The petitioner, Nathaniel Ericson, appeals an order of the trial court denying his petition for habeas corpus. He argues that the trial court erred in: (1) finding that his trial counsel did not render ineffective assistance of counsel regarding the consolidation of indictments from separate counties into a single trial; (2) finding that, even if his trial counsel's advice was wrong as a matter of law, the petitioner failed to demonstrate that the outcome of the trial "could have been different"; and (3) crediting his trial counsel's testimony that he advised the petitioner regarding the consolidation. We affirm.
The State and Federal Constitutions guarantee a criminal defendant reasonably competent assistance of counsel. State v. Whittaker, 158 N.H. 762, 768 (2009). We first address the petitioner's claim of ineffective assistance of counsel under the State Constitution, citing federal opinions for guidance only. State v. Brown, 160 N.H. 408, 412 (2010). Because the standard for determining whether the petitioner received ineffective assistance of counsel is the same under both constitutions, we reach the same result under the Federal Constitution as we do under the State Constitution. Whittaker, 158 N.H. at 768.
To prevail upon a claim of ineffective assistance of counsel, the petitioner must demonstrate, first, that counsel's representation was constitutionally deficient and second, that counsel's deficient performance actually prejudiced the outcome of the case. Brown, 160 N.H. at 412. Failure to establish either prong requires a finding that counsel's performance was not constitutionally defective. Id. To satisfy the first prong of the test, the petitioner must show that counsel's representation fell below an objective standard of reasonableness. Id. We judge the reasonableness of counsel's performance based upon the facts and circumstances of the particular case, viewed at the time of the cited conduct. Id.
To satisfy the second prong, the petitioner must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 413. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. In making this determination, we consider the totality of the evidence presented at trial. Id. Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. Id. We will affirm the trial court's factual findings unless they are not supported by the evidence or are erroneous as a matter of law; our review of the ultimate determination of whether each prong is met is de novo. Id.
We address first whether his trial counsel's alleged error prejudiced the petitioner, because, if the petitioner is unable to demonstrate such prejudice, we need not determine whether his counsel's trial performance fell below the standard of reasonable competence. See, e.g., Brown, 160 N.H. at 417; State v. Wisowaty, 137 N.H. 298, 302 (1993) (preferable course in a challenge based on ineffective assistance of counsel is to require petitioner to prove as threshold matter that alleged error by counsel prejudiced his case); Strickland v. Washington, 466 U.S. 668, 697 (1984) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
We note at the outset we have not been provided with the complete transcripts of the petitioner's trial. Accordingly, in conducting our review in this case, we have considered the opinion that we issued in the petitioner's direct appeal, see State v. Ericson, 159 N.H. 379 (2009), and the record now before us. We note also that the defendant was convicted only on the Hillsborough County indictments. At the time the jury announced it had reached a verdict on those charges, it had not reached a verdict on the Grafton County charges. The petitioner argues, however, that the evidence concerning the Grafton County charges "played a significant part in [his] convictions on the Hillsborough charges."
The evidence presented at trial included: (1) testimony by the victim that described in detail the assaults committed by the petitioner against her at his lake house that gave rise to the Hillsborough County charges; (2) the assaults began at the Hillsborough County venue before the victim's fifth birthday; (3) statements by the petitioner to the police that he had no problem with the young victim and her sister seeing him naked; and (4) the petitioner's statement that the victim might have touched his penis while they were showering. Ericson, 159 N.H. at 382-83. The petitioner also testified at trial that the sexual contact did not make him feel uncomfortable and that "the victim took his finger and put it down the waistband of her underwear and on her clitoris at which point he told her that masturbation was nothing to be ashamed of and that both her mother and his wife masturbated." Id. at 383-84. Based upon the record before us, we conclude that the petitioner has failed to establish that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the trial would have been different.
HICKS, CONBOY, and BASSETT, JJ., ...