2006-305 & 2008-312, STATE OF NH v. KEVIN C. WHITTAKER

upon ineffective assistance of counsel. We reverse and remand.

testimony of a state trooper; and (3) denying his motion for new trial based (2) granting the State’s motion in limine to exclude certain portions of the in limine to exclude the testimony of the State’s accident reconstruction expert; contends that the Superior Court (Fauver, J.) erred by: (1) denying his motion by a jury for negligent homicide. See RSA 630:3, II (2007). On appeal, he DALIANIS, J. The defendant, Kevin C. Whittaker, appeals his conviction

the brief and orally), for the defendant. Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant

to press. Errors may be reported by E-mail at the following address: Opinion Issued: June 3, 2009

2008-312 Nos. 2006-305 editorial errors in order that corrections may be made before the opinion goes Strafford Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as defendant drove off. p. 2 Sawin declined and told him to return to where he had hit the person; the

defendant seemed nervous and shaky. He asked Sawin to “go with” him.

had taken illegal substances a couple of weeks earlier. “[N]o. . . . [Y]ou only asked about alcohol, right?” He told the officer that he When the officer asked the defendant if he had been drinking, he said,

defendant what had happened, and he told her that he had hit someone. The 2 shattered” and that “part of it was swinging inside.” Sawin asked the vehicle, she could see that the passenger side windshield was “completely

The defendant told the officer that he was on his way to see his girlfriend.

the officer instead that “it was some guy” whom he did not know very well. fraternity house because he insisted. As Sawin walked towards the defendant’s that a friend had been driving his car, but he could not name the friend, telling car’s passenger side windshield looked smashed. The defendant told the officer

evidence of skid marks. further observed that there were shards of glass all over the passenger seat. he had not been in the crosswalk when he was hit. The police found no glassy and bloodshot, he smelled of alcohol and his hands were shaking. She his body, and the positions of his shoe, sock and hat, the police concluded that While speaking to the defendant, the officer noticed that his eyes were

initially refused, Sawin eventually agreed to meet the defendant behind his Whitney Sawin, also a UNH student, and told her to meet him. Although she car because one of its headlights was not working. The officer noticed that the and his hat were in the roadway, some distance away from his body. student at the University of New Hampshire (UNH), called his girlfriend, At approximately 1:07 a.m., a UNH police officer stopped the defendant’s with blood, and he was missing his shoes and socks. One of his shoes, a sock near the sidewalk curb. He was dressed in dark clothing. His face was covered

that Hegerich had a blood alcohol content of .14. Based upon the position of

At approximately 12:48 a.m., the defendant, then a nineteen-year-old

man, later identified as Richard Hegerich, was lying parallel to the fog line,

trauma to the head caused by a motor vehicle accident. It was also determined dead. A medical examiner later concluded that Hegerich died of multiple blunt The police determined that Hegerich, who was twenty years old, was

police received a call telling them that a person was lying on Main Street. The a.m. on Sunday, November 21, 2004, a rainy and foggy night, the Durham The jury could have found the following facts. At approximately 12:50

I. Background saw him bounce off the corner of my car at the right . . . headlight area.”

p. 3 it across the road and would be alive. He almost made it across the road. I

have killed him. Six inches, that’s it. Six inches and the guy would have made until he “felt a thump.” He then said, “[I]f my headlight wasn’t out, I might not Street up a hill, driving under the speed limit, and that he never saw the victim

drink. He said that the accident occurred when he was heading south on Main

the defendant’s impairment had caused the accident. The issue for the jury on the negligent homicide charge, therefore, was whether about whether he had been driving the car earlier in the evening. that struck Hegerich; and (3) the defendant was impaired when he was driving. 3

that night and had then gone to his fraternity, where he had continued to He then told the police that he had been drinking in Dover with his girlfriend family? How am I going to live the rest of my life knowing I killed someone?”

driving his car to meet her when the police stopped him. He was very evasive the injuries he sustained in the accident; (2) the defendant was driving the car

