State of New Hampshire v. Keith Chandler ( 2023 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Belknap
Nos. 2019-0314
2021-0314
THE STATE OF NEW HAMPSHIRE
v.
KEITH CHANDLER
Argued: October 18, 2022
Opinion Issued: October 25, 2023
John M. Formella, attorney general, and Anthony J. Galdieri¸ solicitor
general (Sam M. Gonyea, attorney, on the brief, and Audriana Mekula,
attorney, orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.
HICKS, J. The defendant, Keith Chandler, appeals his convictions,
following a jury trial in the Superior Court (O’Neill, J.), on five counts of
aggravated felonious sexual assault, RSA 632-A:2, I(1), III (2016), two counts of
attempted aggravated felonious sexual assault, RSA 632-A:2, I, (j)(1) (Supp.
2022), and two counts of felonious sexual assault, RSA 632-A:3, III(a)(1) (Supp.
2022). The defendant argues that the trial court erred when it: (1) denied his
motion in limine to preclude the admission of a printed image of electronically
stored information; (2) denied his motion for a new trial based upon ineffective
assistance of counsel; and (3) failed to disclose records following in camera
review. We affirm in part, but remand for the trial court to review the
confidential records in accordance with the standard set forth in State v.
Girard, 173 N.H. 619 (2020).
The record supports the following facts. The victim’s biological parents
divorced when she was young and her mother then married the defendant.
The victim lived with her mother and the defendant for most of her childhood.
In late 2016, the victim told her boyfriend that the defendant had sexually
assaulted her, but threatened to break up with him if he told anyone. After the
victim and the boyfriend broke up for unrelated reasons, they continued to
communicate on social media. The boyfriend encouraged the victim to tell the
authorities about her allegations against the defendant, and gave her a
deadline for doing so. When the deadline passed, the boyfriend told his
therapist about the allegations, who reported the information to the New
Hampshire Division for Children, Youth and Families (DCYF). When the police
and DCYF social workers went to the family’s home to interview the victim, she
initially told them, “I know why you’re here but it’s not true,” but later told
them the defendant had sexually assaulted her. In December 2016, the
defendant was indicted on six counts of aggravated felonious sexual assault,
two counts of attempted aggravated felonious sexual assault, and two counts of
felonious sexual assault. During the trial, the State nolle prossed one of the
aggravated felonious sexual assault indictments.
Prior to trial, the defendant filed a motion in limine to preclude
admission of a printed image of a screenshot of Facebook messages the victim
allegedly sent to the boyfriend. The image was of a screenshot the victim took
of an exchange between her and the defendant on Facebook Messenger.
According to the motion, the victim sent this screenshot to the boyfriend,
deleted it from her phone, and later asked the boyfriend to send it back to her.
At the hearing on the motion, the defendant submitted the screenshot
reflecting the following:
Dad: My dick is
Wanna see
Account owner: No
Dad: Liar
Account owner: No
Dad: Yup
Account owner: Please stop.
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In a written order issued prior to trial, the trial court denied the defendant’s
motion, stating, in part:
Upon review, the Court concludes that the State has offered sufficient
evidence to support a finding that the evidence in question is what it
claims to be. In support of authentication, the State proffered [that the
victim] will testify that she received messages like this from defendant
routinely, this is the way he communicated with her regularly, that he
sent many messages to her from this account, the avatar on the
messages is the photograph the defendant used for his Facebook account
around the same time, and that she was the recipient of this message.
[The victim] will also testify that she took a screen shot of these messages
and sent it to [the boyfriend]. [The boyfriend] will testify that he received
this screenshot from [the victim] and that he still has this screen shot.
The Court concludes that this is sufficient to support a finding that the
messages are messages from the defendant, and the ultimate
determination of the author of the messages is left to the jury.
A photograph of the screenshot was ultimately admitted into evidence at trial
as State’s Exhibit 1.
