2014-0370 and 2016-0096, The State of New Hampshire v. Jason N. Candello

ineffective assistance by allowing the defendant to make the decision to admit defense counsel), who is not his appellate counsel, rendered constitutionally contends that his trial counsel (hereinafter referred to as trial counsel or motion for a new trial based upon ineffective assistance of counsel. He bodily injury. He also appeals the Trial Court’s (Kissinger, J.) denial of his State offered insufficient evidence to prove that the victim suffered serious jury for second - degree assault. See RSA 631:2, I (2016). He argues that the HICKS, J. The defendant, Jason N. Candello, appeals his conviction by a

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

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Sean P. Gill, assistant attorney

2016 - 0096 No s. 2014 - 0370 Cheshire

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

injury to [the victim] in the form of broken ribs and splenic laceration.” the indictment alleged that the defendant recklessly “caused serious bodily of the function of any part of th e body.” RSA 6 p. 2 25:11, VI (2016). In this case, causes severe, permanent or protracted loss of or impairment to the health or injury to another.” “‘Serious bodily injury’ means any harm to the body which of second - degr ee assault if he “[k]nowingly or recklessly causes serious bodily The controlling statute, RSA 631:2, I(a), provides that a person is guilty

brackets, and emphasis omitted). bodily injury is a question of fact for the jury to decide.” Id. (quotations, 165 N.H. 16 p. 2 2, 164 (2013). “Whether the victim’s injuries constituted serious State, could have found guilt beyond a reasonable doubt. State v. Dorrance, evidence and all reasonable inferences from it in the light most favorable to the defendant must establish that no rational trier of fact, viewing all of the To prevail upon his challenge to the sufficiency of the evidence, the

( p. 2 2016). error, our standard of review is de novo. State v. Cable, 168 N.H. 673, 67 7 Because a challenge to the sufficiency of the evidence raises a claim of legal evidence to demonstrate that the victim suffered serious bodily injury. second - degree assault, in which he argues that the State presented insufficient We first address the defendant’s direct appeal of his conviction for

I I. Direct Appeal

appeals. of th at ruling. We consolidated the defendant’s direct and discretionary trial court denied his motion. The defendant th en filed a discretionary appeal based upon alleged ineffective assistance of counsel. Following a hearing, the conviction. After doing so, he filed a motion for new trial in the trial court Thereafter, the defend ant directly appealed his second - degree assault

acquitted him of the felon in possession of a deadly weapon charge. motion, and the jury convicted him of the second - degree assault charge and defendant moved to dismiss all of the charges. The trial court denied his broken ribs and splenic laceration.” At the close of the Stat e’s case, the defendant recklessly “caused serious bodily injury to [the victim] in the form of of a deadly weapon. The second - degree assault indictment alleged that the against the victim, his father, and on one count of being a felon in possession The defendant was indicted on one count of second - degree assault

I. Brief Procedural History

prior inconsistent statements. We affirm. certa in audio recordings and by failing to cross - examine the victim regarding p. 3 3

beyond a reasonable doubt, that the defendant caused the victim to su ffer most favorable to the State, we hold that a rational juror could have found, Viewing this evidence and all inferences to be drawn from it in the light

died without the blood transfusion, bu t, in his opinion, “probably not.” transfusion.” He stated that it was “[u]nknown” whether the victim would have hospital for “three days” and treated with “[r]est, observation, [and a blood] have his spleen removed.” He testified that the victim was admitted to the there was the potential that he would have to go to the operating room and stated that a spleen laceration “can be severe” and, “[i]n the [victim’s case,] inside his abdominal cavity, so it was -- you know -- [a] pretty big injury.” He caused the spleen to double in size. There was also a fair amount of blo od lining of the spleen.” He stated that “the bleeding from the spleen actually spleen to an area underneath what [is called] the splenic capsule or outside structure. And in this case, a large amount of b lood [had] escaped from the splenic hematoma,” which means that “the spleen [had] received injury to its The surgeon explained that the victim suffered from a “subcapsular

blood cell count was “substantially lower than normal.” [e]nough blood loss to require an operation.” He stated that the victim’ s red which is an injury to the spleen, ... significant enough to potentially cause . . . fractures,” “bruising over his left flank,” and “a grade 4 splenic laceration, should be hospitalized.” The surgeon testified that the vi ctim had “two rib emergency medicine physician who,” after seeing the victim, “felt that he The jury also heard the trauma surgeon testify that he was “called by the

