State v. Perron

• Decision Date: 05 November 1982
• Docket Number: No. 81-254,81-254
• Citation: 454 A.2d 422,122 N.H. 941
• Parties: The STATE of New Hampshire v. Donald PERRON.
• Court: New Hampshire Supreme Court

Page 422

454 A.2d 422

122 N.H. 941

The STATE of New Hampshire v. Donald PERRON.

No. 81-254.

Supreme Court of New Hampshire.

Nov. 5, 1982.

Gregory H. Smith, Atty. Gen. (Martha V. Gordon, Asst. Atty. Gen., on brief and Gregory W. Swope, Atty., Strafford, orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief for defendant.

DOUGLAS, Justice.

The defendant was tried and convicted by a jury in Superior Court (Johnson, J.) of second-degree assault, RSA 631:2 I (Supp.1981), and robbery, RSA 636:1 I(a). He seeks reversal of his conviction on three grounds: (1) ineffective assistance of counsel for failure to seek exclusion of certain evidence and failure to preserve issues for appellate review; (2) improper admission of testimony to impeach the credibility of a defense witness; and (3) denial of speedy trial. For the reasons that follow, we affirm.

On the night of November 6, 1979, Robert O'Neil, a Dartmouth College student, was walking along North Main Street in Hanover when a car pulled up next to him. O'Neil continued walking, but the car followed him as he walked along and the passenger in the front seat yelled some names at him. O'Neil was asked whether he had any money, and he responded that he did not. While O'Neil was walking, he was looking at the man seated in the passenger seat in the front of the car. O'Neil later described the passenger as having fairly long dark hair, a mustache, and "scruffy growth" on his face. After the car followed O'Neil a little farther, the two occupants of the car jumped out and assaulted him, taking his wallet.

O'Neil made three identifications of the defendant, Donald Perron, as the passenger in the car who assaulted him. First, on November 17, 1979, the police showed O'Neil seventeen photographs, two of which were of the defendant. O'Neil identified both of them. Three days later, the defendant was arrested. The second identification occurred on December 4, 1979, in which O'Neil was shown sixteen photographs. O'Neil initially selected two photographs but ultimately chose that of the defendant as one of his assailants. The third identification took place on January 22, 1980, when O'Neil went to Hanover District Court accompanied by a police detective. Upon entering the courtroom, O'Neil saw the defendant seated among fifteen or twenty people in the spectator section and told the detective that the defendant was "the one that did it." The defendant waived his probable cause hearing.

The defendant was indicted in April 1980. That same month, the State filed a motion for a speedy trial. The case was scheduled for trial during the September 1980 term, but was continued on the State's motion because the victim, O'Neil, was studying in Europe during the fall 1980 semester.

The defendant moved to Pennsylvania in February 1981 and remained there until June 1981. The defendant filed his first speedy trial motion on June 1, 1981, and the case went to trial that same month.

Prior to trial, the defendant's then counsel filed a motion in limine to exclude the defendant's prior conviction for aggravated assault on an eighteen-month-old child. The defendant was offered an opportunity for a hearing so that the alleged prejudicial effect of the conviction could be stated on the record but out of the jury's presence. See State v. Staples, 120 N.H. 278, 285, 415 A.2d 320, 324 (1980) (Staples I ). Defense counsel rejected the opportunity, however, and withdrew the motion based on his client's decision not to testify on his own behalf.

The defendant was convicted of both second-degree assault and robbery and was sentenced to concurrent terms of one to three years and six to twelve years on the respective offenses. On appeal, the defendant initially moved to remand the case for a hearing on whether he had received effective assistance of counsel at trial. We denied the motion on January 6, 1982.

I. Effective Assistance of Counsel.

Both the State and Federal Constitutions guarantee a criminal defendant the right to effective assistance of counsel. State v. Staples, 121 N.H. 959, 961, 437 A.2d 266, 267 (1981) (Staples II ); see N.H. Const. pt. I, art. 15; U.S. Const. amend. VI, XIV. The constitutional standard by which we measure the performance of a lawyer in representing his client in a criminal case is "reasonable competence." Staples II, 121 N.H. at 961, 437 A.2d at 267; see McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1969); see also Engle v. Isaac, 456 U.S. 107, ---, 102 S.Ct. 1558, 1574, 71 L.Ed.2d 783 (1982). The defendant claims that he was denied the effective assistance of counsel in three instances, which we will deal with separately.

