The opinion of the court was delivered by: Hicks, J.
Argued: February 16, 2012
The defendant, Saad Moussa, appeals his convictions, and sentences, on three counts of stalking, see RSA 633:3-a (Supp. 2004) (amended 2005, 2006), entered following a jury trial in Superior Court (McHugh, J.). We affirm.
The jury could have found, or the record supports, the following facts. In 2005, the Rockingham County grand jury returned three indictments against the defendant, each alleging a separate incident of stalking the victim, to whom he had been married for approximately eleven years. According to the victim's testimony, they were divorced at the time of trial. Each charged incident involved the defendant allegedly sending a letter to the victim "after having been served with or otherwise provided notice of a protective order issued by the Salem Family Court on 12/10/04, that prohibited him from having contact with [her]."
On the morning of trial, the defendant's appointed lawyer, Neil Reardon, informed the court that he "had spoken with [the defendant] earlier and [the defendant] asked [him] not to represent him," and that the defendant had "also sent [him] correspondence to that effect." After hearing from the defendant, the court stated: "Well, here's where we are. I mean, if you don't want him to represent you, I'm not going to force it on you, but I'm not going to continue the case either, you're going to represent yourself. If you want to do that, you can." The defendant confirmed that his "final decision" was that he did not want Reardon. He said that he would represent himself, but asked the court to give him "a little bit more time" to conduct the investigation he claimed Reardon had not done. The court denied that request and asked Reardon to stay in the courtroom in case "something should come up or [the defendant] changes his mind." On the second day of trial, after the defendant had absented himself from the proceedings, the court released Reardon from further involvement in the case.
At trial, the victim testified that each of the letters was written in Arabic in the defendant's handwriting. Nevertheless, each letter purported to be from someone other than the defendant - specifically, in the words of the first letter, "a benefactor and a family friend." The first and second letters were purportedly sent by Carlos Santana, with return addresses of New York City and the Bronx, respectively. The third had no return address but was postmarked from Manchester, New Hampshire. The State produced evidence that the defendant's fingerprints were found on each letter. The victim also testified that some of the letters repeated threats the defendant had made to her in the past: "Exactly - same words in them."
The third letter mentioned "a Lebanese who was in prison with [the defendant] and he got out from jail." The letter further stated, "As far as I know, that guy seeking trouble." Salem Police Sergeant Eric Lamb testified that he investigated that claim and discovered that an individual named Oner Nusret had been incarcerated with the defendant and had been released. The victim testified that she did not know anyone by that name.
On cross-examining the victim, the defendant inquired how he could have sent a letter to her if he was in custody at the time. He asked, "Does she have a stamp from the jail or not?" The State addressed this issue in its closing argument:
[The defendant] says to you, I couldn't possibly have sent these [letters]. He told you he was incarcerated at the time and they don't come from the jail. Folks, no one is saying he put these in the mailbox himself. You're not required to find that he did. It's not something that has to be proven beyond a reasonable doubt.
. . . Nothing is going to prevent him from putting this letter in another envelope, sending it to a friend who can drop it in the mail because he knows these letters can't come from him.
The defendant was convicted of all three counts and sentenced on each to three and a half to seven years in state prison, to run consecutively and to run consecutively to the defendant's previously-imposed sentences. He now appeals his convictions and sentences.
The defendant argues that the trial court erred in: (1) requiring him to choose between self-representation and representation by a lawyer he wanted to dismiss; (2) making certain evidentiary rulings; (3) denying his request for counsel at sentencing; and (4) imposing felony sentences. We address each argument in turn.
The defendant first contends that because "[t]he right to counsel encompasses the right to the effective assistance of counsel," the trial court could not put him "to the choice between representation at trial by a lawyer who has deficiently prepared for trial, and self-representation." While the defendant's claim implicates his constitutional right to counsel, he has not cited a specific provision of the State Constitution on this issue either below or on appeal. We therefore address his claim only under the Sixth Amendment to the Federal Constitution. See State v. Dellorfano, 128 N.H. 628, 632-33 (1986).
"It is well-established that it is within the [trial] court's discretion to force a defendant to choose between proceeding to trial with an unwanted attorney and representing [him]self." United States v. Woodard, 291 F.3d 95, 106 (1st Cir. 2002).
The right of an accused to counsel of his choice . . . is not absolute. . . . Thus, a trial court has discretion to limit the exercise of the right, and, in doing so, should balance the defendant's interest in retaining counsel of his choice against the public's interest in the prompt, fair and ethical administration of justice.
United States v. Richardson, 894 F.2d 492, 496 (1st Cir. 1990) (quotation omitted). We therefore review the trial court's ruling on this issue for an unsustainable exercise of discretion. Cf. Woodard, 291 F.3d at 106 (appellate court reviews denial of request for substitute counsel for abuse of discretion); State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard).
The defendant did not request substitute counsel, but instead sought a continuance to prepare to proceed pro se. Nevertheless, the issue is analogous to a request for substitute counsel because the crux of both claims is the unconstitutionality of a forced choice between self-representation and ineffective assistance of counsel. Cf. Woodard, 291 F.3d at 106. Accordingly, we find the following test, from the United States Court of Appeals for the First Circuit, instructive:
When a defendant voices objections to counsel, the trial court should inquire into the reasons for the dissatisfaction. In evaluating whether a [trial] court's denial of [a] motion for substitution of counsel constituted an [unsustainable exercise] of discretion, we consider the following factors: the timeliness of the motion, the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.
