State v. Brown

• Citation: 160 N.H. 408,999 A.2d 295
• Decision Date: 30 June 2010
• Docket Number: Nos. 2008–197,2009–181.,s. 2008–197
• Court: Supreme Court of New Hampshire
• Parties: The STATE of New Hampshire v. Michael BROWN.

160 N.H. 408

999 A.2d 295

The STATE of New Hampshire

v.Michael BROWN.

Nos. 2008–197

2009–181.

Supreme Court of New Hampshire.

Argued: Feb. 17, 2010.

Opinion Issued: June 30, 2010.

Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Getman, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman on the brief and orally), for the defendant.

HICKS, J.

The defendant, Michael Brown, was convicted of attempted first degree murder, see RSA 629:1 (2007); RSA 630:1–a (2007), and witness tampering,see RSA 641:5 (2007). He contends that the Superior Court (Nadeau, J.) erred by denying his motion for a new trial based upon a claim of ineffective assistance of counsel. We affirm.

The jury could have found the following facts. The defendant, a middle-aged man, began a relationship with the victim in either 2004 or 2005, when she was fifteen years old. On her sixteenth birthday, he gave her a ring and they discussed the possibility of marrying after the victim turned eighteen. In August 2006, the victim sought to end the relationship. Frustrated that the victim had not returned his telephone calls, the defendant confronted her at her workplace on August 11, 2006. That evening, the defendant called the victim to tell her that he was coming to her house to reclaim the ring. She met him in the driveway, climbed into his truck, and they drove away. Once in the truck, the defendant demanded that she return the ring. There ensued a heated discussion about their relationship. The victim testified that the defendant called her a "cheater" and told her how much he loved her. The victim stated she then told the defendant she "hated him" and to leave her alone.

At some point during this argument, the defendant parked in a residential section of Manchester. The victim told the defendant again that she hated him and asked him to leave her alone. In response, the victim testified that the defendant put his hands around her neck and began to choke her. She struggled and eventually kicked the truck's horn with her foot. The defendant then released her and drove away. In the struggle, the victim's necklace broke. The police recovered the broken necklace from the side of the road where the victim stated the defendant parked.

Also, while the vehicle was stopped, the defendant grabbed the victim's mother's cell phone, which she had in her possession, and snapped it into two pieces. The police later recovered the broken phone from the defendant. The victim's mother's boyfriend testified at trial that he had called the cell phone that evening and heard a female voice state, "[Y]ou're going to kill me, you're going to kill me." A male voice then responded, "[Y]ou cheated on me ... and I'm going to kill you," to which a female voice replied, "Mike, stop, Mike, stop."

The victim testified that when the defendant drove away, she was pinned between the seats in the vehicle. As they approached the highway, the defendant released the victim and said, "I want you to see this coming at you," apparently insinuating her impending death. The defendant drove erratically, swerving through traffic, and swiping a reflector pole. Police later found damage to the truck consistent with hitting a reflector pole.

The defendant eventually stopped on a long, isolated dirt driveway in Auburn. The victim told the defendant that "he was going to go to jail," to which the defendant replied, "[W]ell, then I guess there's no reason not to kill you"—a statement he subsequently denied. The defendant then began to strangle her again. She testified that she could not breathe or speak and that she almost slipped into unconsciousness, but that a "rush of adrenaline" gave her the strength to fight by hitting, scratching, and slapping the defendant. At that point, "he just stopped," according to the victim. And "[a]s soon as he let her go," the victim vomited. The police found vomit in the back of the truck.

Once free, the victim grabbed an orange cord from the backseat, wrapped it around the defendant's neck, and pulled. She stopped strangling the defendant when he started "convulsing almost." The defendant then apologized and asked the victim not to call the police. The victim agreed and stated she would go along with whatever story he concocted, whereupon the defendant drove her home. However, when she arrived home, she promptly called the police. The police later arrested the defendant.

During a post-arrest interview, the defendant admitted that he had choked the victim but stopped when he realized what he was doing. Specifically, the defendant stated, "[A]t one point I—I choked her. Did I choke her to kill her? I was angry.... [W]hen I choked her, I realized what I was doing and I felt like I couldn't." The following exchange also occurred:

[Detective]: So you tried to kill her, Mike.

[Defendant]: Tried to choke her, yeah. Did I try to kill her? No. But I don't—I don't—I don't believe that I could—I—I couldn't kill her. I couldn't—when I was in the military I couldn't kill. That's why I got out.

[Detective]: That's where the trying part comes in, Mike. You tried, you couldn't, you stopped. That's—

[Defendant]: I tried, I couldn't, I stopped.

At other points during the interview, the defendant was less sure of his actions. When the interviewing detective declared, "You just tried to kill her," the defendant answered, "Trust me, I know, and I feel like s––t, all right? I don't need you to keep pounding it into me." The jury watched this interview at trial.

After the jury returned a verdict of guilty, the defendant moved for a new trial. In his motion, he argued that his trial counsel was ineffective because he: (1) failed to request a jury instruction on voluntary renunciation; (2) failed to request a jury instruction on lesser included offenses; and (3) permitted the jury to learn of a prior arrest and prosecution for rape. The trial court denied the motion for a new trial and the defendant appealed.

On appeal, the defendant asserts that his counsel was constitutionally ineffective under the State and Federal Constitutions. Part I, Article 15 of the State Constitution and the Sixth and Fourteenth Amendments to the United States Constitution "guarantee a criminal defendant reasonably competent assistance of counsel." State v. Sharkey, 155 N.H. 638, 640, 927 A.2d 519 (2007) ; see Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We first address the defendant's claims of ineffective assistance of counsel under the State Constitution, citing federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

To prevail upon a claim of ineffective assistance of counsel, 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. McGurk, 157 N.H. 765, 769, 958 A.2d 1005 (2008) (quotation omitted). A failure to establish either prong requires a finding that counsel's performance was not constitutionally defective. See State v. Kepple, 155 N.H. 267, 270, 922 A.2d 661 (2007).

To satisfy the first prong of the test, the performance prong, the defendant "must show that counsel's representation fell below an objective standard of reasonableness." State v. Whittaker, 158 N.H. 762, 768, 973 A.2d 299 (2009) (quotation omitted); see Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("[T]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (quotation omitted)); Strickland, 466 U.S. at 688, 104 S.Ct. 2052. We judge the reasonableness of counsel's conduct based upon the facts and circumstances of that particular case, viewed at the time of that conduct. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. As we have previously stated:

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.

Whittaker, 158 N.H. at 769, 973 A.2d 299 (quotations and citations omitted); see Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In other words, the defendant must "show that no competent lawyer" would have failed to request a jury instruction on voluntary renunciation or lesser included offenses or permitted the jury to hear of the defendant's prior prosecution for forcible rape. Whittaker, 158 N.H. at 769, 973 A.2d 299 (quotation omitted).

To satisfy the second prong, the prejudice prong, the defendant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Whittaker, 158 N.H. at 768, 973 A.2d 299 (quotation omitted); see Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Sharkey, 155 N.H. at 641, 927 A.2d 519. In making this determination, we consider "the totality of the evidence presented at trial." Kepple, 155 N.H. at 270, 922 A.2d 661.

Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. Whittaker, 158 N.H. at 768, 973 A.2d 299. 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...