The defendant's first ground for challenging the competence of his representation at trial is his lawyer's failure to obtain a ruling on the motion to exclude the defendant's prior aggravated-assault conviction. Initially, the trial judge deferred ruling on the motion until "defendant's counsel indicates that defendant proposes to take the stand."

The defendant now argues that this was an attempt by the trial judge to "extract a promise" from the defendant that he will testify in exchange for a ruling on the admissibility of a prior conviction. To the contrary, such a decision was merely an effort by the trial judge to save valuable judicial time by avoiding unnecessary hearings. The defendant's prior conviction would have been admissible, if at all, only for the purpose of impeaching his credibility during cross-examination, and the trial judge apparently saw no need to conduct a Staples I hearing on whether the prior conviction should be excluded if the defendant did not propose to take the witness stand. Undoubtedly, as the defendant suggests, he would have had an incentive to testify had the court first ruled on the motion in limine and found the prior conviction to be inadmissible. Nevertheless, this question is not raised on a direct appeal but rather in a collateral proceeding challenging the adequacy of counsel. We hold only that trial counsel's decision not to pursue a Staples I hearing as to the admissibility of the prior conviction did not fall below the level of "reasonable competence."

The defendant further contends that defense counsel misrepresented to him the expected scope of questioning on cross-examination if he decided to testify. The record does not reflect whether the defendant, in deciding not to take the witness stand, thought his prior conviction would be admissible; however, the defendant on appeal seeks to rely on his handwritten waiver of the right to testify to support this argument. The waiver stated, in relevant part, that if he did testify "the court will allow full cross-examination of me including the details of my prior conviction."

The defendant argues that defense counsel erred by suggesting that the prior conviction had already been ruled admissible and that the facts of the prior conviction would be allowed into evidence. It is not at all clear on the record before us that the defendant's lawyer did so indicate to the defendant. Even though the defendant attested that he "understand[s]" he could be cross-examined about the details of his prior conviction, we cannot say that he made his decision not to testify for this reason and not for some other reason based on advice of counsel, such as his credibility. "[S]uccess in criminal trials and perfection in trial tactics are not guaranteed by the Constitution." State v. Fleury, 111 N.H. 294, 299, 282 A.2d 873, 877 (1971). We will not second-guess the tactical decisions of defense counsel.

The defendant's second basis for claiming denial of effective assistance of counsel was his trial lawyer's failure to move to exclude several allegedly suggestive photographic identifications and one corporeal identification without the presence of counsel. As previously mentioned, the first photographic identification, on November 17, 1979, resulted in the victim, O'Neil, selecting two of the defendant's photographs from among seventeen. The defendant was the only person portrayed twice, but a police detective testified that the inclusion of a second photograph was inadvertent.

In State v. Leclair, 118 N.H. 214, 385 A.2d 831 (1978), we announced the following standard governing the admissibility of a pre-indictment photographic identification:

"When an out-of-court identification is made before formal charges, and thus before the right to counsel attaches, its reliability and therefore its admissibility will be determined on the basis of the totality of the circumstances, and its exclusion will not be on the sole basis that the procedures were unnecessarily suggestive."

Id. at 217, 385 A.2d at 833. In a line of cases since Leclair, we have applied the factors enunciated in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972), for determining whether a pre-indictment identification procedure used by the police was so suggestive as to taint any identification and render it inadmissible. These factors are: (1) the witness' opportunity to view the defendant at the time of the crime; (2) the degree of the witness' attention; (3) the accuracy of the description given by the witness; (4) the witness' level of certainty; and (5) the time between the crime and the confrontation. See e.g., State v. Gonzales, 120 N.H. 805, 807-08, 423 A.2d 608, 610 (1980); State v. Heald, 120 N.H. 319, 322, 414 A.2d 1288, 1290-91 (1980); State v. Gullick, 120 N.H. 99, 101-02, 411 A.2d 1113, 1114-15, cert. denied, 449 U.S. 879, 101 S.Ct. 226, 66 L.Ed.2d 101 (1980). In Gonzales, applying the Neil v. Biggers criteria, we affirmed the trial court's finding that a photographic identification was reliable, notwithstanding the fact that only the defendant appeared twice in the pictorial lineup. 120 N.H. at 807-08, 423 A.2d at 609-10. Accordingly, we find no constitutional infirmity here.

The second...