The State called four witnesses at trial—the victim, the boyfriend, and
two of the investigating officers. The victim testified that the defendant
regularly sexually abused her from the age of 11 or 12 until she was
approximately 16. She estimated that the defendant forcibly had sexual
intercourse with her 30 times, forced her to perform oral sex on him 25 times,
and forcibly performed oral sex on her 10 times. She testified that she
mentioned the abuse to her mother when she was 12 or 13 years old and her
mother asked her “what [she] wanted to do.” The victim testified that her
mother told her that “[the defendant] has a lot of health issues” and “that’s why
he would do something like that.” The victim also testified that as a
consequence of that conversation, she was “scared” to report the abuse to any
figure of authority, because if “her mom doesn’t do anything about it, why
would anybody else.” In addition to the sexual abuse, the victim testified that
she communicated with the defendant on Facebook “multiple times a day,” and
that he would “send [her] pictures of pornography, video links to different
pornography sites, [and] messages relating to him wanting to have sex.” The
victim also testified that because the defendant had her username and
password, he was able to delete the messages after she read them.
According to the testimony of one of the investigating officers, the victim
had informed the police that she received messages or images via text message
or through Facebook Messenger, that she did not have any of the phones that
she received messages on, and that she did not keep any of the messages on
Facebook Messenger that she had received from the defendant. When the
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investigating officer was asked on cross-examination whether he knew that it
was possible to get photos and messages that have been deleted, he explained,
“not from Facebook Messenger. Facebook does not hold on to that. So once
somebody deletes something from their Facebook account, it’s gone.”
The victim testified that she eventually told the boyfriend about the
sexual abuse and sent him a screenshot of messages the defendant had sent to
her on Facebook. She identified State’s Exhibit 1 as “the message [the
defendant] had sent [her]” and as the “screenshot that [she] had sent [the
boyfriend].” She testified that she knew from the screenshot that the defendant
sent the messages because of “the photo icon next to each message that [the
defendant] had sent.” The photo icon was the “profile picture of the
[defendant’s] Facebook profile,” and was a “picture taken of [the victim], [her]
mother, and [the defendant] at a Halloween party.”
The boyfriend testified at trial regarding an incident that occurred while
he and the victim, who were dating at the time, were watching a movie at her
home. He and the victim were sitting together on the couch when a notification
appeared on her phone containing a pornographic picture of two people having
sex. When the victim opened her phone, he “could see it was from [the
defendant].” He asked about the picture, but the victim “just shut [him] down
and dismissed all [his] questions,” and told him to “just leave it alone.” Several
months later, however, the victim “broke down and told [him] that [the
defendant] had raped her.” The boyfriend also testified that he received a
screenshot of a message thread, and that the cell phone pictured in State’s
Exhibit 1, the screen of which depicted the screenshot the victim sent him, was
a photograph of his cell phone. He stated that he recognized the avatar next to
the messages sent by the defendant as the defendant’s “profile picture,” which
was a picture of the victim, her mother, and the defendant on Halloween. He
recognized the picture because “[he] was with them on Halloween” and might
have taken the picture himself.
The defense did not call any witnesses at trial, but challenged the
victim’s credibility on cross-examination. In doing so, counsel established that
the victim had numerous opportunities to report the abuse, but did not do so,
that the victim had alleged that the defendant’s cousin had sexually assaulted
her, and that the cousin was tried and had been acquitted. Defense counsel
also asserted that the victim had accused the boyfriend of rape, and confronted
her with messages in which she appeared to allege that the boyfriend had
raped her. In addition, defense counsel cross-examined the victim about a
specific incident the victim had discussed during her Child Advocacy Center
interview. She had reported during the interview that she was on a couch
watching a movie and was seated between her mother and the defendant when
the defendant put his hands down her pants and moved them toward her
crotch area. The victim reported that she tried to pull away, but the defendant
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held her down and put his fingers in her vagina. During cross-examination,
defense counsel pointed out that the victim’s mother was “sitting right next to
[her]” while this was happening, and somehow “didn’t know it was happening.”
The jury convicted the defendant on nine charges, and the defendant
appealed. While the appeal was pending, the defendant filed a motion for a
new trial in superior court, and the direct appeal was stayed pending the
superior court’s resolution of the motion. The superior court subsequently
denied the motion for a new trial, and the defendant filed a discretionary
appeal, which we accepted and consolidated with his direct appeal.
I. Motion in Limine
We first address the defendant’s argument that the trial court erred when
it denied his motion in limine to preclude the admission of State’s Exhibit 1.
