State v. Moussa

Decision Date31 August 2012
Docket NumberNo. 2009–451.,2009–451.
Citation53 A.3d 630,164 N.H. 108
Parties The STATE of New Hampshire v. Saad MOUSSA.
CourtNew Hampshire Supreme Court

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

HICKS, J.

The defendant, Saad Moussa, appeals his convictions, and sentences, on three counts of stalking, see RSA 633:3–a (Supp.2004) (amended 2005, 2006), entered following a jury trial in Superior Court (McHugh, J.). We affirm.

I. Background

The jury could have found, or the record supports, the following facts. In 2005, the Rockingham County grand jury returned three indictments against the defendant, each alleging a separate incident of stalking the victim, to whom he had been married for approximately eleven years. According to the victim's testimony, they were divorced at the time of trial. Each charged incident involved the defendant allegedly sending a letter to the victim "after having been served with or otherwise provided notice of a protective order issued by the Salem Family Court on 12/10/04, that prohibited him from having contact with [her]."

On the morning of trial, the defendant's appointed lawyer, Neil Reardon, informed the court that he "had spoken with [the defendant] earlier and [the defendant] asked [him] not to represent him," and that the defendant had "also sent [him] correspondence to that effect." After hearing from the defendant, the court stated: "Well, here's where we are. I mean, if you don't want him to represent you, I'm not going to force it on you, but I'm not going to continue the case either, you're going to represent yourself. If you want to do that, you can." The defendant confirmed that his "final decision" was that he did not want Reardon. He said that he would represent himself, but asked the court to give him "a little bit more time" to conduct the investigation he claimed Reardon had not done. The court denied that request and asked Reardon to stay in the courtroom in case "something should come up or [the defendant] changes his mind." On the second day of trial, after the defendant had absented himself from the proceedings, the court released Reardon from further involvement in the case.

At trial, the victim testified that each of the letters was written in Arabic in the defendant's handwriting. Nevertheless, each letter purported to be from someone other than the defendant—specifically, in the words of the first letter, "a benefactor and a family friend." The first and second letters were purportedly sent by Carlos Santana, with return addresses of New York City and the Bronx, respectively. The third had no return address but was postmarked from Manchester, New Hampshire. The State produced evidence that the defendant's fingerprints were found on each letter. The victim also testified that some of the letters repeated threats the defendant had made to her in the past: "Exactly—same words in them."

The third letter mentioned "a Lebanese who was in prison with [the defendant] and he got out from jail." The letter further stated, "As far as I know, that guy seeking trouble." Salem Police Sergeant Eric Lamb testified that he investigated that claim and discovered that an individual named Oner Nusret had been incarcerated with the defendant and had been released. The victim testified that she did not know anyone by that name.

On cross-examining the victim, the defendant inquired how he could have sent a letter to her if he was in custody at the time. He asked, "Does she have a stamp from the jail or not?" The State addressed this issue in its closing argument:

[The defendant] says to you, I couldn't possibly have sent these [letters]. He told you he was incarcerated at the time and they don't come from the jail. Folks, no one is saying he put these in the mailbox himself. You're not required to find that he did. It's not something that has to be proven beyond a reasonable doubt.
... Nothing is going to prevent him from putting this letter in another envelope, sending it to a friend who can drop it in the mail because he knows these letters can't come from him.

The defendant was convicted of all three counts and sentenced on each to three and a half to seven years in state prison, to run consecutively and to run consecutively to the defendant's previously-imposed sentences. He now appeals his convictions and sentences.

The defendant argues that the trial court erred in: (1) requiring him to choose between self-representation and representation by a lawyer he wanted to dismiss; (2) making certain evidentiary rulings; (3) denying his request for counsel at sentencing; and (4) imposing felony sentences. We address each argument in turn.

II. Analysis
A. Representation Choice

The defendant first contends that because "[t]he right to counsel encompasses the right to the effective assistance of counsel," the trial court could not put him "to the choice between representation at trial by a lawyer who has deficiently prepared for trial, and self-representation." While the defendant's claim implicates his constitutional right to counsel, he has not cited a specific provision of the State Constitution on this issue either below or on appeal. We therefore address his claim only under the Sixth Amendment to the Federal Constitution. See State v. Dellorfano, 128 N.H. 628, 632–33, 517 A.2d 1163 (1986).

"It is well-established that it is within the [trial] court's discretion to force a defendant to choose between proceeding to trial with an unwanted attorney and representing [him]self." United States v. Woodard, 291 F.3d 95, 106 (1st Cir.2002).

