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State v. Shaw

Supreme Court of New Hampshire

October 31, 2018

State of New Hampshire
v.
John Shaw

         The court on October 31, 2018, issued the following order:

         The defendant, John Shaw, appeals his conviction, following a jury trial in Superior Court (Howard, J.), on multiple charges of negligent homicide, see RSA 630:3 (2016), and a charge of possession of marijuana, see RSA 318-B:2, I (2017). He contends that the trial court erred by: (1) denying his motion for a new trial on the basis of ineffective assistance of counsel; (2) not allowing his new expert to testify at the hearing on his motion for a new trial; and (3) declining to rule upon his motion for further discovery. We affirm.

         We first address whether the trial court erred in finding that the defendant's trial counsel was not ineffective. The defendant bases his claim upon the New Hampshire and Federal Constitutions. We first address the defendant's claim under the State Constitution and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

         To prevail upon 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. State v. Whittaker, 158 N.H. 762, 768 (2009). To meet the first prong of this test, the defendant "'must show that counsel's representation fell below an objective standard of reasonableness.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). 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.'" Id. (quoting Strickland, 466 U.S. at 694).

         "'[B]oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.'" Id. (quoting Strickland, 466 U.S. at 698). Accordingly, 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.

         Like the trial court, we begin by examining the defendant's trial counsel's performance. "'[T]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)). To establish that his trial attorney's performance fell below this standard, the defendant must show that no competent lawyer would have defended or litigated the matter in the same manner as the defendant's trial counsel. Id. at 768-69. "'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.'" Id. at 769 (quoting Strickland, 466 U.S. at 689). "'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.'" Id. (quoting Strickland, 466 U.S. at 689).

         In this case, like the trial court, we will assume, without deciding, that competent trial counsel would have consulted with an accident reconstruction expert, as the defendant's trial counsel testified he did. Trial counsel testified that an accident reconstruction expert, retained by the defendant's prior counsel, conducted "a complete accident reconstruction project," that he had worked with the expert in the past, and that the expert's staff was highly qualified. The defendant criticizes the expert for not examining the scene of the accident. However, trial counsel testified only that he did not know whether the expert had gone to the scene and did not consider it imperative.

         Trial counsel testified that he consulted with the expert, by telephone, two or three times to discuss "[c]ausation, point of impact, and speed" and asked questions about the expert's analysis. The expert concurred with the State's accident reconstruction report and had nothing to contradict it. Trial counsel and the expert discussed the similarities between the defendant's expert's findings and those of the State's expert. The defendant's expert advised that it would not behoove the defendant to have a written report of the expert's findings.

         The defendant has the burden to establish that trial counsel's performance was not reasonable. See id. at 768. The defendant argues that "[a] few phone calls without further information is insufficient to prove that trial counsel provided a constitutionally satisfactory performance." The defendant criticizes trial counsel's decision not to obtain a written report from the expert. He challenges trial counsel's concern that, if the expert had prepared a written report, the State might have obtained a copy. Although the defendant's trial counsel may not have been required to disclose the expert's report if the defendant decided not to call the expert to testify at trial, the trial court could have reasonably concluded that declining a written report was a cautious tactical decision that was in the defendant's best interest.

         Furthermore, when the trial court posited that a detailed understanding of why the defendant's expert agreed with the State's expert might place ethical constraints upon trial counsel, the defendant responded that such a question was "up to the [trial] counsel to decide himself." We agree that such a decision lies within the purview of trial counsel's strategic and tactical considerations.

         The defendant argues that a written expert report was essential to prepare for the deposition and cross-examination of the State's expert. However, trial counsel testified that he had experience working with accident reconstruction experts and that, after speaking with the defendant's expert, he "underst[ood] the parameters of the accident reconstruction" in this case. He further testified that a report from the defendant's expert would not have been helpful in preparing for the deposition because it would have merely confirmed the State's expert's work. Apparently, trial counsel reviewed the State's expert's report closely because he found that the State had under-reported the defendant's speed. When cross-examining the State's expert, trial counsel emphasized that the expert's report did not foreclose the defendant's account of the accident. The trial court could have reasonably accepted trial counsel's testimony that his cross-examination had been effective.

         The defendant argues that trial counsel "may not fail to conduct a meaningful investigation of an expert's opinion and then rely on the resulting ignorance to excuse his failure to explore a strategy that would have likely yielded exculpatory evidence." See id. at 775. However, he does not specify whether he is referring to the State's expert's opinion or the defendant's expert's opinion, nor does he identify any likely exculpatory evidence. The trial court could have reasonably concluded that trial counsel investigated both experts' opinions by discussing "[c]ausation, point of impact, and speed" several times with the defendant's expert. To the extent that the defendant argues that a written report from his expert "was critical to advise [him] as to . . . any decision to seek a negotiated disposition," we disagree. As just noted, the trial court could have reasonably concluded that trial counsel investigated both experts' opinions and that declining a written report was in the defendant's best interest. Furthermore, the State informed the trial court that the defendant had "precluded any negotiations; he wanted his trial."

         Based upon this record, we conclude that the trial court's determination that trial counsel's performance was not constitutionally deficient is supported by the evidence and not legally erroneous. See id. at 768. In light of this conclusion, we need not address whether the defendant was prejudiced by trial counsel's performance. See id. at 775. The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. Id. at 768. Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution.

         We next address whether the trial court erred by not allowing the defendant's new expert to testify at the hearing on the motion for a new trial. We review a trial court's decision on the admissibility of evidence under our unsustainable exercise of discretion standard. State v. Letarte, 169 N.H. 455, 461 (2016). For the defendant to prevail under this standard, he must demonstrate ...


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