Joseph DiGregorio, then a deputy sheriff for Strafford County and a consultant To establish causation, the State relied, in part, upon the testimony of

alternative counts of negligent homicide, under the influence, the subsequent collision and the resulting death). had, the defendant said: “[W]hat have I done? What have I done to the victim’s II, the State must establish a causal connection between the person’s driving .16. v. Wong, 125 N.H. 610, 620 (1984) (to sustain a conviction under RSA 630:3,

his phone was ringing. He said that he then spoke to his girlfriend and was At trial, the defendant stipulated that: (1) Hegerich died as a result of he had been asleep at his fraternity house when someone woke him because wanted “to talk to his girlfriend and get his story straight.” He told police that dismissed one of the negligent homicide indictments before trial. of conduct after an accident, see RSA 264:25, :29 (2004). The trial court

The grand jury returned three indictments against the defendant: two asked the booking officer, “[D]id I kill the man I hit[?]” After he was told that he breathalyzer test results showed that the defendant’s blood alcohol content was

Durham police station to be interviewed. The defendant told the police that he

At 8:30 a.m. the defendant volunteered that he had hit a pedestrian. He comments about wishing that “[he] could be a rat” or a “snitch.” The a breathalyzer test. While waiting for the test, the defendant made several officer transported the defendant to the UNH police station, where he agreed to

After additional breathalyzer tests, the defendant was taken to the

based upon his performance, arrested him for driving while intoxicated. The The officer then administered field sobriety tests to the defendant, and, and (10) Hegerich came to rest approximately 160 feet from the area of impact. p. 4 braking and came to a stop approximately 167 feet from the area of impact; sock were located; (9) after hitting Hegerich, the defendant applied normal

impact was approximately twenty feet to the east of where Hegerich’s hat and

time; (8) although a precise point of impact could not be calculated, the area of see on the night of the accident; (7) alcohol slows down perception and reaction difficult to see him on the roadway; (6) the rain and fog also made it difficult to

demonstrate that he raised all of his appeal issues before the trial court. defendant has the burden of providing this court with a record sufficient to

this appeal followed.

(5) because Hegerich was wearing blue jeans and a dark fleece jacket, it was

these arguments by raising them in the trial court. As the appealing party, the

(2007).

that the trial court erred when it denied his motion with an accident reconstruction expert. The trial court denied the motion, and violated his constitutional right to present all proofs favorable. The record provided on appeal fails to demonstrate that the defendant ever v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); see Sup. Ct. R. 13, 16(3)(b). defendant hit him; (4) Hegerich was walking, not running, when he was hit; Bean hitting him; (3) Hegerich was in the roadway, not in the crosswalk, when the miles over the posted speed limit; (2) the defendant did not see Hegerich before The defendant, however, has failed to demonstrate that he preserved

DiGregorio’s testimony because it was inadmissible under RSA 516:29-a

CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. The defendant also argues the ground that his trial counsel was ineffective because he failed to consult See N.H. accident. He later moved for a new trial on the negligent homicide charge on exclude portions of Trooper William Graham’s testimony, the trial court rulings. Specifically, he argues that by granting the State’s motion convicted the defendant of both negligent homicide and conduct after an in limine to The defendant first challenges certain of the trial court’s in limine

driving thirty-five miles per hour when the accident occurred, which is ten A. Trial Court’s In Limine Rulings

II. Defendant’s Arguments

Following a five-day trial, which included an early evening view, the jury

and certain research and data, DiGregorio testified that: (1) the defendant was the medical examiner’s report, his own view of the collision site and the vehicle, prepared by a state trooper, reports prepared by the Durham and UNH police,

in traffic accident reconstruction. Based upon his review of the accident report for Collision Forensics in Somersworth, whom the court certified as an expert probability sufficient to undermine confidence in the outcome.”

of the proceeding would have been different. A reasonable probability is a under the State Constitution.

as a matter of law, factual findings unless they are not supported by the evidence or are erroneous

inquiry are mixed questions of law and fact.”

reasonable probability that, but for counsel’s unprofessional errors, the result necessarily, we reach the same result under the Federal Constitution as we do N.H. 768, 772 (2007). standard of reasonableness.” determination of whether each prong is met de novo, see State v. Jennings, 1 p. 5 55

deficient and, second, that counsel’s deficient performance actually prejudiced F.3d 317, 327 (1st Cir. 200 p. 5 5). Therefore, we will not disturb the trial court’s defendant must show, first, that counsel’s representation was constitutionally Id. at 698; Dugas v. Coplan, 428 “[B]oth the performance and prejudice components of the ineffectiveness reasonably competent assistance of counsel.

