2013-0762, The State of New Hampshire v. Oscar Grande

Mart” (Food Mart), in Manchester, and demanded money from the clerk. The masks and gloves, and one carrying a knife, entered the “Bremmer Street Food The relevant facts follow. On January 9, 201 3, two men, both wearing

affirm. contest the admission of evidence concerning an uncharged robbery. We (2007). On appeal, he a rgues that his trial counsel was ineffective by failing to t he defendant, Oscar Grande, was convicted of armed robbery. See RSA 636:1 DALIANIS, C. J. Following a jury trial in Superior Court (Abramson, J.),

brief and orally, for the defendant. Stephanie Hausman, deputy chief appellate defender, of Concord, on the

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

No. 2013 - 0762 Hillsborough - n orthern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.u s. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. N OTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

p. 2 2014, the trial court denied the defendant’s motion for new tria l and his subseq uently appointed counsel in the post - trial proceeding s. In October outcome of the post - trial proceedings in the trial court. The defendant was new trial as a self - represented party. We stayed the direct appeal pending the defendant was appointed counsel in his direct appeal, he filed his motion for a motion for new trial, alleging ineffective assistance of counsel. Although the After the defend ant filed his direct appeal, he filed in the trial court a

defendant. evidence of the 99 Cent Store robbery. Following trial, the jury convicted the caused the trial co urt to reverse its ruling and allow the State to present During opening statement s, defense counsel made several statements that motion, but stated that it would revisit its ruling after opening statements. was working on the night of th at robbery. The trial court denied the State’s about th at robbery, as well as the testimony of the 99 Cent Store employee who s ought to introduce Velasques’s testimony concerning what she had over heard defendant’ s admissions regarding the Food Mart robbery. Specifically, it Cent Store robbery, arguing that it wa s necessary to corroborate the Before trial, the State moved in limine to introduce eviden ce of the 99

defendant was charged with the robbery of only the Food Mart. into a back room, grabbed a shovel, and c hased Danny out of the store. The into the store with a knife and demanded money from an employee, who ran (99 Cent Store) in Manchester. During that robbery, Danny, acting alone, went defendant and Danny concernin g a robbery of the 99 Cent and Cedar Market that, on January 6, she overheard a separate conversation between the what she had heard about the Food Mart robbery. She also told the police A few days later, Velasques gave a statement to the police concerning

advised her to speak with the police. theft charge and “didn’t need any more . . . trouble.” Velasques’s attorney conversati on, Velasques contacted her attorney because she had a pending the dogs wouldn’t follow them back to [the] house.” After hearing this having put “their gloves and masks in the garbage cans and jump[ed] fences so a cop out back,” and they left without getting any money. They also discussed the knife and was at the counter with the clerk,” who told them that “there was store “off of Bremmer Street.” The two said that the defendant “went in with who m she knew as “Danny,” discussing a robbery they had committed at a the Food Mart. On January 9, Velasqu es overheard the defendant and a man, and others, at a resi dence located approximately one - and - one - half blocks from At the time of the robbery, the defendant was living with Lisa Velasques,

police conduct ed a canine track of the suspects, which was unsuccessful. arrived, the clerk showed them the surveillance footage of the robbery. The police. The two men left the store, and the clerk called 911. When the police clerk did not give the men any money, but stated that he was going to call the p. 3 3

collateral proceeding.” Id. However, “we again emphasize[d] that we strongly choice of whether to raise an ineffectiveness claim on direct appeal or in a later record.” Id. (quotation omitted). Thus, we provided a defendant “with the appeal “where the factual basis of the claim appe ar s indisputably on the trial appeal. Thompson, 161 N.H. at 527. Such a claim can be decided on direct defendant may raise an ineffective assistance of counsel claim in his direct In Thompson, we held that in certain “extraordinary” situations, a

these circumstances. support of his assertion that he may b ring his ineff ectiveness claim under the defendant relies solely upon State v. Thompson, 161 N.H. 507 (2011), in barred from raising his ineffectiveness claim in t his direct appeal. In his brief, We begin with the State’s argument that the defendant is procedurally

admitted evidence of the 99 Cent Store robbery. merits of the defendant’ s claim, it was not error for the trial court to have ineffectiveness claim. Alter natively, the State argue s that, even if we reach the judicata, and judicial estoppel prevent the defendant from re - litigating his proceeding. The State also argues that the do ctrines of collateral estoppe l, res claim when he failed to appeal the trial court’s rulings in his collateral inadmissible. The State argues that the defendant w aived his ineffectiveness of the 99 Cent Store robbery and failed to articulate why that evidence was failed to contest the trial court’s ruling that he had opened the door to eviden ce The defendant argues that his trial counsel was ineffective because he