“intensive - care unit.” officer testified that when he spoke with the victi m, the victim was in the ribs. The victim was subsequently admitted to the hospital. The investigating room, where it was discovered that he had a ruptured spleen and fractured testified that he then teleph oned a friend “for help” and went to the emergency was in such pain that he “couldn’t make it to the end of the bed.” The victim that he “continued to work the next week” until he “got up one morning” and hitting b oth sides.” He stated that after the assault his rib cage was sore and the shoulders, around the neck area, and then he went down my ribcage, defendant “hit me two or three, four times in the head, [a] couple [of times] in the victim “[q]uite hard” eleven or twelve times. The victim testified that the The jury heard testimony from the victim that the defendan t “punch[ed]”

conclude that the victim’s injuries were severe. there was insufficient evidence from which a rational trier of fact could protrac ted period of time or that any impairment was severe.” We disagree that pain, there was no evidence that the pain impaired his physical abilities for a although the victim “received minimal medical treatment and experienced some victim suffered either “severe or protracted impairment.” He maintains that, The defendant contends that there was insufficient evid ence that the p. 4 4

standard of reasonableness. Id. To meet this prong of the test, the defendant defendant must show that trial counsel’s representation fell below an objective To satisfy the first prong of the test, the perfo rmance prong, the

N.H. 210, 212 (201 p. 4 4). counsel’s performance was not constitutionally defective. State v. Collins, 166 (quotation omitted). A failure to establish either prong requires a finding that actually prejudiced the outcome of the case.” Ca ble, 168 N.H. at 680 was constitutionally deficient and, second, that counsel’s deficient performance claim, the defendant must demonstrate, “first, that counsel’s representation Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail upon his reasonably competent assistance of counsel. Cable, 168 N.H. at 680; see Both the State and Federal Constitutions guarantee a criminal defendant

Ball, 12 p. 4 4 N.H. 226, 231 - 33 (1983). State Constitution and rely upon federal law only to aid our analysis. State v. CONST. amends. VI, XIV. We first address the defendant’s claim under the both the State and Federal Constitutions. See N.H. CONST. pt. I., art. 15; U.S. counsel. The defendant ’s claim of ineffective assistance of counsel rests upon denial of his motion for a new trial based upon alleged ineffective assistance of We next consider the defendant’s discretionary appeal of the trial court’s

II I. Discretionary Appeal

presented sufficient evidence t o support a finding of serious bodily injury. of any part of the body” (quotations omitted)). Thus, we hold that the State permanent or protracted loss of or impairment to the health or of the function bodily inju ry” in the disjunctive: “any harm to the body which causes severe, 625:11, VI does not require permanent injury inasmuch as it defines “serious VI; cf. State v. MacArthur, 138 N.H. 597, 600 (199 p. 4 4) (explaining that RSA the victim’s injuries constituted a “protracted” impairment. See RSA 625:11, not address the defendant’s argument that there was insufficien t evidence that finding that the victim’s injuries constituted a “severe” impairment, we need Because we conclude that the evidence was sufficient to support a

of any part of the body.” RSA 62 p. 5 5:11, VI. transfusion, constitute “severe . . . impairment to the health or of the func tion laceration to the spleen, which required a three - day hospital stay and a blood juror could have found that two fractured ribs along with a grade four laceration or rupture of the spleen and was bleedi ng internally”). A rational victim suffered serious bodily injury where “victim suffered a grade three p. 4 410, 412 (Colo. App. 2009) (Graham, J., specially concurring) (concluding that breathing passages, and sin us infection); cf. People v. Daniels, 240 P.3d 409, injury where victim had broken nose, swollen discolored eyes, clogged (holding that rational juror could have found defendant caused serious bodily serious bodily injury. See State v. Scognamiglio, 150 N.H. 534, 537 (2004) 5

rest of my life.” The State asked the detective whether the defendant was which the defendant stated, “I told you I’m not gonna let him yell in my face the following the assault. The State played a portion of one of the recorded calls in defendant and his mother that occurred while the defendant was in jail officers involved in the case about certai n telephone calls between the telephone calls. During trial, the State questioned one of the law enforcement assistance by allowing him to make the decision to admit two audio recorded The defenda nt first contends that trial counsel rendered ineffective

A. Admission of Audio Recordings

address each argument in turn. cross - examine the victim regarding certain prior inconsistent statements. We the defendant contends that trial counsel was ineffective because he did not defendant and his mother recorded when the defendant w as in jail. Second, the decision to admit audio recordings of two telephone calls between the was constitutionally defective because counsel allowed the defendant to make assistance in two respects. Fir st, he asserts that trial counsel’s representation The defendant argues that his trial counsel rendered ineffective

is met de novo.” Id. (quotation omitted). matter of law, and we review the ultimate determination of whether each prong findings unless they are not supported b y the evidence or are erroneous as a (quotation omitted). “Therefore, we will not disturb the trial court’s factual inquiry are mixed questions of law and fact.” Cable, 168 N.H. at 681 “Both the performance and prejudice prongs of the ineffectiveness