The defendant argues that the photograph of the screenshot should not have
been admitted because: (1) it was not properly authenticated under New
Hampshire Rule of Evidence 901(a); and (2) it violated the best evidence
standards of New Hampshire Rules of Evidence 1002 and 1003.
The defendant argued in his motion in limine that the State could not
prove that the defendant was the individual who sent the message, and nothing
in the content of the message suggested that the defendant had authored it.
The defendant also argued that the evidence should be excluded because the
image was part of a broader conversation, and it was possible that the broader
conversation could be exculpatory or “show the available part of the
conversation in a different context.”
We generally review evidentiary rulings to determine whether the trial
court unsustainably exercised its discretion in admitting or excluding evidence.
See State v. Brown, 175 N.H. 64, 66 (2022). The defendant nevertheless
asserts that the trial court’s ruling was based solely on its interpretation of the
rules of evidence and not on any factual determination, and, therefore, we
should review the decision de novo. We recognize that there may be some
circumstances in which de novo review of an evidentiary ruling is appropriate.
See, e.g., State v. Jesenya O., 514 P.3d 445, 448 (N.M. 2022) (court reviews “de
novo the threshold legal question as to the proper framework within which to
analyze a particular evidentiary issue”); State v. Saucier, 926 A.2d 633, 641
(Conn. 2007) (“[t]o the extent a trial court’s admission of evidence is based on
an interpretation of the Code of Evidence, our standard of review is plenary”).
However, we agree with the State that the defendant has not identified any
language from the rules of evidence that the trial court interpreted. Nor has
the defendant asserted that the trial court applied the wrong framework within
which to analyze the evidentiary issues in this case. The defendant’s
arguments are grounded in whether the facts are sufficient to support the trial
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court’s finding that the Facebook messages were sufficiently authenticated and
did not violate the best evidence rule or New Hampshire Rule of Evidence 106.
Accordingly, we review the trial court decision to determine “whether the record
establishes an objective basis sufficient to sustain the discretionary decision
made.” Brown, 175 N.H. at 66. “To show an unsustainable exercise of
discretion, the defendant must demonstrate that the trial court’s ruling was
clearly untenable or unreasonable to the prejudice of his case.” Id. “Because
we are reviewing the trial court’s pretrial rulings, we limit our review to the
proffers presented to the court at the pretrial motion hearing.” Id.
A. Authentication
New Hampshire Rule of Evidence 901(a) provides that “[t]o satisfy the
requirement of authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” N.H. R. Ev. 901(a). The bar for authentication of an
exhibit is not particularly high, and the proponent need not rule out all
possibilities inconsistent with authenticity, or prove beyond any doubt that the
evidence is what it purports to be. State v. Strangle, 166 N.H. 407, 409 (2014).
The proof necessary to connect an evidentiary exhibit to a defendant “may be
made by circumstantial evidence,” and the State need only demonstrate “a
rational basis from which to conclude that the exhibit did, in fact, belong to”
the defendant. State v. Reid, 135 N.H. 376, 383 (1992) (quotation omitted).
As one court recently observed:
With the increased use of social media evidence in litigation, courts
nationwide have grappled with the question of whether the
authenticity of evidence from social media platforms is properly
measured under the traditional rules of authentication found in
Federal Rule of Evidence 901 and its many state counterparts . . .
or instead, whether judicial concerns over the increased dangers of
falsehood and fraud posed by the relative anonymity of social
media evidence warrant the adoption of heightened authentication
standards.
Jesenya O., 514 P.3d at 449. We addressed this question in State v. Palermo,
168 N.H. 387, 391 (2015), in which we declined to adopt a heightened standard
of authentication after concluding that “our established rules governing
authentication [were] sufficient” to address the authentication of Facebook
messages in that case.