Id. at 107 (quotations and citation omitted).
With regard to the first factor, the State argues that the defendant "waited until the day of trial to tell the court he was dissatisfied with" Reardon. The defendant counters that he expressed concerns about Reardon's representation as early as January 5, 2009, two months before the start of trial on March 16, 2009. The record of the pretrial conference on January 5 indicates that the defendant had concerns about discovery and the infrequency of communication between Reardon and himself. He did not attempt to dismiss Reardon at that time, however, and the court addressed his concerns about discovery by continuing trial for two months and securing Reardon's agreement that if, after having reviewed the letters at issue, "there's something in those letters that ma[de] [him] think that it's in [the defendant's] best interest to contact witnesses and have them potentially testify, . . . [he] would do that."
The defendant's first attempt to dismiss Reardon appears to have been in a letter to him dated February 21, 2009, claiming that although he had represented the defendant for nearly two months and had almost one month to conduct discovery, he did nothing. The defendant stated, "you didn't do anything or you file any motion in my behalf in this case, and NO visit from you." The letter, which was sent to the trial court, concluded, "I believe the communication between us has broken down, and I NO longer wish for you to represent me." In a letter to the court dated the same day, the defendant stated that he would like to address these issues "at the hearing on March 5," and requested to be transported to the court for the hearing. There appears to have been no hearing on March 5. Thus, the defendant contends that his "first opportunity . . . to address the court in person came on March 16, the first day of trial."
The defendant asserts that the foregoing facts belie the inference urged by the State that he waited until the commencement of trial to complain about Reardon "in order to disrupt the proceedings." Regardless of the defendant's motivation, however, the remedy he sought would have "necessitate[d] a lastminute continuance," and we therefore "accord extraordinary deference to the [trial] court's decision" on the matter. Id. (quotation omitted).
The second factor assesses "the adequacy of the court's inquiry into the defendant's complaint." Id. (quotation omitted). Here, the court allowed the defendant to explain his dissatisfaction with Reardon. The defendant stated that communications with Reardon had "broken down" and that Reardon had failed to conduct a proper investigation. The defendant explained that he had provided Reardon with a list of witnesses he wanted to subpoena, but Reardon had declined to subpoena nearly all of them. The defendant maintained that his witnesses could have sent the letters to his wife. He also stated that he wanted to call a witness from the jail where he was incarcerated to testify that all mail sent from there was stamped. The lack of such a stamp on the letters to his wife, he contended, would prove that those letters were not sent from the prison, and thus, inferentially, could not have been sent by him. He stated that his wife had access to his office, seeming to suggest that she could have obtained paper with his fingerprints on it. In addition, he wanted to identify any other fingerprints on the letters, as they could have been from "the person who sent that letter to [his] wife."
The court then sought input from Reardon, who stated that the defendant wanted him to perform an investigation that he thought was unnecessary: "[T]here's relevant evidence in this case as to whether or not [the defendant] wrote these letters and his fingerprints are on the letters and other fingerprints could be or could not be, but that's subject for cross-examination." He further explained:
[H]e wants me to pursue frivolous avenues that don't go anywhere and I've tried to explain that to him and I don't want to do nonsensical things in front of a jury because . . . it will only hurt his case. And I'm trying to help this man if he'd only listen to me. But he wants me to pursue evidence and witnesses that aren't relevant, Judge.
I mean, I went through his witness list with him and there were a couple of witnesses that I think are relevant until I inquired of one and he definitely indicated that he didn't have any relevant information.
We conclude that the court conducted an adequate inquiry.
The final factor considers "whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense." Id. (quotation omitted). In other words, the reviewing court must determine whether there was good cause for substitution of counsel. United States v. Allen, 789 F.2d 90, 93 (1st Cir. 1986). "Good cause for substitution of counsel cannot be determined solely according to the subjective standard of what the defendant perceives." Id. (quotation omitted). In this case, we must determine whether Reardon's preparation was so deficient as to constitute ineffective assistance. Cf. Monroe v. United States, 389 A.2d 811, 820 (D.C. 1978) (noting that "allegations of the inability of counsel to render effective assistance at trial due to lack of preparation rise to the level of a claim of a Sixth Amendment deprivation").
"An attorney is not obligated to pursue weak options when it appears, in light of informed professional judgment, that a defense is implausible or insubstantial." Woodard, 291 F.3d at 108 (quotation omitted).
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Strickland v. Washington, 466 U.S. 668, 690-91 (1984).
The defendant argues that Reardon's assertion that he could make the point about the lack of a prison stamp on cross-examination, and the trial court's finding on that issue, "demonstrated a failure to understand the nature and significance of the evidence." He contends that "[a]t the March 16, hearing, [he] proffered that jail policies would have prevented him from enclosing the . . . letters and envelopes in mail sent from the jail even to a third person, without the letters and envelopes bearing a jail stamp."
We note that it is not clear that the defendant's proffer related to the internal contents of an envelope mailed from the prison. The defendant told the trial court that he had twice spoken with a prison official, whom he identified as "Captain Church" or "Lieutenant Captain Church," who had "said no mail sent from the prison, okay, from the - from the jail without stamp. . . I need letter sent out from the prison should be stamped. As the result of what I see in the copy, there's no stamp present and that letter is not sent in the prison." He stated that even if the envelope was his, "you need that envelope sent from the prison and should be stamped."
Even assuming, however, that the defendant did make such a proffer, we find no error. The State notes that Reardon did not say that he failed to investigate the jail's mail policy, but rather that he planned to ...