(1984). To meet the second prong, the defendant “must show that there is a received ineffective assistance of counsel is the same under both constitutions, Strickland v. Washington, 466 U.S. 668, 688 defendant “must show that counsel’s representation fell below an objective

640 (2007). To prevail upon a claim for ineffective assistance of counsel, a

The State and Federal Constitutions guarantee a criminal defendant

(2007). Because the standard for determining whether a defendant has

Amendments to the Federal Constitution. We first examine the constitutional I, Article 1 p. 5 5 of the State Constitution and the Sixth and Fourteenth The defendant’s claim of ineffective assistance of counsel rests upon Part

reconstruction expert. that his trial counsel was ineffective because he failed to consult an accident motion for a new trial based upon ineffective assistance of counsel. He asserts The defendant next contends that the trial court erred when it denied his

B. Motion for New Trial

in limine rulings. We, therefore, decline to address them. raised the same arguments that he raises here with respect to the trial court’s counsel’s judgments. p. 6 the circumstances, applying a heavy measure of deference to to investigate must be directly assessed for reasonableness in all

unnecessary. In any ineffectiveness case, a particular decision not

action might be considered sound trial strategy.” make a reasonable decision that makes particular investigations words, counsel has a duty to make reasonable investigations or to judgments support the limitations on investigation. In other

overcome the presumption that, under the circumstances, the challenged

reasonable precisely to the extent that reasonable professional [S]trategic choices made after less than complete investigation are and to evaluate the conduct from counsel’s perspective at the time.” at 327. choices in light of the investigation that led to those choices.” Dugas, 428 F.3d “We apply the Strickland standard to evaluate an attorney’s strategic

Sharkey, 155 N.H. at 641.

competent lawyer” would have failed to consult with an accident reconstruction range of reasonable professional assistance; that is, the defendant must indulge a strong presumption that counsel’s conduct falls within the wide “Because of the difficulties inherent in making the evaluation, a court must

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, requires that every effort be made to eliminate the distorting effects of particular case, viewed as of the time of that conduct. Strickland, 466 U.S. at 689. “A fair assessment of attorney performance “Judicial scrutiny of counsel’s performance must be highly deferential.”

(2006). Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir.), cert. denied, 549 U.S. 892

performance fell below this standard, the defendant “has to show that no U.S. 510, 521 (2003) (quotation omitted). To establish that his trial attorney’s reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 “[T]he proper measure of attorney performance remains simply

We must judge the reasonableness of counsel’s conduct on the facts of the reasonable considering all the circumstances.” Strickland, 466 U.S. at 688. which turns upon a determination of whether “counsel’s assistance was We first address the deficient performance prong of the Strickland test,

1. Deficient Performance opinion.

p. 7 affirmative duty to investigate the scientific bases for the State’s expert’s

holes in the State’s arson case” was insufficient and that counsel had an

129 S. Ct. 1614 (2009), the issue was whether defense counsel’s performance In Duncan v. Ornoski, 528 F.3d 1222, 1235 (9th Cir. 2008), cert. denied,

Richey, 498 F.3d at 363.

circumstances, the court ruled that defense counsel’s strategy merely to “poke counsel knew that there were gaps in the State’s proof of arson. Under those because the scientific evidence was fundamental to the prosecution and be demolished on cross-examination.” concluded that defense counsel’s performance was constitutionally infirm v. Bradshaw, 498 F.3d 344, 362-64 (6th Cir. 2007), for instance, the court an expert may be ineffective assistance under similar circumstances. In Richey observed, was a difficult defense to mount. Courts in other jurisdictions have ruled that the failure to consult with

tactical decision entitled to deference. was one of the only defenses available to the defendant. Id. at 331-32. that defense counsel’s failure to consult with an expert was an informed, arson” defense was constitutionally deficient. consultation in this case.” Id. at 331. The court also rejected the State’s claim together, the court ruled, “demonstrate the inescapable need for expert testimony of the State’s arson experts. Id. at 330. All of these circumstances also admitted that he was aware that there were inconsistencies in the investigation and had never before tried an arson case. Id. Defense counsel the government’s proposed evidence or the evidence may be so weak that it can defendant’s attorney admitted that he lacked any knowledge about arson the arson evidence “was the cornerstone of the state’s case.” Id. Further, the expert witnesses. Id. Additionally, the court noted, defense was that someone else committed the arson, which, the court