presented in this appeal. record. The defendant’s ineffective assistance of counsel claim is the sole issue substantiv e, or preservation issues that m ight arise upon its review of the motion subject to the State’s reservation of the right to raise any procedural, ineffective assistance of counsel claim to his direct appeal. We granted the Approximately a month later, the defendant filed a motion to add an

denied on May 11, 2015. allow late filing, which we interpreted as a motion for reconsideration and to allow late filing. See id. Afterward, the defendant filed another motion to The defendant again failed to file a notice of appeal, and we denied his motion both the notice of discretionary appeal form and instructions on its c ompletion. the notice of appeal on or before March 2 p. 3 3, 2015. Included with our order was see Sup. Ct. R. 21(6), we deferred ruling on his motion and ordered him to file because he did not accompany the motion with the required notice of appeal, notice of appeal” of the trial court’s denial of his motion for new trial. However, In February 2015, the defendant filed a “motion to allow late filing of a

the trial court’s denial of his motion for new trial. See Sup. Ct. R. 7 (1) (B). subsequent motion for reconsideration. The defendant did not timely appeal p. 4 4

it could determine tha t the evidence was inadmissible.” and because counsel “did not present the trial court with the basis upon which opened the door, . .. counsel appeared to have agreed that he opened the door” was ineffective because, “when the trial court indicated that counsel had the defendant raises on appeal. On appeal, he argues that his trial counsel constituted inadmissible hearsay. These issues are identical to th ose which testimony about the 99 Cent Store robbery; and (2) Velasque s ’s testimony failed to argue that: (1) in fact, he had not opened the door to Velasque s ’s the defendant argued that his trial counsel was ineffective because he had for new trial are identical to those he now raises on appeal. In the trial court, We first consider whether the issue s the defendant raised in his motion

omitted); see Pennsylvania v. Finley, p. 4 481 U.S. 551, 557 (1987). that the civ il test applies. State v. Hall, 154 N.H. 180, 182 (2006) (quotation because the defendant does not argue otherwise, we assume without deciding trial based upon ineffective assistance of counsel, is civil in nature,” and Because we have held that “[p]ost - conviction relief, such as a motion for a new issue; and (5) the finding at issue was essential to the first judg ment. Id. did; (4) the party to be estopped had a full and fair opportunity to litigate the to be estopped appeared in the first action or was in privity with someone who action; (2) the first action resolved the issue finally o n the merits; (3) the party estoppel applies when: (1) the issue subject to estoppel is identical in each State sets forth the test, generally applicable in civil cases, that collateral N. Am. v. Hansaconsult Ingenieurges ellschaft, 163 N.H. 46, 50 (2011). The o r fact actually litigated and determined in the prior action.” Hansa Consult of prior action, or a person in privity with such a party, from relitigating any issue argument in this a ppeal. The doctrine of collateral estoppel “bars a party to a of collateral estoppel, from making his ineffective assistance of counsel The State contends that the defendant is precluded, under the doctrine

his direct appeal. the trial court’s ruling, and then obtain appellate review of his claim as part of defendant to litigate his ineffectiveness claim in the trial court, fail to appeal the re st of his appeal. I d. at 528. However, n othing in Thompson allows a him to raise his ineffectiveness claim in the trial court before proceeding with stated that a defendant may request that we stay his direct appeal in order for in the trial court, lost, and failed to appeal the trial court’s decision. W e have Here, the defendant stayed his direct appe al, litigated his ineffectiveness claim without having first sought collateral review in the superior court. Id. at 509. involved a defendant who brought his ineffectiveness claim in his direct appeal, Thompson is readily distinguishable from the instant case. Thompson

preference for collateral review of ineffectiveness claims.” Id. disfavor adjudication on direct appeal,” and that “we maintain a strong p. 5 5

CONBOY, LYNN, and BASSETT, JJ., concurred.

ineffective assistance of counsel issues again in this direct appeal. satisfied, we hold that the defendant is collaterally estopped from raising his N.H. 242, 247 (2010). Therefore, because all of the prongs of the test are required to grant his request for a new trial. See Tyler v. Hannaford Bros., 161 defendant’s argument s on the merits, and, had it not done so, would have b e e n esse ntial to the final judgment. The court considered and rejected the the trial court’s finding s on the defendant’s ineffective assistance issues were hearing on the merits of his motion for new trial. We likewise conclude that and is a party in this appeal, was appointed counsel, and the trial court held a test are also met because the defendant was a party to th e trial court action We conclude that the third and fourth prongs of the collateral estoppel

that the first action resolved the issue s on the merits. decision a fi nal judgment. See Super. Ct. Civ. R. 46(b). Therefore, we conclude court’s ruling. The defendant’s failure to appeal rendered the trial court ’s rejected the defendant’s argument, the defendant failed to appeal the trial merits. The trial court held a hearing on the merits and, after the court We next consider whether these issues were resolved f inally on the