At issue in Palermo were messages the defendant had sent from a
Facebook account the victim’s son had set up for the defendant on the family’s
iPad. Palermo, 168 N.H. at 391-94. Prior to trial, the defendant sought to
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exclude evidence of the messages unless the State could properly authenticate
them. Id. at 391. The State proffered that the victim’s son would testify that
(1) he took the defendant’s photograph after the defendant moved
in with his family; (2) he created a Facebook account for the
defendant using the defendant’s photograph; and (3) he showed
the defendant how to use the family’s iPad and the Facebook
website. In addition, the State proffered that it would present
evidence that the defendant used the iPad around the time the
messages were sent, that the messages were sent from the iPad,
and that the defendant’s release from prison and subsequent
arrival at the victim’s home coincided with the creation of the
Facebook account. The State also asserted that it would present
evidence that the messages contained information only a
few individuals would know and that the information pertained
specifically to the defendant’s conduct.
Id. at 393. We noted in Palermo that “[a]lthough Rule 901(a) requires the
proponent to present evidence of authenticity, the rule does not establish
formal requirements as to the nature or quantum of proof.” Id. at 392. Rule
901(b), however, provides a non-exhaustive list of examples of methods of
authentication or identification that conform to the requirements of Rule
901(a). Examples include:
(1) Testimony of a Witness with Knowledge – Testimony that an item is what
it is claimed to be.
....
(4) Distinctive Characteristics and the Like – The appearance, contents,
substance, internal patterns, or other distinctive characteristics of the
item, taken together with all the circumstances.
N.H. R. Ev. 901(b)(1), (4). Considering the facts presented in Palermo in light of
these examples, we concluded that the State’s proffered authentication
evidence “contained sufficient identifying details to link the authorship of the
messages to the defendant.” Id. at 393.
In the present case, the State proffered at the hearing on the motion in
limine that the victim would testify that she was the recipient of the message,
that she communicated with the defendant frequently over Facebook, that he
had sent her many messages similar to the ones depicted in the screenshot,
and that she sent the screenshot to the boyfriend. The State proffered that the
victim would also testify that the avatar on the messages is the photograph the
defendant used for his Facebook account around the same time. In addition,
the State proffered that the boyfriend would testify to receiving the screenshot
from the victim. Considering these facts in light of the examples set forth in
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Rule 901(b)(1) and (4), we conclude that the State provided sufficient evidence
to establish the prima facie case required for authentication. Brown, 175 N.H.
at 68-69.
The defendant argues that the evidence was insufficient to support a
finding that he sent the messages because: (1) the evidence did not indicate the
username from which the messages were sent; and (2) the messages
themselves did not indicate that the defendant was the author. We disagree.
As we have noted, while the username is not indicated, the messages were sent
from a Facebook account with the same profile picture the defendant used on
his Facebook account. The defendant points to case law stating that evidence
that a defendant’s name is written as the author of an email or that the
electronic communication originates from an email or social networking site is,
alone, not sufficient to authenticate the communication as having been sent by
the defendant. See Commonwealth v. Purdy, 945 N.E.2d 372, 381 (Mass.
2011); Tienda v. State, 358 S.W.3d 633, 641-42 (Tex. Crim. App. 2012). We
recognize, as the court of appeals stated in Tienda, “[t]hat an email on its face
purports to come from a certain person’s email address, that the respondent in
an internet chatroom dialogue purports to identify himself, or that a text
message emanates from a cell phone number assigned to the purported author
– none of these circumstances, without more, has typically been regarded as
sufficient to support a finding of authenticity.” Tienda, 358 S.W.3d at 641-42.
“[A]s with the authentication of any kind of proffered evidence, the best or most
appropriate method for authenticating electronic evidence will often depend
upon the nature of the evidence and the circumstances of the particular case.”
Id. at 639.
In this case, while the messages themselves did not indicate that the
defendant was the author, the State proffered at the hearing that the victim
would testify that she received messages like this from the defendant routinely,
this is the way he communicated with her regularly, and that he sent many
messages to her from this account. We conclude that this evidence is sufficient
to support a finding that the item is what the State claims it is. See Webb v.
State, 339 So. 3d 118, 126-29 (Miss. 2022) (trial court did not abuse its
discretion in admitting screenshots taken of Snapchat messages between
defendant and victim where victim testified about participating in the
communications captured in the screenshots and that they were a true and
accurate depiction of her snapchat conversations with defendant); People v.
