Argued: February 10, 2016
Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.
Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on the brief and orally), for the defendant.
Following a jury trial in Superior Court (Wageling, J.), the defendant, Eric R. Cable, appeals his conviction for negligent homicide – driving under the influence of intoxicating liquor (DUI), see RSA 630:3, II (2007), and the trial court's denial of his motion for a new trial based upon ineffective assistance of counsel. On appeal, he argues that the evidence was insufficient to prove, beyond a reasonable doubt, that he caused the victim's death and that his trial counsel rendered constitutionally ineffective assistance by failing to object to the admission of certain evidence and to certain statements by the prosecutor in his opening statement and closing argument. We affirm.
I. Brief Procedural History
The relevant facts follow. In April 2013, a grand jury indicted the defendant on alternate counts of negligent homicide. See RSA 630:3, I (2007), II; see also State v. Wong, 125 N.H. 610, 618-20 (1984) (explaining that, under RSA 630:3, I, II, the culpability requirement of negligent homicide may be satisfied either by showing that a person caused the death of another negligently or by establishing that the person caused the death in the course of driving while under the influence).
The first count alleged that, on or about July 14, 2012, the defendant committed the crime of negligent homicide – DUI when he "operat[ed] a powerboat on Northwood Lake" while under the influence of intoxicating liquor and that, as a consequence of being under the influence, he caused the death of the victim "in that, while [the victim] was riding on the gunwales or straddling the bow" of the boat, the defendant "maneuvered said boat in a manner that resulted in [the victim] falling overboard and being struck by the boat, drive and spinning propeller." See RSA 630:3, II.
The second count alleged that the defendant committed the crime of negligent homicide on or about July 14, 2012, when he "negligently[ ] caused the death of [the victim]" by allowing him "to ride on the gunwales or straddle the bow" when the defendant "executed a turning maneuver striking the wake of another boat, resulting in [the victim] falling overboard and being struck by the boat, drive and spinning propeller." See RSA 630:3, I.
A jury convicted the defendant on both counts. However, the State nolle prossed the second count, and the trial court sentenced the defendant only for the first count (negligent homicide – DUI). In addition, the trial court found the defendant guilty of two violation-level offenses: (1) failure to display a proper vessel number as part of the registration process, see RSA 270-E:8 (2010); and (2) failure to obtain a boater safety education certificate, see RSA 270-D:10 (2010).
Thereafter, the defendant filed a direct appeal of his negligent homicide – DUI conviction. After doing so, he filed in the trial court a motion for a new trial based upon ineffective assistance of counsel. The defendant has not provided a transcript of any hearing that might have been held on that motion. At oral argument, the State represented, and the defendant did not dispute, that the trial court did not hold an evidentiary hearing on the motion for a new trial. The record does not establish that the defendant ever requested such a hearing.
The trial court denied the defendant's motion, and his discretionary appeal of the trial court's denial followed. We consolidated the defendant's direct and discretionary appeals.
II. Direct Appeal
We first address the defendant's direct appeal of his negligent homicide – DUI conviction in which he argues that the evidence was insufficient to prove, beyond a reasonable doubt, that his operation of the boat while under the influence of intoxicating liquor caused the victim's death. Because a challenge to the sufficiency of the evidence raises a claim of legal error, our standard of review is de novo. State v. Collyns, 166 N.H. 514, 517 (2014).
To prevail upon a challenge to the sufficiency of the evidence, the defendant must demonstrate that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. Id. In such a challenge, "we objectively review the record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Zubhuza, 166 N.H. 125, 128 (2014) (quotation omitted).
To convict the defendant of negligent homicide – DUI, the State was required to prove, beyond a reasonable doubt, that: (1) the defendant was under the influence of intoxicating liquor; (2) when he operated a propelled vehicle; and (3) caused the death of another. RSA 630:3, II. At trial, the defendant conceded that he operated a propelled vehicle within the meaning of the statute. He also stipulated that the victim died "by drowning after receiving blunt penetrating injuries to his head, neck and chest as a result of being struck by the boat[, ] drive and spinning propeller of the boat in which he had been a passenger." Additionally, for the purposes of this appeal, the defendant does not contest the sufficiency of the evidence that he was under the influence of intoxicating liquor when he operated the boat. Thus, the only issue for us to consider is whether the defendant's impairment caused the victim's death. See State v. Whittaker, 158 N.H. 762, 766 (2009); see also Wong, 125 N.H. at 620 (to sustain a conviction for negligent homicide – DUI, the State must establish a causal connection between the person's driving under the influence, the subsequent collision, and the resulting death).
Although the defendant refers to the standard we apply when evidence to prove an element is solely circumstantial, see State v. Germain, 165 N.H. 350, 361 (2013), that standard does not apply here because the evidence of causation was both direct and circumstantial, see State v. Saunders, 164 N.H. 342, 349-52 (2012). Based upon our review of the evidence as a whole and all reasonable inferences therefrom, viewed in the light most favorable to the State, we conclude that it was sufficient to allow a rational trier of fact to find that the defendant's impairment caused the victim's death.