213 (quotation omitted). we consider the totality of the evidence presented at trial.” Collins, 166 N.H. at N.H. at 681 (quotations and citations omitted). “In making this determination, probability sufficient to undermine confidence in the outcome.” Cable, 168 of the proceeding would have been different. A reasonable probability is a reasonable probability that, but for counsel’s unprofessional errors, the result “To meet the second pr ong, the defendant must show that there is a

see Strickland, 4 p. 6 66 U.S. at 689. from counsel’s perspective at the time.” Id. (quotation and brackets omitted); circumstances of counsel’s challenged conduct, and to evaluate the conduct effort be made to eliminate the distorti ng effects of hindsight, to reconstruct the Accordingly, “a fair assessment of attorney performance requires that every the presumption that trial counsel reasonably adopted his trial strategy. Id. tactical decision s that counsel must make. Id. The defendant must overcome decisions of trial counsel, bearing in mind the limitless variety of strategic and 161 N.H. p. 5 507, 529 (2011). We afford a high degree of deference to the strategic func tion as the counsel the State Constitution guarantees. State v. Thompson, must show that trial counsel made such egregious errors that he failed to 6

. . . .

[Defense counsel]: Most likely, yeah. That’s what he wants.

two phone calls? [Prosecutor]: Let me ask this. Are we going to play the full

you want to press that question? brought us here is the specific objection to the last question. Do THE COURT: Okay. So really the request is that -- what

entire conversation. [Defense counsel]: Yes, he does. He would prefer playing the

(Pause)

THE COURT: Absolutely.

[Defense counsel]: Can I have a minute?

THE COURT: Thank you.

[Defense counsel]: Yeah, I’ll stop.

sure that that’s your client’s specific request that we do that. So if that’s really your request, then -- then, I just want to make assume you know what’s -- what -- the remainder that’s on there. -- I haven’t heard anything more than this, so I don ’t know -- I if it is, then I’m going to grant that request, but I haven’t heard the The question is, is that really what you want to have happen. So -client, a nd see if he wants -- I think your objection is well founded. THE COURT: Why don’t you talk to [the defendant], your

want in, but if he wants the whole tape, I’ll play the whole tape. play both tapes. There’s a lot in there that I assume he doesn’t [Pro secutor]: If he wants us to play the whole tape, I will

we play the whole tape. know, what it was in regards to. Want to play the whole tap e, then know, give his opinion to the jury about what this is about or, you time, but I don’t think it’s proper for him to base an opinion -- you [Defense counsel]: I know that the State’s just trying to save

following exchange took place: referring to his father in the statement. Defense counsel objected, and the p. 7 7

of the statements and forbidding their use as character or propensity the full recordings by asking the court for an instruction limiting the jury’s use recordings would be played,” nor did counse l “seek to mitigate the damage from [the defendant] before allowing him to make the decision about whether the full reasonable attorney conduct” because, here, “counsel did not adequately advise counsel’s perform ance did not fall below the established standards for The defendant contends that the trial “court erred in finding that

standard of reasonableness. had failed to prove that his trial counsel’s conduct fell below an objective objectively reasonable as counsel.” Thus, the court ruled that the defendant defendant’s] wish to have the full recording played in order to remain The court concluded that trial counsel “was not required to override [the

established standard of reasonableness. conduct in following his client’s specific request fell below the the defense wanted to do. The question is whether [trial counsel’s] recording, even after the Court asked again if that was really what The record is clear that [the defendant] decided to play the full [the defendant] after th e State offered to play the full recording. [t]hat is not what happened here. [Trial counsel] conferred with

reasonable attorney conduct.” However, the court found that full recording as evidence, it would fall below the established standards for damaging to [the defendant]. If [trial counsel], acting alone, had introduced the court found that “playing the otherwise inadmissible recording was very Following the hearing on the defendant’s motion for a new trial, the trial

defe ndant made derogatory remarks about his father. statements made by the defendant. In addition, during the telephone calls, the potential drug use. The recordings also included threatening and homophobic tried and his rationale for the assault, as well as his mental health issues and statements by the defendant referencing the assault for which he was b e ing conversations between the defendant and his mother. The recordings included Thereafter the State played the two audio recordings of the telephone

(Emphases added.)