conclusion, in part, because creating reasonable doubt that the fire was arson

failure to consult with an arson expert so as to investigate thoroughly a “not In Dugas, the First Circuit Court of Appeals ruled that defense counsel’s

with an expert, for instance, when there is “no need to question the validity of

required, in every case, to consult experts even if the State will be putting on the use of expert witnesses by the state.” Id. A defendant’s attorney is not required to consult an expert as part of pretrial investigation in a case involving with an expert, we “recognize that reasonably diligent counsel are not always In assessing the reasonableness of trial counsel’s decision not to consult

reasonable. See Dugas, 428 F.3d at 328. reconstruction expert was supported by investigation that was itself decision of the defendant’s trial counsel not to consult with an accident Strickland, 466 U.S. 690-91. Thus, the issue in this case is whether the decision not to call an expert is informed and based on a strategic decision.”

p. 8 is not constitutionally required to seek a contradictory expert so long as the important legal issue rests on the reliability of scientific evidence, . . . counsel defendant’s expert to rebut. The court held that “[u]nless a critical and

to the accident who said that the defendant was driving. and there was “little, in terms of the state’s ballistic evidence,” for the car that had killed the victim was a disputed issue. There was an eyewitness physical evidence of penetration.

whether to consult with an accident reconstruction expert. In to consult with an accident reconstruction expert was constitutionally let others drive his car. Id. The court ruled that defense counsel’s decision not when he drank, which he admitted to doing before the accident, he would not reasonable investigation and, thus, was not entitled to deference. accident. Id. at 610. Additionally, the defendant had told his attorney that witnesses confirmed that the defendant had been driving the car before the played a central role in the defense. that he could impeach the witness successfully. Id. at 608-09. Other 605. Defense counsel found the eyewitness to be credible and did not believe

574 N.W.2d 601, 605 (S.D. 1998), whether the defendant was the driver of the he consulted with an expert, the expert would have explained that there was no

We have found only a handful of cases involving an attorney’s decision

Bower, 497 F.3d at 472.

evidence would have been futile, this was not an informed decision based upon

and that the victim’s story was incredible. expertise in the field; and (3) the potentially exculpatory evidence could have

with an expert was not constitutionally defective performance when the attempt to investigate whether that evidence could have been challenged. Had Cir. 2007), cert. denied, 128 S. Ct. 2051 (2008), ruled that failing to consult validity of the prosecution’s medical evidence without first having made any By contrast, the court in Bower v. Quarterman, 497 F.3d 459, 472 (5th counsel’s performance was constitutionally defective because he conceded the 11.

although defense counsel thought that challenging the prosecution’s medical

presented a strong affirmative case that the charged crime simply did not occur expert was crucial to the prosecution; (2) defense counsel had no knowledge or counsel’s performance was deficient because: (1) the opinion of the State’s Id. at 608. He, therefore, could have that were inconsistent with the victim’s blood type. The court ruled that

547 U.S. 1191 (2006), a sexual abuse case, the court ruled that defense In Gersten v. Senkowski, 426 F.3d 588, 608 (2d Cir. 2005), cert. denied,

though the police report indicated that there were antigens in the blood sample was constitutionally deficient because he failed to consult a serologist even speculative, and, therefore, inadmissible. He testified that because of the lack

p. 9 because he believed that any testimony from such an expert would be considered retaining an accident reconstruction expert, he decided not to do so paragraph of DiGregorio’s report. Trial counsel also testified that while he

trial counsel never explained why or what he did not understand in the final

pedestrian injuries or death.

the final paragraph, and that he understood his testimony. The defendant’s counsel testified that he understood everything in DiGregorio’s report, except examine the State’s expert. The record supports these findings as well. Trial 9

had previously tried approximately six driving while impaired cases involving

the issues in the case, and rather than hire an expert, chose, instead, to cross-

range of reasonable professional assistance.”

