State v. Fennell

• Citation: 133 N.H. 402,578 A.2d 329
• Decision Date: 18 July 1990
• Docket Number: No. 89-275,89-275
• Parties: The STATE of New Hampshire v. Edward FENNELL, Jr.
• Court: Supreme Court of New Hampshire

Page 329

578 A.2d 329

133 N.H. 402

The STATE of New Hampshire v. Edward FENNELL, Jr.

No. 89-275.

Supreme Court of New Hampshire.

July 18, 1990.

John P. Arnold, Atty. Gen. (Jeffrey W. Spencer, Asst. Atty. Gen., on the brief and orally), for the State.

Nighswander, Martin & Mitchell P.A., Laconia (Byry D. Kennedy, on the brief and orally), for defendant.

PER CURIAM.

This is an appeal from the Superior Court's (McHugh, J.) decision denying defendant's motion to vacate his four aggravated felonious sexual assault convictions and obtain a new trial, based on allegations of ineffective assistance of counsel. We reverse as to one conviction and otherwise affirm.

The defendant was convicted in April 1985 on four counts of aggravated felonious sexual assault in violation of RSA 632-A:2, XI. He appealed his convictions to this court on two grounds challenging, first, the Trial Court's (Murphy, J.) denial of his motion for mistrial because of alleged discussions between jurors outside the presence of the remainder of the jury panel and, second, the sufficiency of the evidence regarding one of the counts of aggravated felonious sexual assault. We affirmed each of the four convictions, finding that the court committed no error in denying the mistrial and that the defendant had not properly preserved the insufficiency issue for review. State v. Fennell, 128 N.H. 383, 513 A.2d 363 (1986).

In July 1988, the defendant filed a pro se motion to vacate his convictions and obtain a new trial, based on allegations of ineffective assistance of trial counsel. The Superior Court (McHugh, J.) appointed counsel to represent the defendant and denied the motion after an evidentiary hearing. The defendant now appeals the superior court's findings, claiming that trial counsel's acts and omissions fell below the standard of reasonable competence and denied the defendant effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States Constitution, and by part I, article 15 of the New Hampshire Constitution.

The standard for attorney performance, whether raised under the United States or New Hampshire Constitution, is that of reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 690, 104 S.Ct. 2052, 2064, 2065, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); State v. Faragi, 127 N.H. 1, 4-5, 498 A.2d 723, 726 (1985). "Reviewing courts start with the strong presumption that counsel's conduct falls within the limits of reasonable practice ... bearing in mind the limitless variety of strategic and tactical decisions that counsel must make." Faragi, 127 N.H. at 4-5, 498 A.2d at 726 (citations omitted). There are two components to a successful claim of ineffective assistance. First, the defendant must show that counsel's performance was deficient, which requires proof that counsel made such egregious errors that counsel was not functioning as the "counsel" guaranteed by both constitutions. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Second, the defendant must prove that counsel's conduct actually prejudiced the defendant such that there is a reasonable probability that the result of the proceeding would have been different had counsel been competent. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Faragi, 127 N.H. at 5, 498 A.2d at 726.

There are certain circumstances, one of which the defendant alleges here, where the prejudice prong is legally presumed. See United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984); Avery v. Cunningham, Warden, 131 N.H. 138, 146, 551 A.2d 952, 956-57 (1988). Prejudice is presumed when there is an actual or constructive denial of counsel because the circumstances "are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658-59, 104 S.Ct. at 2046-47. One situation that presents a limited application of this presumption is where counsel is burdened by an actual conflict of interest. See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.

In Cuyler v. Sullivan, 446 U.S. 335, 345, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980), the United States Supreme Court addressed "whether the mere possibility of a conflict of interest warrant[ed] the conclusion that the defendant was deprived of his right to counsel" because of trial counsel's representation of multiple defendants. In answering this question, the court stated that prejudice is presumed when counsel is burdened by an actual conflict of interest. Id. at 348, 100 S.Ct. at 1718. Thus in instances where the defendant alleges the existence of a conflict of interest, the defendant must demonstrate "that an actual conflict of interest adversely affected his lawyer's performance" and that "his counsel actively represented conflicting interests." Id. at 348, 350, 100 S.Ct. at 1718, 1719 (emphasis added). In our own decision in State v. Cyrs, 129 N.H. 497, 501-02, 529 A.2d 947, 950-51 (1987), we extended the scope of Cuyler beyond cases of multiple representation and held that the Cuyler standard could be applied to other defendant-attorney conflict of interest cases. In doing so, however, we did not abandon the requirement that there be an actual conflict of interest.

