The defendant, Scott Traudt, appeals a trial court order denying his motion for new trial based upon ineffective assistance of counsel. He argues that his trial counsel provided ineffective assistance of counsel when he argued a theory of defense that was inconsistent with the defendant's sworn trial testimony. We affirm.
The State and Federal Constitutions guarantee a criminal defendant reasonably competent assistance of counsel. State v. Sharkey, 155 N.H. 638, 640 (2007). To successfully assert a claim for ineffective assistance of counsel, a defendant must show, first, that counsel's representation was constitutionally deficient and, second, that counsel's deficient performance actually prejudiced the outcome of the case. Id. at 640-41. To satisfy the first prong of the test, the defendant must show that his counsel made such egregious errors that he failed to function as the counsel that the State Constitution guarantees. Id. at 641. Broad discretion is afforded trial counsel in determining trial strategy, and the defendant must overcome the presumption that counsel's trial strategy was reasonably adopted. Id. To meet the second prong, a defendant must demonstrate actual prejudice by showing that there is a reasonable probability that the result of the proceeding would have been different had competent legal representation been provided. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case. Id.
We glean the following facts from the record before us. The defendant was charged with two counts of simple assault and one count of disorderly conduct. The charges resulted from a traffic stop that occurred after his wife, the driver of the vehicle in which he was a passenger, failed to stop for a red light. While his wife was performing field sobriety tests, the defendant exited their vehicle and, despite repeated requests, refused to get back in. Although the State's witnesses and the defendant dispute the details, an altercation took place that involved the defendant and two police officers. As a result, the defendant was charged with two counts of simple assault and one count of disorderly conduct. Although we have not been provided with the indictments, we will refer to the simple assault charges as the "strike to the head" charge and the "body slam" charge. Following a jury trial, the defendant was convicted on the strike to head charge and on the disorderly conduct charge.
Prior to trial, the defendant filed a notice of self-defense and his counsel argued this theory at trial. In his motion for new trial and in this appeal, the defendant argues that because he testified "unequivocal[ly]" at trial that he did not strike the officer in the head, his counsel's assertion of self-defense compromised his credibility and was therefore not reasonable. He asserts that although he expressed reservations about filing the notice of self-defense, he deferred to his counsel's judgment. He also argues that, because the jury was instructed that it had to find that he acted "knowingly" in order to convict him of simple assault, his counsel's argument that he might have inadvertently hit an officer in self-defense signaled to the jury that he did not believe his client.
In its order denying the defendant's motion, the trial court observed that the defendant had filed six previous motions for new trial, including two in which he asserted that his trial counsel was ineffective. The trial court found that the defendant's assertion that his counsel presented the self-defense theory without his informed permission was inconsistent with his statements in his previous post-trial motions. The court cited several statements, including: (1) his counsel was ineffective for "'fail[ing] to move to dismiss the charges as a matter of law' when 'the undisputed facts' demonstrated that 'the defendant was not being arrested and therefore was privileged to defend himself with reasonable force as soon as it became clear that the police were going to use unlawful force against him'"; (2) "'the court even allowed the defendant to raise a self-defense jury instruction'"; (3) "'the police [officers'] actions toward his wife 'could be reasonably' predicted 'to evoke a defensive, biologically-driven response on . . . his part'"; and (4) certain evidence "'was crucial to defendant's case, as the Court had granted defense counsel's request for a self-defense claim.'"
The trial court also found that: (1) "[t]he defendant's trial counsel did not present a theory of defense that was fundamentally nonviable in the context of the evidence adduced at trial"; (2) "the defendant's testimony as to whether he may have knowingly caused unprivileged contact to the officer was not unequivocal"; (3) "[t]he manner in which trial counsel presented the self-defense defense to the jury did not contradict or undermine the defendant's testimony but reasonably dovetailed with it"; and (4) "the self-defense theory as advocated by trial counsel did not imply that the defendant was lying or impair his credibility." The trial court then ruled: "This [self-defense] strategy and the defendant's trial testimony were not irreconcilable. Trial counsel's execution of this trial strategy was reasonably adapted to the defendant's anticipated and actual trial testimony." We agree.
At trial, one of the arresting officers testified that the defendant punched him in the head. Later, in response to the question: "Could [the officer] have been struck somehow?, " the defendant testified: "When I was on the ground – when they were punching me while I was on the ground and they landed on top of me and I was trying to protect my head, maybe there was inadvertent contact. I was always trying to protect myself but I never – not the way he described it. There's no way. I didn't do that." Defense counsel was thus faced with conflicting testimony. In his closing, he argued extensively that the arresting officers had fabricated their account of events. He cited the officer's description of the action giving rise to the "strike to the head" charge, saying "again we know that that's just got to be garbage, but if there is some reason that [the defendant's] body somehow got in touch with [the officer's] body that caused some contact to his head, thrashing around or whatever, okay, that's covered by the self-defense instruction." He emphasized that the defendant did not provoke anything and was not the initial aggressor but that if the jury thought there had been some contact: "The Judge told you, you can use self-defense as a defense here, and it does apply in this case. Just in case, just in case, I'm giving the benefit of the doubt here, you know, to [the officer], but I hate doing it, but if [the defendant] hit him somehow when he was protecting himself from being beaten, that covers it, okay?"
We agree with the trial court: "[T]rial counsel adequately finessed any potential contradiction between the self-defense claim and the defendant's testimony so as to reconcile them." Because we conclude that the defendant has failed to establish that his trial counsel's representation was constitutionally deficient, we affirm the decision of the trial court denying his motion for a new trial. See State v. Breed, 159 N.H. 61, 72 (2009) (standard for determining whether defendant has received ineffective assistance of counsel is same under both State and Federal Constitutions).
DALIANIS, C. J, and HICKS and LYNN, JJ, ...