State v. Colbert , 139 N.H. 367 ( 1995 )

BATCHELDER, J.,

concurring specially: I concur in the result reached by the majority. In my view, the defendant’s right at issue in State v. Dushame, 136 N.H. 309, 616 A.2d 469 (1992), was a statutory right; we held reversal to be the proper remedy for violation of that right because the statute “touche[d] upon the integrity of the deliberative process of the jury,” id. at 315, 616 A.2d at 472, and was therefore constitutional in flavor. Id. Because the defendant in this case was not deprived of a twelve-person, constitutionally adequate jury, I cannot agree with the dissent that no objection by the defendant at trial was required to preserve the issue for appeal. It is this failure to object that sets this case apart from Dushame.

I agree with the majority that trial counsel’s failure to object did not constitute ineffective assistance of counsel. The United States Supreme Court has recently refined the prejudice inquiry of the ineffectiveness analysis to “focus [] on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993). Because the trial judge, by polling the alternate and directing the jury to begin deliberations anew, followed the procedures we subsequently outlined in Opinion of the Justices (Alternate Jurors), 137 N.H. 100, 104-05, 623 A.2d 1334, 1337-38 (1993), I cannot conclude that counsel’s omission resulted in prejudice as thus defined.