State v. Faragi

• Citation: 498 A.2d 723,127 N.H. 1
• Decision Date: 05 August 1985
• Docket Number: No. 83-026,83-026
• Parties: The STATE of New Hampshire v. Thomas FARAGI.
• Court: Supreme Court of New Hampshire

Page 723

498 A.2d 723

127 N.H. 1

The STATE of New Hampshire v. Thomas FARAGI.

No. 83-026.

Supreme Court of New Hampshire.

Aug. 5, 1985.

Stephen E. Merrill, Atty. Gen. (Andrew L. Isaac, Asst. Atty. Gen., on brief and orally), for State.

Joanne S. Green, Asst. Appellate Defender, Concord by brief and orally, for defendant.

Thomas Faragi, pro se.

SOUTER, Justice.

The defendant appeals from his conviction for first degree murder. In the appeal as originally docketed the defendant claimed through counsel that the Superior Court (Bean, J.) erroneously failed to hold a hearing on the defendant's competence to waive the defense of insanity. Thereafter, the defendant filed a brief pro se, claiming, inter alia, ineffective assistance of trial counsel. As to this latter issue, we remanded for evidentiary hearing and ruling. On remand, the same trial judge rejected the claim of ineffective assistance, and we have consolidated the defendant's appeal from that ruling with the appeal as first docketed. We affirm.

We will deal first with the claim of ineffective assistance. For reasons that will appear below, the only facts about the crime itself that are relevant on this issue were stated in an affidavit which the police filed when they applied for a warrant to search the defendant's house for the murder weapon. From the following summary of the affidavit's factual recitations we will omit the statements attributing items of information to the specific individuals who provided them, though we do note that the affidavit was unusually well drawn and meticulously indicated the affiant's sources.

At 9:48 a.m. on March 11, 1982, Ronald Vachon saw the injured body of Valerie Ann Blair on the ground at Odiorne State Park in Rye and observed what he thought was a yellow 1968 Buick Skylark with a black top speeding north from the scene on Route 1-A. The victim was later pronounced dead from five gunshot wounds of her face and head. Near the place where the victim's body had been, the police found spent and live .22 caliber rounds marked "CCI," the live rounds containing hollow-point long-rifle bullets. The police promptly searched for a gun on both sides of Route 1-A for three quarters of a mile north of the park, and later searched the bed of a tidal creek that crossed that road, but without success.

On the day of the crime the defendant owned a yellow 1968 Pontiac Lemans. Four days later, on March 15, he delivered the car to a friend named Truman. On March 19, Truman allowed the police to search the car, where they found two live rounds of CCI long-rifle hollow-point ammunition. Truman and his wife had put no ammunition in the car.

Early in March 1982, the defendant had told a friend named Pickering that he possessed a .22 Ruger gun, despite an earlier felony conviction. On March 9, 1982, the defendant showed a Ruger .22 semi-automatic pistol to another friend named Cvetanovich and described the gun as "hot." Cvetanovich noticed that it was chambered for long-rifle ammunition. The defendant had mentioned a trip he expected to make to Florida, but had agreed with Cvetanovich that it would be unwise to take the gun with him. On March 10 the defendant gave his correct name but a false address to a store clerk from whom he bought a box of CCI .22 long-rifle hollow-point ammunition. The clerk later identified the defendant as the purchaser, based on a police photograph.

On March 18, 1982, the defendant flew to Florida, where he was arrested the next day on a charge unrelated to the present one. At his arrest, he did not have the pistol with him.

On March 20, 1982, a neighbor of the defendant's in Rye said that the defendant had "recently" shown the gun to him at the neighbor's house. On March 20, Pickering and Cvetanovich stated that they had not seen the gun since March 11.

The police prepared an affidavit with the foregoing information, along with further evidence indicating that the defendant had lived at his parents' house in Rye at all relevant times. As part of the affidavit, the police submitted a composite drawing that Vachon had prepared of the face of the driver of the yellow car. The drawing resembled photographs of the defendant's face, although the affidavit disclosed that Vachon had not identified the defendant from a photographic array.