Rodriguez, 190 N.E.3d 36, 38 (N.Y. 2022) (trial court did not abuse its
discretion in admitting screenshots of text messages where victim testified that
screenshots fairly and accurately represented text messages sent to and from
defendant’s phone); State v. Tieman, 207 A.3d 618, 621-22 (Me. 2019) (trial
court did not err in its determination that a Facebook Messenger conversation
was authenticated through the testimony of the person with whom the
deceased victim was communicating); Branch v. State, 863 S.E.2d 349, 353-54
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(Ga. Ct. App. 2021) (court held that the State made a prima facie showing that
text and Facebook messages were what they purported to be through testimony
of the victim who identified the various messages sent by the defendant to her);
Strunk v. State, 44 N.E.3d 1, 5 (Ind. Ct. App. 2015) (trial court did not abuse
its discretion when it admitted a message defendant sent to victim via
Facebook where victim testified she had communicated with defendant using
same profile page on previous occasions, knew it was the defendant’s page
because of the profile picture, and knew the screenshot was defendant’s
Facebook profile because they had two mutual friends, one of whom was the
victim’s mother, and victim’s mother also identified page as defendant’s
Facebook profile).
Neither of the cases the defendant cites in his brief supports a different
result. The defendant in Griffin v. State, 19 A.3d 415, 417 (Md. 2011),
challenged the authenticity of pages that allegedly were printed from his
girlfriend’s MySpace profile. The State introduced the printed pages, not
through the testimony of the girlfriend, but through the testimony of the lead
investigator in the case who testified that he went to the internet and
downloaded a page with a photograph of the girlfriend and the defendant on
the front that had a reference to “the children” and the girlfriend’s birthdate.
Id. at 418. On appeal, the court held that there were insufficient “distinctive
characteristics” on a MySpace Profile to authenticate the printout because
someone other than the girlfriend could have created the site and posted the
message at issue. Id. at 424. Similarly, at issue in United States v. Vayner,
769 F.3d 125 (2d Cir. 2014), was a printout of what the government asserted
was the defendant’s profile page from a Russian social networking site.
Vayner, 769 F.3d at 128. The court held that the trial court had abused its
discretion in admitting the webpage because there was no evidence that the
defendant had created the page or was responsible for its contents. Id. at 131.
In the present case, by contrast, the State proffered that the victim would
testify that she was the recipient of the message, that she communicated with
the defendant frequently over Facebook, that he had sent her many messages
similar to the ones depicted in the screenshot, and that the avatar on the
messages is the photograph the defendant used for his Facebook account
around the same time.
B. Best Evidence and Completeness
The defendant next argues that the trial court erred in admitting the
photograph of the screenshot of the text messages because it failed to satisfy
the best evidence rule for two reasons: (1) it was so far attenuated from the
messages the victim received that “it cannot reasonably be said” to be “an
original or duplicate of those messages”; and (2) it consisted of only part of a
conversation, and was “devoid of relevant context.” Assuming, without
deciding, that the issue was preserved, we conclude that the trial court did not
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unsustainably exercise its discretion in admitting the photograph of the
screenshot into evidence.
The best evidence rule originated at common law to “guarantee against
inaccuracies and fraud by insistence upon production of original documents.”
N.H. R. Ev. 1001 Reporter’s Notes. It has been codified at New Hampshire
Rules of Evidence 1001 to 1008. Id. The rule states that an “original” writing,
recording, or photograph is required to prove the content of a writing, N.H. R.
Ev. 1001, but that a “duplicate” may be admitted “to the same extent as the
original unless a genuine question is raised about the original’s authenticity or
the circumstances make it unfair to admit the duplicate.” N.H. R. Ev. 1003.
“For electronically stored information, ‘original’ means any printout—or other
output readable by sight—if it accurately reflects the information.” N.H. R. Ev.
1001(d). A “duplicate” is a “counterpart produced by a mechanical
photographic, chemical, electronic, or other equivalent process or technique
that accurately reproduces the original.” N.H. R. Ev. 1001(e).
Neither party disputes that the Facebook messages constitute “writings”
for the purposes of the best evidence rule. Furthermore, because “[a]
screenshot is an image created by copying part or all of the display on a
computer screen at a particular moment,” Commonwealth v. Talley, 265 A.3d
485, 534 (Pa. 2021) (quotation omitted), whether or not it is an “original” in the
sense that it is “other output readable by sight,” it certainly is a “duplicate”
because it has been “produced by a[n] . . . electronic process.” N.H. R. Ev.
