to a single trial on all four indictments, and with the trial judge, whose sole province it is to determine whether or not to sever or to consolidate cases. See State v. Manna, 130 N.H. 306, 310, 539 A.2d 284, 286 (1988). Ultimately, counsel concluded it was strategically more sound to try the indictments together.
[9, 10] As we have previously noted, broad discretion is permitted trial counsel in determining trial strategy, and the defendant must overcome the presumption that counsel's trial strategy was reasonably adopted. See Abbott v. Potter, 125 N.H. 257, 261, 480 A.2d 118, 119-20 (1984). The defendant is unable to show that the failure to move to sever affected the course of the trial. When the crimes charged are related or are apparent parts of a common scheme or plan, see State v. Whitney, 125 N.H. 636, 639, 484 A.2d 1158, 1160 (1984), and where the evidence is simple and unlikely to confuse a jury, as was the case here, it is improbable that a trial judge would have granted any severance requested. See State v. Winders, 127 N.H. 471, 473, 503 A.2d 798, 799-800 (1985). We find no ineffective assistance here, where there were strategic reasons for not bringing the motion, an improbability of success on the merits of such a motion and, ultimately, no proof of prejudice to the defendant.
The defendant next claims that his trial counsel's performance was deficient when he failed to move for a mistrial after one of the victims testified to an unindicted incident. The second set of indictments alleged that the defendant committed aggravated felonious sexual assault on two eleven-year-old girls in the attic of another girl's home. At the trial, in the course of direct examination of one of the victims, the State attempted to elicit testimony regarding the incident in the attic. The victim, however, began to testify to what may have been a separate incident that occurred in the bathroom. A review of the trial transcript indicates that the State had the intention of inquiring about the incident set forth in the indictment and tailored its questions more narrowly to the attic once it became apparent that the victim was confused and nervous.
The defendant now claims that he was prejudiced by this testimony and that trial counsel should have objected and moved for a mistrial. He relies on State v. LaBranche, 118 N.H. 176, 385 A.2d 108 (1978) to support his contention that "there is a reasonable doubt as to whether or not the jury may have relied on this clearly inadmissible evidence in reaching its verdicts and that he has thus been prejudiced by his counsel's failure to raise the issue at trial." The defendant's reliance is misplaced, however, because the cases are factually dissimilar.
In LaBranche there were two unmistakable references to a "second" incident in a trial for one charge of aggravated felonious sexual assault. Id. at 177-78, 385 A.2d at 110. The instant case presents no such distinct reference. On the contrary, it is not entirely clear from the victim's testimony whether she was talking about the same incident and forgetting where it occurred, or whether she was talking about a separate incident altogether. In any event, trial counsel for the defendant used these inconsistencies in cross-examination to undermine the victim's credibility. We cannot say that counsel's tactic here fell so wide of the mark that his failure to object or to move for mistrial constituted ineffective assistance, let alone that it prejudiced the defendant; again, it was a tactical decision to which we accord appropriate deference.
[12, 13] The defendant next claims that trial counsel's failure to move for a bill of particulars concerning the dates of the offenses constituted ineffective assistance because the defendant intended to maintain an alibi defense. In the present case, however, each of the indictments alleged a specific date. Although the dates were couched in "on or about" language, there was sufficient information from which the defendant had an opportunity to prepare an alibi defense. Furthermore, "[t]he exact date of the assault is not an element of the aggravated felonious sexual assault crime," State v. Tynan, 132 N.H. 461, 464, 566 A.2d 1142, 1143 (1989); see RSA 632-A:2, XI; and a motion for bill of particulars, if subject to objection, would almost certainly have been denied. "Where no defense is possible on the basis of the victim's age . . . a defendant generally has no basis for complaining that the indictment fails to allege a precise date, absent a showing that the inexactness raises a possibility of prejudice specific to him." State v. Lakin, 128 N.H. 639, 640, 517 A.2d 846, 847 (1986). The defendant makes no such showing; the dates were specific and the evidence at trial established that the assaults occurred on the dates alleged. There is, therefore, no reason to believe counsel's failure to seek a bill of particulars was a deficient act of representation.
The defendant's final argument is that trial counsel should have requested a Howard hearing to determine the admissibility of evidence of the prior sexual activity of the victims. See State v. Howard, 121 N.H. 53, 426 A.2d 457 (1981). Although the rape shield law, RSA 632-A:6, mandates the exclusion of evidence regarding a victim's prior consensual sexual activity with any person other than the defendant, the defendant's right to due process and confrontation of witnesses limits the prohibitive sweep of the rape shield statute when the probative value of that evidence outweighs the prejudicial effect of its introduction. State v. Goulet, 129 N.H. 348, 351, 529 A.2d 879, 881 (1987).
In support of his pending motion, the defendant has introduced copies of certain pages from a letter he wrote to trial counsel describing his largely hearsay basis for believing that the young victims had previously experienced incestuous and other sexual activity. After reading them, we agree that trial counsel should have requested a Howard hearing to enquire further, although it is not clear either that a Howard hearing was a required predicate for eliciting trial testimony on all of the matters disclosed, or that it would have been prudent to elicit such testimony, assuming the defendant could have done so. On the one hand, some of the acts described, if they occurred at all, would probably not have been consensual; on the other hand, emphasis on repeated sexual abuse of the victims, even by others, could have created a degree of sympathy that could have jeopardized the jurors' impartiality. But at the least, the information supplied by the defendant to trial counsel, if repeated in support of an application for a hearing under Howard, see State v. Baker, 127 N.H. 801, 804, 508 A.2d 1059, 1062 (1986), and if substantiated, could have established the defendant's right to overcome the shield law's prohibition with such evidence as might be necessary to counter any suggestion or appearance of sexual naivete on the part of the victims. See State v. Howard supra.
The defendant still must show prejudice, however, from the failure to introduce such evidence as might have been prohibited under the law, in the absence of a Howard hearing. He has failed to do this. As we noted, some of the possible evidence was probably not subject to the shield law or a corresponding Howard hearing. The need for any evidence of prior sexual activity, moreover, may have been lacking if, as the State maintains, the victims were portrayed at trial as sexually experienced. The defendant does not in fact take any issue with this characterization of the evidence, or even argue that there is any reasonable probability that evidence of sexual experience would have affected any of the verdicts. There was no basis to infer prejudice on this point.
In sum, we find that the defendant was prejudiced and that counsel's representation fell below the standard of effective assistance only with respect to the defendant's first claim of error. As to each subsequent claim, the defendant has failed to satisfy the Strickland standard.
Reversed in part; affirmed in part; remanded.
HORTON, J., did not sit.