criminal trial lawyer for approximately thirty years. He also testified that he

The trial court also found that the defendant’s trial counsel understood proximately caused the accident that killed the victim. defense.” In that case, the issue was whether the defendant’s impairment had “indulge a strong presumption that counsel’s conduct falls within the wide expert in accident reconstruction, keeping in mind that in so doing, we must was constitutionally deficient performance in this case not to consult with an hearing on the motion for new trial, trial counsel testified that he has been a criminal trial attorney, and the record amply supports this finding. At the The trial court found that the defendant’s trial counsel is a seasoned

Sharkey, 155 N.H. at 641.

because “the exact nature of how the collision occurred was vital to [the]

Relying upon the above cases for guidance, we now turn to whether it

occurred. Id. and who testified that, but for the defendant’s impairment, it would not have defense, the State had substantial evidence to overcome it. the testimony of police officers who had attempted to reconstruct the accident because the victim had turned into his lane. would be on the panel; and (3) he knew that if he went to trial on an “expert” Id. The prosecution presented 993. The defendant contended at trial that the accident was unavoidable

counsel to consult with an independent accident reconstruction expert,” the court ruled that there was “a clear need . . . for [the defendant’s] trial In Strandlien v. State, 156 P.3d 986, 993 (Wyo. 2007), on the other hand,

(quotation omitted).

trial lawyer; (2) he was familiar with the area and with the type of jurors who sufficient performance because: (1) the attorney was an experienced criminal him to “assume[] certain factors that were not in evidence.”

p. 10 defendant’s trial counsel that the only analysis he could conduct would require missing evidence.” (Quotation omitted.) He would have explained to told him, “We can’t help you with this case. It can’t be reconstructed. We’re

doing

the posted speed limit, DiGregorio did not testify that the defendant was so

new trial, this expert would have

it was impossible to complete “a technical accident reconstruction.” Lakowicz Gilmanton. Lakowicz admitted that because of insufficient physical evidence, defense expert to rebut. testimony of Carl Lakowicz, a partner in Northpoint Collision Consultants in counsel ineffective for failing to consult with an expert in such reconstruction, P.3d at 993, the accident could be reconstructed and the court found defense This case is, therefore, unlike Strandlien. Whereas in Strandlien, 156

testified that, in his opinion, the defendant was driving his car ten miles over

the expert whom the defendant presented at the hearing on his motion for a

Therefore, there was little in terms of the State’s evidence of causation for a At the motion for a new trial, the defendant presented the report and

lack of physical evidence. counsel’s suspicion that the accident could not be reconstructed because of the defendant’s impairment had caused the accident. Although DiGregorio car was traveling ten miles over the speed limit, and would have confirmed trial

Additionally, the record demonstrates that had trial counsel consulted

to infer that the defendant exceeded the speed limit because he was impaired. because he was impaired. His testimony, at best, only allowed the jury

similar to this one.

from not especially probative of the central question before the jury: whether the Duncan, 528 F.3d at 1235-36, while in this case, DiGregorio’s testimony was was the cornerstone of the state’s case,” id.; see Richey, 498 F.3d at 362; Dugas is distinguishable as well because in Dugas, “the arson evidence

needed expert assistance to understand and challenge the State’s case, the is an experienced criminal trial attorney. While defense counsel in Dugas Like defense counsel in Lien, 574 N.W.2d at 609, the defendant’s trial counsel

arson case, the defendant’s trial counsel had previously tried cases that were Dugas. While the defense attorney in Dugas had never before tried an Thus, at least with respect to these factors, this case is distinguishable

be reconstructed. of physical evidence from the accident, he believed that the accident could not no escape. p. 11 Lakowicz opined that an exemplar pedestrian was not detectable at the point of

driver’s level of impairment. Based upon an experiment he conducted,

no escape” is the point at which an accident is unavoidable, regardless of the needed to stop safely--the “point of no escape.” He explained that the “point of be only two seconds away from the point of no escape (192 feet), and that the come to a safe, controlled stop. Lakowicz termed this point--the 192 feet informed one. expert’s opinion that is based upon assumptions is inadmissible was not an

from one another. Lakowicz opined that at a 205-foot distance, a driver would at thirty-five miles per hour, would need 192 feet to perceive a pedestrian and

belief that it would have been futile to consult with an expert because any

accident.