The defendant invokes the law of Cuyler and Cyrs in claiming that he need not prove actual prejudice in order to obtain relief, if he otherwise satisfies us that his attorney's performance fell below the standard of reasonably effective assistance. The alleged conflict in this case arises from the fact that the defendant's trial counsel, Mr. Hemeon, was associated in the practice of law with Philip McLaughlin, who brought a civil suit for negligent operation of a motor vehicle against the defendant, in January of 1984, on behalf of one of his clients. Shortly after the writ was served on the defendant, it was turned over to either the defendant's employer or the insurance carrier, and the matter was ultimately settled.

In April 1984, the defendant called Mr. Hemeon from a police station, having just been arrested in connection with the crimes underlying this case, and requested that Mr. Hemeon represent him. Mr. Hemeon did represent the defendant from May of 1984 through April of 1985. During this time, the defendant never brought up the civil suit in any of his discussions with Mr. Hemeon. In fact, at no time during the course of Mr. Hemeon's representation did he learn either from the defendant or his law partner of the pendency of the civil action against the defendant. The trial court reviewed the file of the civil suit at the Belknap County Superior Court and noted that none of the documents contained Mr. Hemeon's signature. At the hearing on the defendant's motion, the trial court found that "to the extent that an apparent conflict of interest existed, that conflict was not created knowingly by Attorney Hemeon" (emphasis added). The defendant does not deny Mr. Hemeon's lack of knowledge about the civil suit, nor does he claim that trial counsel actively represented conflicting interests. He argues, rather, that Mr. Hemeon should have known about the apparent conflict. What Mr. Hemeon arguably should have known is not, however, the relevant issue. Without an actual conflict, no presumption of prejudice arises; consequently, we analyze the defendant's specific allegations of counsel's inadequacy in accordance with the standards enunciated in Strickland.

The defendant contends that trial counsel was ineffective for the following reasons: (1) he failed to move to dismiss one of the indictments when the evidence at trial purportedly failed to establish penetration; (2) he did not move to sever the four indictments; (3) he did not move for a mistrial when evidence of unindicted acts was elicited from one of the witnesses at trial; (4) he failed to move for a bill of particulars in connection with his alibi defense; and (5) he should have requested a Howard hearing to determine the admissibility of evidence of the prior sexual activity of the victims. As to each of these claims, we now proceed to the dual inquiry--whether counsel's performance was deficient and whether the defendant was prejudiced by the performance. State v. Allegra, 129 N.H. 720, 723, 533 A.2d 338, 341 (1987). If the defendant is unable to demonstrate the requisite prejudice, "we need not even decide whether counsel's performance fell below the standard of reasonable competence." Faragi, 127 N.H. at 4-5, 498 A.2d at 726.

Indictment # 84-0098 charged the defendant with committing aggravated felonious sexual assault on the seven-year-old victim while the two were in a parking lot at a McDonald's restaurant. Specifically, the indictment charged that the defendant placed his finger in the victim's genital opening. See RSA 632-A:1, V(e). Set forth below is the victim's trial testimony regarding this incident.

"Q. Did Mr. Fennell do something with his finger?

A. Yes.

Q. What did he do?

A. He put his finger in my--trying to find my hole.

Q. And did he find your hole?

A. Yes.

Q. And what did he do when he found it?

A. He goes around it.

Q. He goes around it? And what do you mean he goes around it? I don't know what that means.

A. He goes around it in circles.

Q. And with his finger he went around your hole in circles?

A. Em-hem.

Q. Now, honey, where on your body--just touch what you mean by your hole. I don't mean show us. Just put your hand right on your clothes; can you do that? Show me what you mean by your hole. Where is it on your body?

A. Down here.

Q. Is that your private parts?

A. Em-hem."

The defendant contends that this testimony "at best, established sexual contact," and not penetration, which is a material element of the offense charged. The defendant thus claims that trial counsel erred when he failed to bring a motion to dismiss the indictment for which this testimony was the only evidence. We agree....