Based on the affidavit, the justice of the Rye Municipal Court issued a warrant to search the defendant's parents' house for the pistol and ammunition. While the police were executing the warrant the defendant called his father from Florida. When his father mentioned the search, the defendant told his father where he had hidden the gun and instructed his father to tell the police. The father did, and the police found the gun where the defendant had said it would be. A ballistics expert testified at trial that the defendant's gun had expelled the spent rounds found at the scene of the crime.

The defendant's trial counsel did not move to suppress the gun as evidence, because, as he later testified, his analysis of the law and the evidence convinced him that a motion to suppress would surely fail. For this decision, the defendant now seeks a new trial on the ground of ineffective assistance of counsel. He rests his claim on both the sixth amendment to the Constitution of the United States and part I, article 15 of the Constitution of New Hampshire. See State v. Staples, 121 N.H. 959, 961-62, 437 A.2d 266, 267 (1981). For reasons stated in State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), we consider the defendant's claim first and independently under the State Constitution, citing decisions of the Supreme Court of the United States and of courts of other jurisdictions only for their help in analyzing and deciding the State issues. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3475-76, 77 L.Ed.2d 1201 (1983).

Both Constitutions measure the defendant's right to assistance of counsel under an objective standard of reasonable competence. Breest v. Perrin, 125 N.H. 703, 705, 484 A.2d 1192, 1194 (1984); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). Cf. Abbott v. Potter, 125 N.H. 257, 480 A.2d 118 (1984) (special rule when counsel's conflict of interest is alleged in multiple representation case). Reviewing courts start with the strong presumption that counsel's conduct falls within the limits of reasonable practice, Breest v. Perrin supra, bearing in mind the limitless variety of strategic and tactical decisions that counsel must make. See Abbott v. Potter supra.

Even when professional competence falls below that objective standard, however, a defendant must also demonstrate that he has actually been prejudiced thereby, before he is entitled to a new trial. Breest v. Perrin, supra, 125 N.H. at 705-06, 484 A.2d at 1194-95; cf. Abbott v. Potter supra. If the defendant is unable to demonstrate such prejudice, we need not even decide whether counsel's performance fell below the standard of reasonable competence. Strickland v. Washington, supra, 104 S.Ct. at 2069-70. On this issue of prejudice, counsel for the defendant has read our earlier case of State v. Staples supra as shifting the burden to the State to prove beyond a reasonable doubt that any deficiency of representation was harmless, once such a deficiency had been established. More recently, however, we have followed the standard set out in Strickland v. Washington supra, that the burden rests on the defendant to demonstrate " 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Breest v. Perrin, supra, 125 N.H. at 706, 484 A.2d at 1194-95 (quoting Strickland v. Washington, supra 104 S.Ct. at 2068).

We address the issue of prejudice first. On the facts of this case the defendant could not raise a reasonable probability of a different outcome without demonstrating that the gun, and the ballistics analysis based on the examination of the gun, could have been excluded from the evidence. The issue may be focused, then, by considering whether a motion to suppress the gun as the fruit of an unlawful search would have been successful.

An examination of the State's application for the search warrant in the light of the applicable constitutional standard convinces us that a motion to suppress would have had no merit. The State must support an application for a search warrant "with evidence of probable cause in order to demonstrate to the issuing magistrate that there is a substantial likelihood of finding incriminating evidence at the place to be searched." State v. Maya, 126 N.H. 590, ----, 493 A.2d 1139, 1144 (1985); State v. Marcotte, 123 N.H. 245, 248, 459 A.2d 278, 280 (1983).

The affidavit in the present case satisfied this standard. At the time the magistrate issued the warrant in this case, a person of ordinary caution would have been justified in drawing the following inferences from the affidavit summarized above: the defendant owned the murder weapon, which he had carelessly loaded in his car with ammunition purchased the day before the murder; he shot the victim and fled from the scene in his car; after the murder he became cautious about exhibiting the gun, but he did not dispose of it or take it to Florida with him; the gun was probably in the house where the defendant lived at the time of the murder.

The defendant does not dispute the soundness of any of these conclusions except the last, that nine days after the murder the gun was probably at the defendant's house. The defendant's only authority for challenging this inference is the following statement from the opinion in United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.1979):

"Common sense tells us that it is unlikely that a murderer would hide in...