1001(d), (e). We understand the defendant to argue that the duplicate should
not have been admitted because: (1) “a genuine issue was raised about the
original’s authenticity”; and (2) the screenshot did not contain certain metadata
indicating the date and time the screenshot was created or the device used to
create it. We also understand the defendant to argue that it was unfair to
admit the evidence because it was incomplete. We are unpersuaded by these
arguments.
As we have noted, the best evidence rule was designed to guard against
inaccuracies and fraud. State v. Leith, 172 N.H. 1, 9 (2019). “‘The purpose of
the rules requiring the production of original writings is simple and practical.
That purpose is to secure the most reliable information as to the contents of
documents, when those terms are disputed.’” Id. (quoting McCormick on
Evidence § 243.1, at 173 (7th ed. 2013) (brackets omitted)). As was stated
recently by the Supreme Court of Pennsylvania, “[a] screenshot is a
photographic process that produces an exact copy of whatever content
appeared on a digital device at the time it was taken. Typically, it guarantees
precision and does not suffer from the inaccuracy that the rule seeks to
prevent.” Talley, 265 A.3d at 535. The defendant in Talley had argued that the
best evidence rule precluded introduction of a screenshot of certain text
messages. Id. at 531-32. He did not argue that the screenshotting process
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altered the words contained in the messages, but instead challenged “the
omission of certain digital information from the trial exhibits—the metadata.”
Id. The Pennsylvania Supreme Court rejected this argument, noting that
“these are not the kinds of inaccuracies with which Rule 1001(e) is concerned.
Rather, the rule seeks to abate dangers of mistransmission and fraud. But [the
defendant] has not established that screenshotting is a method that presents
such dangers in theory or in fact.” Id. We find this reasoning persuasive, and
that it extends to a photograph of a screenshot.
The defendant, like the defendant in Talley, challenges the omission of
certain metadata that might have supported or refuted the authenticity of the
messages. He does not assert that the screenshotting or photographing
process altered the words contained in the text messages. As discussed above,
however, the State proffered that the victim would testify that the messages in
the screenshot were as they appeared on the display of her cellphone when she
received them. Accordingly, we conclude that the defendant failed to raise a
“genuine question” regarding the “original’s authenticity” or to identify
circumstances that make it “unfair to admit the duplicate.” N.H. R. Ev. 1003.
Furthermore, that the evidence “constituted merely a fragment” of the
conversation does not alter our analysis. The defendant does not argue that
the words that appeared on the screen in State’s Exhibit 1 were not accurate.
Rather, he asserts that the introduction of the complete conversation “might
well have been exculpatory,” because it could have indicated that the defendant
believed that he was sending the message to his wife, and not the victim. We
disagree that either the best evidence rule or New Hampshire Rule of Evidence
106 required the State to introduce the entire conversation. Cf. State v. Mrza,
926 N.W.2d 79, 88 (Neb. 2019) (stating that “the rule of authentication did not
require State to offer [into evidence] all of the Snapchat messages” between the
defendant and the victim”).
II. Motion for a New Trial
Following his conviction, the defendant filed a motion for a new trial,
asserting that his trial counsel provided ineffective assistance of counsel. On
appeal, the defendant challenges the trial court’s conclusion that his attorneys’
decision not to call the mother of the victim to testify at trial did not constitute
ineffective assistance of counsel.
Part I, Article 15 of the New Hampshire Constitution and the Sixth and
Fourteenth Amendments to the United States Constitution guarantee a
criminal defendant reasonably effective assistance of counsel. N.H. CONST. pt.
1, art. 15; U.S. CONST. amends. VI, XIV. To prevail upon his claim of
ineffective assistance of counsel, the defendant must demonstrate, first, that
his trial attorneys’ representation was constitutionally deficient and, second,
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that their deficient performance actually prejudiced the outcome of the case.