occurred during daylight, was when they were approximately 205 feet away night conditions, a driver of a vehicle in good working order, going up a wet hill opportunity that a driver would have had to see Hegerich, even if the incident vehicle and the presumed speed at which Hegerich walked, the first does not necessarily mean that it is inadmissible. Therefore, trial counsel’s Lakowicz further opined that based upon the speed of the defendant’s

present an affirmative case that the defendant’s impairment did not cause the

Based upon certain calculations, Lakowicz opined that under optimum

testimony of an expert, such as Lakowicz, is based upon certain assumptions, speculative, was not an informed one. See Gersten, 426 F.3d at 608.

counsel consulted an expert, such as Lakowicz, he could have been able to expert’s opinion is by cross-examination of the expert.” accident was unavoidable, regardless of the driver’s impairment. Had trial could have learned that another defense was available to him – that the Further, had trial counsel consulted an expert, such as Lakowicz, he accorded the expert’s testimony. reliable, it is up to the fact finder to determine the weight and credibility to be

152 N.H. 233, 244-45 (2005) (quotation omitted). Accordingly, the fact that the such as Lakowicz, would have been inadmissible because it would be

methodology is reliable, “[t]he appropriate method of testing the basis of an N.H. 609, 615-16 (2002). Once the trial court has determined that the expert’s

546 (2005). Provided that the trial court finds that the expert’s methodology is not [necessarily] . . . preclude its admissibility.” State v. Lavoie, 152 N.H. 542, bases an opinion “are matters which affect the weight of the evidence but do Generally, under New Hampshire law, the assumptions upon which an expert

On the other hand, trial counsel’s belief that the testimony of an expert,

determine. here, “the exact nature of how the collision occurred” was impossible to with an expert in accident reconstruction. p. 12 performance for trial counsel to fail, at the very least, to explore this possibility

death. Under the circumstances of this case, it was constitutionally infirm

affirmative case that the defendant’s impairment did not cause Hegerich’s

of this case.”

motion for a new trial, and had an opportunity to assess the credibility of the decline to do so. The trial court heard the testimony at the hearing on the Strickland test. The parties urge us to reach it in the first instance. We not constitutionally infirm, it did not reach the prejudice prong of the Because the trial court concluded that trial counsel’s performance was required to hire a consulting expert in similar assumptions. Had he done so, he might have been able to present an 2. Prejudice expert to learn what the expert could conclude based upon these same or constitutionally deficient performance for trial counsel not to consult with an Dugas, 428 F.3d at 332 n.21. 268 F.3d 485 (7th Cir. 2001). Our decision today “is grounded in the specifics Miller v. Anderson, 255 F.3d 455, 459, remand order modified by stipulation, cv-823, 96-cr-401 1, 2007 WL 1521212, at *7 (E.D. Pa. May 21, 2007); see incomplete (or inadequate) investigation.” United States v. Mitchell, Nos. 05constitutionally deficient for failing to call an expert as a result of an (Howard, J., dissenting). “[A]n attorney’s performance is never per se an expert to prove an element of its case. See Dugas, 428 F.3d at 344

We do not intend to imply that defense counsel is constitutionally

to present exculpatory evidence is not a reasonable trial strategy.” Id. at 611. likely have yielded exculpatory evidence.” relied upon expert testimony that used certain assumptions, it was Gersten, 426 F.3d at 610. “[F]ailing on the resulting ignorance to excuse his failure to explore a strategy that would “Defense counsel may not fail to conduct an investigation and then rely

conjecture, the testimony of an expert, such as Lakowicz,

regardless of the driver’s impairment. Lakowicz opined that there was no way for the accident to have been avoided “poke holes” in the State’s case. Rather, because he knew that the State’s case circumstances of this case, it was not sufficient for trial counsel merely to admissible, even if it was based upon assumptions. Under the unique

expert was constitutionally defective performance. Contrary to trial counsel’s the defendant’s trial counsel not to consult with an accident reconstruction performance was constitutionally sufficient, we conclude that the decision of Based upon all of these factors, even with the presumption that his

approximately two and one-half seconds. Thus, from the driver’s perspective, reaction time for a non-impaired person driving in daylight would be p. 13 13

different.

and been admissible under RSA 516:29-a, New Hampshire Rule of Evidence 702

BRODERICK, C.J.