The right of an accused to counsel of his choice ... is not absolute.... Thus, a trial court has discretion to limit the exercise of the right, and, in doing so, should balance the defendant's interest in retaining counsel of his choice against the public's interest in the prompt, fair and ethical administration of justice.

United States v. Richardson, 894 F.2d 492, 496 (1st Cir.1990) (quotation omitted). We therefore review the trial court's ruling on this issue for an unsustainable exercise of discretion. Cf. Woodard, 291 F.3d at 106 (appellate court reviews denial of request for substitute counsel for abuse of discretion); State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard).

The defendant did not request substitute counsel, but instead sought a continuance to prepare to proceed pro se. Nevertheless, the issue is analogous to a request for substitute counsel because the crux of both claims is the unconstitutionality of a forced choice between self-representation and ineffective assistance of counsel. Cf. Woodard, 291 F.3d at 106. Accordingly, we find the following test, from the United States Court of Appeals for the First Circuit, instructive:

When a defendant voices objections to counsel, the trial court should inquire into the reasons for the dissatisfaction. In evaluating whether a [trial] court's denial of [a] motion for substitution of counsel constituted an [unsustainable exercise] of discretion, we consider the following factors: the timeliness of the motion, the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.

Id. at 107 (quotations and citation omitted).

With regard to the first factor, the State argues that the defendant " waited until the day of trial to tell the court he was dissatisfied with" Reardon. The defendant counters that he expressed concerns about Reardon's representation as early as January 5, 2009, two months before the start of trial on March 16, 2009. The record of the pretrial conference on January 5 indicates that the defendant had concerns about discovery and the infrequency of communication between Reardon and himself. He did not attempt to dismiss Reardon at that time, however, and the court addressed his concerns about discovery by continuing trial for two months and securing Reardon's agreement that if, after having reviewed the letters at issue, "there's something in those letters that ma[de] [him] think that it's in [the defendant's] best interest to contact witnesses and have them potentially testify, ... [he] would do that."

The defendant's first attempt to dismiss Reardon appears to have been in a letter to him dated February 21, 2009, claiming that although he had represented the defendant for nearly two months and had almost one month to conduct discovery, he did nothing. The defendant stated, "you didn't do anything or you file any motion in my behalf in this case, and NO visit from you." The letter, which was sent to the trial court, concluded, "I believe the communication between us has broken down, and I NO longer wish for you to represent me." In a letter to the court dated the same day, the defendant stated that he would like to address these issues "at the hearing on March 5," and requested to be transported to the court for the hearing. There appears to have been no hearing on March 5. Thus, the defendant contends that his "first opportunity ... to address the court in person came on March 16, the first day of trial."

The defendant asserts that the foregoing facts belie the inference urged by the State that he waited until the commencement of trial to complain about Reardon "in order to disrupt the proceedings." Regardless of the defendant's motivation, however, the remedy he sought would have "necessitate[d] a last-minute continuance," and we therefore "accord extraordinary deference to the [trial] court's decision" on the matter. Id. (quotation omitted).

The second factor assesses "the adequacy of the court's inquiry into the defendant's complaint." Id. (quotation omitted). Here, ...

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  • State v. Addison
    • United States
    • New Hampshire Supreme Court
    • November 6, 2013
    ...(2011). We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. State v. Moussa, 164 N.H. 108, 128, 53 A.3d 630 (2012). Absent an ambiguity we will not look beyond the language of the statute to discern legislative intent. Etienne, 163 N.H......
  • State v. Addison
    • United States
    • New Hampshire Supreme Court
    • November 6, 2013
    ...57, 71 (2011). We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. State v. Moussa, 164 N.H. 108, 128 (2012). Absent an ambiguity we will not look beyond the language of the statute to discern legislative intent. Etienne, 163 N.H. at 7......
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    • Wyoming Supreme Court
    • July 12, 2016
    ..., 257 Ill.App.3d at 515 [196 Ill.Dec. 179, 629 N.E.2d 724].Sparks , 269 Ill.Dec. 309, 780 N.E.2d at 784 ; see also State v. Moussa , 164 N.H. 108, 53 A.3d 630, 641 (2012) (emphasizing that a timely objection in the trial court as to the foundation of technical evidence is necessary to give ......
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    ...to sell or distribute, and, therefore, the defendant has failed to meet the first prong of the plain error test. See State v. Moussa, 164 N.H. 108, 129, 53 A.3d 630 (2012). Because the defendant's sufficiency challenge fails, and therefore retrial is not precluded under the double jeopardy ......
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