State v. Fitzgerald, 173 N.H. 564, 573 (2020). The ineffective assistance of
counsel analysis involves mixed questions of law and fact. Id. at 574. We will
not disturb the trial court’s factual findings unless they are not supported by
the record or are erroneous as a matter of law, but we review the ultimate
determination of whether each prong is met de novo. Id. Because the
standard for determining whether a defendant has received ineffective
assistance of counsel is the same under both the State and Federal
Constitutions, we examine the constitutional competency of counsel’s
performance under the State Constitution, and rely upon federal case law only
for guidance. Id. at 573.
To satisfy the first prong, the performance prong, the defendant “must
show that counsel’s representation fell below an objective standard of
reasonableness.” Id. The reasonableness of counsel’s conduct is judged based
upon the facts and circumstances of the particular case, viewed at the time of
the conduct. Id. As has been previously 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.
Strickland v. Washington, 466 U.S. 668, 688 (1984); see also State v.
Whittaker¸158 N.H. 762, 769 (2009). Because the proper measure of attorney
performance remains simply reasonableness under prevailing professional
norms, to establish that a trial attorney’s performance fell below this objective
standard of reasonableness, the defendant must show that no competent
lawyer would have engaged in the conduct of which he accuses his trial
counsel. State v. Cable, 168 N.H. 673, 680-81 (2016).
We agree with the defendant that the presumption of reasonableness is
not absolute, and that “it does not follow necessarily that, in every instance,
trial counsel’s strategy concerning [whether to call a particular witness] is
sound.” Bryant v. Comm’r of Correction, 964 A.2d 1186, 1199 (Conn. 2009).
But the question of whether trial counsel’s decision not to solicit witness
testimony can be considered sound trial strategy or whether it constitutes a
serious deviation from the actions of an attorney of ordinary training and skill
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in criminal law is to be determined by the facts of the particular case. Id. at
1194. In this case, while there might have been some benefit to having the
mother testify, we cannot say that trial counsel’s decision not to have the
mother testify was unreasonable, given the potential disadvantages of having
her testify. The defendant was represented at trial by two attorneys, one of
whom testified at the hearing on the motion for a new trial that the defense
ultimately decided not to call the mother for three reasons.
First, counsel expected the jury to find the defendant not guilty, even
without the mother’s testimony, because they believed they had been
successful in discrediting the victim’s testimony. They believed that their
cross-examination about the assault on the couch in her mother’s presence
made the claim appear “absurd on its face,” which meant it was unnecessary to
call the mother to contradict it.
Second, counsel testified that counsel were concerned because the
mother “seemed very emotional and frail,” and they “worried about what would
happen if she were put on the witness stand.” When they discussed the matter
with the defendant, the defendant “deferred” to his attorneys, but his
perspective was that the mother was “hanging on by a thread.” Trial counsel
testified that they were “on the fence” about calling the mother throughout the
trial.
Finally, trial counsel was concerned about a comment the defendant had
allegedly made to the victim about shoveling the driveway. At the hearing on
the motion for a new trial, the mother of the victim testified that the victim told
her that the defendant “told [the victim] that if she would give him a blow job,
she wouldn’t have to shovel the driveway.” When the mother confronted the
defendant about that, he stated that he had been misunderstood, and that
what he had said to the victim was that the mother did not have to shovel the
driveway because the mother gives him sexual favors. Counsel testified at the
hearing that this comment, “regardless of the veneer . . . put on it . . . would
have been horrible for the jury to hear . . . given what [the defendant] was
accused of.” According to trial counsel, “even if we were fortunate enough to
get in a completely sanitized version of [it],” that is, “I didn’t ask for oral sex; I
merely told her that she has to do the manual labor rather than her mother
because her mother provides me with oral sex . . . that would have been
disastrous.” Trial counsel’s concern was that this “would have introduced this
really inappropriate conversation, banter, familiarity with such things between
the defendant and the victim,” and counsel was surprised that the State did
not elicit testimony from the victim about the comment. He stated that he was
on the fence about calling the mother at trial but when the State failed to bring
up the shoveling incident, “the scales were tipped in favor of not calling her.”
Trial counsel testified that he believed that the State had made an error by not
bringing up the comment, and he did not want to open the door to it.