The jury viewed the boat. Also, the jury heard from multiple witnesses that, before falling overboard, the victim had been sitting either on the bow or the gunwales of the boat. The jury also heard testimony that although "bow rider[s], " like the defendant's boat, are "common" in New Hampshire, it is "not commonplace" for passengers of such boats to fall overboard. The jury heard as well, from multiple witnesses, that the victim fell overboard when the defendant, operating the boat at approximately 20 miles per hour, turned it into one or more waves. In a written statement he gave at the scene, the defendant stated that the victim "fell off the front right side of the boat" when the defendant "turned around and hit a wave." On the evening of the incident, the defendant told a Northwood Lake resident that his "friend was sitting on the bow of the boat with his legs over, and they hit a wave and he got dragged into the water." (Quotation omitted.) At trial, the defendant testified that, when he turned the boat, it "went over some small waves, " which made "the boat . . . pitch and yaw" and caused the victim to lose his balance and fall overboard.
The jury also heard that, on the afternoon of the incident, before the victim fell to his death, the defendant had been drinking alcohol. There was evidence that there were more than 100 alcoholic beverage containers on the boat, 89 of which were empty. One witness described the defendant as "definitely under the influence, " becoming "sloppy" and "a little wild" as the day wore on. She estimated that both the defendant and the victim had had more than eight alcoholic drinks over the course of approximately three and one-half hours. A criminal toxicology expert estimated that, at the time of the incident, the defendant's blood alcohol concentration was .133. See RSA 265-A:2, II (2014) (making it unlawful to operate a boat with a blood alcohol concentration of .08 or more).
Further, Joshua Dirth, a marine patrol sergeant, testified that it was unlawful for a passenger to sit on the gunwales or bow while a motorboat is being operated. See RSA 270-D:7 (2010) (providing that "[n]o person shall operate a motorboat or ride as a passenger in a motorboat while sitting on either the starboard or port gunwales or the transom, and no person shall straddle the bow while the motorboat is in operation underway"). Dirth also testified that, had he observed the defendant operating the boat with the victim seated on the bow or gunwales, he would have stopped the boat and charged the defendant with misdemeanor careless and negligent operation. See RSA 270:29-a (2010) (providing that "[a]ny person who shall operate a power boat upon any waters of the state in a careless and negligent manner or so that the lives and safety of the public are endangered shall be guilty of a misdemeanor").
Based upon all of the evidence, a rational trier of fact could have reasonably inferred that the defendant's impairment caused him to allow the victim to sit on the bow or gunwales, even though it was unlawful for the victim to do so. See RSA 270-D:7. A rational trier of fact could also have reasonably found that the defendant's impairment caused him to turn the boat through a wave while the victim was so sitting. Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the State, we are unable to conclude, as a matter of law, that no rational trier of fact could have found, beyond a reasonable doubt, that the defendant's impairment caused the victim's death. See Whittaker, 158 N.H. at 766.
III. Discretionary Appeal
We next consider the defendant's discretionary appeal of the trial court's denial of his motion for a new trial based upon ineffective assistance of counsel. The defendant's claim of ineffective assistance rests upon both the State and Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI, XIV. We first address the defendant's claim under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).
Both the State and Federal Constitutions guarantee a criminal defendant reasonably competent assistance of counsel. State v. Thompson, 161 N.H. 507, 528 (2011); see Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail upon his claim, the defendant must demonstrate, "first, that counsel's representation was constitutionally deficient and, second, that counsel's deficient performance actually prejudiced the outcome of the case." State v. Hall, 160 N.H. 581, 584 (2010) (quotation omitted); see Strickland, 466 U.S. at 687.
"To meet the first prong of this test, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Thompson, 161 N.H. at 528 (quotation omitted); see Strickland, 466 U.S. at 688. "We judge the reasonableness of counsel's conduct based upon the facts and circumstances of that particular case, viewed from the time of that conduct." Hall, 160 N.H. at 584; see Strickland, 466 U.S. at 690. As we have explained:
Judicial scrutiny of counsel's performance must be highly deferential. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Hall, 160 N.H. at 584-85 (quotation omitted). The strong presumption that counsel's conduct is objectively reasonable "has particular force" in this case because, without an evidentiary hearing on the defendant's ineffective-assistance claim, we have "no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive." Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (quotation omitted). Because "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms[, ] [t]o establish that his trial attorney's performance fell below this standard, the defendant has to show that no competent lawyer" would have engaged in the conduct of which he accuses his trial counsel. Whittaker, 158 N.H. at 768-69 (quotations and citation omitted).
"To meet the second prong, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Thompson, 161 N.H. at 528 (quotation omitted); see Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 161 N.H. at 528 (quotation omitted); see Strickland, 466 U.S. at 694. "The prejudice analysis considers the totality of the evidence presented at trial." State v. Kepple, 155 N.H. 267, 270 (2007).
"Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact." Hall, 160 N.H. at 585. "Therefore, we will not disturb the trial court's factual findings unless they are not supported by the evidence or are erroneous as a matter of law, and we review the ultimate determination of whether each prong is met de novo." Id. "On appeal, when we determine that a defendant has failed to meet either prong of the test, we need not consider the other one." Kepple, 155 N.H. at 270.
The defendant argues that his trial counsel was ineffective because he failed to object to evidence that the defendant: (1) violated New Hampshire boating laws by operating the boat while the victim was seated on the bow or gunwales; (2) did not have a boating license; (3) had not taken a boater safety course; (4) did not display the correct vessel number on his boat; and (5) had driven the boat earlier that day with too many people on board. He also argues that his trial counsel was ineffective for failing to object to the prosecutor's allegedly improper comments in his opening statement and closing argument. We examine each allegation in turn.
A. Evidence that the Defendant Unlawfully Operated the Boat while the Victim was Seated on the ...