Issued the following order:
The defendant, Clint Pickering, appeals his convictions for second degree assault, reckless conduct, disobeying a police officer, and conduct after an accident. He argues that the trial court erred in failing to conduct a timely and sufficient inquiry into his claims that his counsel's representation was constitutionally deficient. He also argues that the trial court erred in admitting his federal conviction for aiding and abetting a bank robbery. We affirm.
The defendant first argues that the trial court failed to conduct a timely and sufficient inquiry into his claims that his counsel's representation was constitutionally deficient. "When a defendant voices objections to counsel, the trial court should inquire into the reasons for the dissatisfaction." State v. Moussa, 164 N.H. 108, 114 (2012) (quotation omitted). In evaluating whether the trial court erred in denying a motion for substitution of counsel, we consider: "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 counsel was so great that it resulted in a total lack of communication preventing an adequate defense." Id. (quotation omitted). We review the court's ruling for an unsustainable exercise of discretion. Id.
The record shows that the defendant's appointed counsel had represented him for over a year before moving to withdraw on September 17, 2012, one week before trial. In his motion, counsel stated that after a September 12, 2012 pretrial hearing, the defendant advised him that he did not want counsel to continue working on his case and that he wanted to represent himself at trial. Two days later, the court addressed the motion at a hearing. The court first sought input from defense counsel, who stated that he had spent over seventy hours working on the case and that he had been actively communicating with the defendant during that time. The court then inquired of the defendant, who stated, "there's a lot of stuff in this case that I don't understand and a lot of stuff that I would like to understand." The defendant faulted his counsel for failing to fully explain the case to him. After a colloquy between the court and the defendant regarding his right of self-representation, trial procedures, and other issues, the court asked counsel to respond to the defendant's allegations regarding a lack of communication. Defense counsel advised the court that he and the defendant had had "numerous telephone conversations, " that he had written the defendant "numerous letters, " and that the defendant had written him a total of twenty-six letters. Counsel noted that the defendant had a "complete copy of his file, " and that based upon his discussions with the defendant, he believed that the defendant had a "good knowledge of his file."
During the colloquy, the court noted that this "is not a straightforward case, " that defense counsel was the sixth attorney who had been assigned to the case, and that counsel had completed a "significant amount of work" on the case, including the retention of an expert. The defendant requested a six-month continuance to prepare for self-representation at trial. The court advised the defendant that it would not continue the case, and that he could either have his appointed counsel represent him at trial, or he could represent himself. After the defendant advised the court that he wished to represent himself, the court gave him "24 hours" to think it over and advised the parties to appear for a hearing the next morning. The following morning, the defendant advised the court that he wished to be represented by his appointed counsel. Defense counsel informed the court that he had met with the defendant after the previous day's hearing, that the defendant understood the complexities of defending the case at trial, and that the defendant had asked him to stay on the case.
Four days later, however, immediately before jury selection, defense counsel advised the court that the defendant was being "difficult today, " and that he was again expressing dissatisfaction with counsel. The defendant argues that at this stage the court failed to conduct an adequate inquiry into the reasons for his continuing dissatisfaction with counsel. The record shows that the defendant was upset on this date because he believed that his counsel should have retained an expert to address the location of blood on the airbag in the defendant's vehicle. Defense counsel explained to the court that he did not believe that it was necessary to retain an airbag expert because the State's expert would be testifying only as to the DNA analysis, not to the location of the blood. The defendant also complained that he had "not seen all the evidence that has been brought forth against [him], " including evidence that the State had provided to defense counsel only days earlier. The court advised the defendant that he would have time to consult with his counsel before trial, which was not scheduled to begin until several days later. The defendant also complained that his counsel had rejected his request to depose three victims of the crime, as well as his request to object to certain DNA evidence. In addition, the defendant informed the court that his counsel suggested that for $100, 000, "he could help me a lot better, " although the defendant admitted that his counsel told him that he had misinterpreted the subject comment, and had assured him that he had "put [his] heart and soul in this case." Finally, the defendant advised the court that he had filed a complaint with the bar association against his counsel, which would create a conflict of interest prohibiting counsel from representing him in the case. The trial court advised the defendant that he could not "create [his] own conflict of interest in order to delay this trial." The court found that the defendant was not waiving his right to effective assistance of counsel and ruled that the defendant would be represented by his appointed counsel and that he could address any issues regarding counsel's representation after trial if he were convicted.
Based upon this record, we conclude that the trial court conducted an adequate inquiry into the reasons for the defendant's continuing dissatisfaction with his appointed counsel prior to jury selection, particularly in light of its inquiry the previous week in response to counsel's motion to withdraw. Accordingly, we cannot conclude that the court unsustainably exercised its discretion in its ruling. See State v. Moussa, 164 N.H. at 114.
The defendant next argues that the trial court erred in admitting his federal conviction for aiding and abetting a bank robbery. The record shows that the defendant was charged in this case with second degree assault, reckless conduct, disobeying a police officer, and other crimes in connection with his operation of a motor vehicle on September 18, 2009. Prior to trial, the defendant had pled guilty in federal court to aiding and abetting a bank robbery on the same date by driving a vehicle used by a person who had robbed a bank. The State moved in limine to admit the federal conviction, arguing that it was relevant to prove the identity of the driver, since the evidence showed that the vehicle had two occupants. The defendant objected, arguing that the conviction was inadmissible under New Hampshire Rules of Evidence 403 and 404(b) because it was unfairly prejudicial. The trial court found that the conviction constituted evidence of other crimes for purposes of Rule 404(b), but that it was relevant to the issues of identity and intent, two of the central issues in the case, and that its probative value was not substantially outweighed by the danger of unfair prejudice. On appeal, the defendant argues that the trial court erred in admitting the conviction under Rules 403 and 404(b) because it had "virtually" no probative value and "undoubtedly served to provoke the jury's instinct to punish him."
"We review challenges to a trial court's evidentiary rulings under our unsustainable exercise of discretion standard and reverse only if the rulings are clearly untenable or unreasonable to the prejudice of a party's case." State v. Noucas, 165 N.H. 146, 158 (2013) (quotation omitted). "In determining whether a ruling is a proper exercise of judicial discretion, we consider whether the record establishes an objective basis sufficient to sustain the discretionary decision made." Id. "The defendant bears the burden of demonstrating that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case." Id.
"Under the balancing test common to Rules 403 and 404(b), we examine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant." State v. Tabaldi, 165 N.H. 306, 322 (2013). "Under both rules, evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case." Id. (quotation omitted). "Among the factors we consider in weighing the evidence are: (1) whether the evidence would have a great emotional impact upon a jury; (2) its potential for appealing to a juror's sense of resentment or outrage; and (3) the extent to which the issue upon which it is offered is established by other evidence, stipulation or inference." Id. "The trial court is in the best position to gauge the prejudicial impact of particular evidence." State v. Nightingale, 160 N.H. 569, 575 (2010) (quotation omitted). "Thus, we give the trial court broad latitude when ruling on the admissibility of potentially unfairly prejudicial evidence." Id.
The conviction provided evidence that the defendant was driving a motor vehicle shortly before the commission of the driving-related offenses for which he was charged in this case, and that an occupant in the defendant's vehicle had robbed a bank on the same date. The record thus supports the trial court's findings that the evidence was relevant to the issues of identity and intent, and that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to the defendant. See N.H. R. Ev. 403, 404(b). Accordingly, we conclude that the trial court did not unsustainably exercise its discretion in admitting the conviction. See State v. Noucas, 165 N.H. at 158.
CONBOY, LYNN and BASSETT, JJ., ...