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The defendant argues that had she been called to testify, the mother
would have “directly rebutted” the victim’s claims regarding the family
dynamics, and would have testified that she never saw any sexual messages
between the victim and the defendant, that the victim never disclosed to her
that the defendant had sexually assaulted her, and that she did not recall any
incident where she, the defendant, and the victim were on the couch and the
victim “fought or squirmed” with the defendant. She would also have testified
that it was she, not the defendant, who was ultimately in charge of the victim’s
social life, undermining the victim’s testimony that the defendant bribed the
victim to engage in sexual activity by threatening to withhold permission for
her to attend social events. In addition, she would have testified to an incident
that negatively reflected on the victim’s credibility. She would have testified
that the victim used makeup to make it appear she had a black eye, and then
falsely alleged to a neighbor’s daughter that the defendant had punched her.
While the defendant correctly characterizes the nature of what the
mother would have testified to based upon the mother’s testimony at the
hearing on the motion for a new trial, we, like the trial court, are unpersuaded
that such testimony would have “directly rebutted” the victim’s claims. While
the mother might not have seen any sexual messages the defendant sent to the
victim, this does not mean that the messages were never sent, as the mother
acknowledged that the defendant had passwords to the victim’s accounts. In
addition, the mother’s testimony that she was “ultimately” in charge of her
daughter’s social life does not directly refute the victim’s testimony that the
defendant leveraged the victim’s social life to extract sexual favors.
While the mother’s testimony that she did not recall any “couch incident”
would arguably have undermined the victim’s credibility, trial counsel
vigorously cross-examined the victim about this incident, specifically inquiring
of the victim how it could be that her mother was sitting right next to her and
did not know it was happening.
Trial counsel carefully balanced the “pros” of the mother testifying
against the “cons.” Counsel consulted with both the defendant and the mother
about the mother testifying, and each opined that she should not testify unless
the testimony was necessary. Counsel observed the mother to be emotionally
frail, and the defendant stated that the mother was “hanging on by a thread.”
In addition, counsel was understandably concerned about opening the door to
the inappropriate comment the defendant made to the victim about shoveling
the driveway. Testimony about the incident would have introduced a
conversation of a sexual nature between the defendant and the victim that the
jury might have found inappropriate and might have negatively affected the
defendant’s case. We agree with the trial court that it is inappropriate for the
court “with hindsight” to “substitute its judgment for that of trial counsel in
determining whether trial counsel should have put [the mother] on the stand
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and risk introducing this evidence.” We are unpersuaded that the defendant
has rebutted the strong presumption that trial counsel’s decision in this case
was sound trial strategy.
Because we agree with the trial court that the trial attorneys’
performance was not constitutionally defective, we do not consider the second
prong. State v. Collins, 166 N.H. 210, 212 (2014) (stating that failure to
establish either prong requires a finding that counsel’s performance was not
constitutionally defective). Because the standard for determining whether a
defendant has received ineffective assistance of counsel is the same under both
the State and Federal Constitutions, we reach the same result under the
Federal Constitution as we do under the State Constitution. State v. Hall, 160
N.H. 581, 588 (2010).
III. Review of Confidential Records
Prior to trial, the trial court conducted in camera review of a number of
records. It is unclear from the trial court’s orders whether there were records
that were reviewed but not disclosed. When the trial court conducted its in
camera review, it did not have the benefit of our opinion in State v. Girard, 173
N.H. 619 (2020). We agree with the parties that this case should be remanded
for the purpose of having the trial court review any undisclosed records again,
in accordance with the standard set forth in Girard. If the trial court concludes
that the records do contain evidence that should have been disclosed to the
defense, the court may release that evidence to the parties with any necessary
protective order, taking into account the victim’s rights under Part I, Article 2-b
of the New Hampshire Constitution and RSA 21-M:8-K (Supp. 2022), if any. If
the court releases any evidence to the parties, the court should then provide
the parties with an opportunity to make arguments as to whether a new trial is
warranted. Cf. Graham, 142 N.H. at 364 (if records contain evidence that
should have been disclosed, the trial court “should order a new trial unless it
finds that the error of not admitting the evidence in the first trial was harmless
beyond a reasonable doubt”).
Affirmed in part and remanded.
BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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