THE COURT: All right. We’ ll do that. We’ll do that.

would prefer that the entirety be played. [Defense counsel]: That’s my client’s position, is that he

request -from your perspective that the context be put on; is that your THE COURT: I think -- I think -- you’re saying it’s important p. 8 8

(“Where a defendant, fully informed of the reasonable options before him, at 1442; see also United States v. Weaver, p. 8 882 F.2d 1128, 1140 (7 th Cir. 1989) his ultimate decision to follow the client’s will may not be lightly disturbed.” Id. thoroughly explain the potential problems with the suggested approach, then commanded by his client to present a certain defense, and if he does made under the explicit direction of the client.” Id. Accordingly, “if [counsel] is choices of trial counsel, we must give great deference to choices which are dictate the manner in which he is tried, it follows that, in evaluating strategic “Because we recognize tha t a defendant must have this broad power to

19 p. 8 85). master of the defense.” Mulligan v. Kemp, 771 F.2d 1436, 1441 (11 th Cir. ‘reasonable effectiveness,’ is still only an assistant to the defendant and not the U.S. at 691. This is so because “trial counsel, while held to a standard of defendant and on information supplied by the defendant.” Strickland, 466 usually based, quite properly, on informed strategic choices made by the influenced by the defendant’s own statements or actions. Counsel’s actions are reasonableness of counsel’s actions may be determined or substantially such evidence. As the Supreme Court stated in Strickland, “[t]he counsel is required to ignore the defendant’s request to allow the admission of 167 N.H. 8, 13 (2014). Nonetheless, we do not believe that this means that strategy that counsel may make on behalf of a defendant.” State v. Rawnsley, decision of whether to object to inadmissible evidence is an aspect of trial Id. (quotation omitted). In that respect, we agree with the defendant that “[t]he require counsel to obtain the defendant’s consent to every tactical decision.” Florida v. Nixon, 543 U.S. 175, 187 (2004). “That obligation, however, does not ‘important decisions,’ including questions of overarching defense strategy.” “An attorney undoubtedly has a duty to consult with the client regarding

whether counsel’s conduct was indeed deficient. See id. consider the issue of prejudice only if there is a legitimate question as to we find it helpful to address the merits of the defendant’s argument, and adopt the analytic approach that promotes clarity and ease of review. Id. Here, omitted). We have also recognized, however, that courts have the flexibility to performance fell below the standard of reasonable comp etence.” Id. (quotation cannot demonstrate such prejudice, we need not even decide whether counsel’s Wisowaty, 137 N.H. 29 p. 8 8, 302 (1993). As we have explained, “[i]f the defendant threshold matter that the alleged er ror by counsel prejudiced his case. State v. ineffective assistance of counsel is to require the defendant to prove as a We recognize that the preferable course in a challenge based upon

theref ore, “[f]or this decision, [the defendant] essentially represented himself.” critical strategic decision to his uninformed and uncounseled client” and, defendant maintains that trial counsel “abdicated his responsibility to make a [his] wish that the calls be heard in full.” (Quotation omitted.) In doing so, the evidence.” Rather, the defendant claims that trial “counsel blindl y followed p. 9 9

A. p. 9 97 - 334 - 04(CK, Civ.A.02 - 095(CKK), 2005 WL 692082, at *9 (D.D.C. 2005) guarantees. See Cable, 168 N.H. at 680; United States v. Mathis, No. CRIM. egregious that he failed to function as the counsel the State Constitution allow the defendant to make the decision to admit the recordin gs was so Under these circumstances, we cannot say that counsel’s decision to

The defendant did not testify at the hearing.

typically would have happened, but I don’t remember. recess where we could have listened to them again. That’s what would have had them played. I would have, you know, asked for a [the recordings], that I would not have -- I don’t believe that I If [the defendant] had told me that he did not know what was on

decision. He further stated: recordings, but that he consulted with the defendant and let him make the the hearing that, if it had been his choice, he would not have played the entire Trial counsel later agreed with the counsel representing the defendant at

doing so, of taking any particular tact ic or strategy. conversation about it, to let him know the merits and demerits of kind of full disclosure and an opportunity to, you know, to have a what my client wishes to do so long as there’s been, you know, And ultimately it’s my opinion that I err to the side of doing

and in the decision. possible you want to have your client involved in the conversation make certain strategic and tactical decisions. And whenever the re’s times during a trial or during any part of a case when you I think in my opinion and my experience and training that

defendant “ultimately make the call.” He explained: although he had reservations about playing the recordings, he let the sa id that he had listened to them.” He agreed with the prosecutor that, he listened to the tapes prior to trial and that he believed “that [the defendant] believed “that [the defendant] wanted to play the entire tape.” He testified that idea or not.” Counsel stated that, in his opinion, “it was not,” however, he defendant] about whether or not . . . playing the entire phone call w as a good motion for a new trial that he recalled having “a brief discussion [with the In this case, trial counsel testified at the hearing on the defendant’s

strategy, eliminating the po ssibility of a compromise verdict”). “counsel consulted with his client and they chose to pursue an all - or - nothing 408, 416 (20 p. 10 10) (concluding that trial counsel did not act unreasonably where basis of a claim of ineffective assistance of counsel.”); State v. Brown, 160 N.H. agrees to follow a particular strategy at trial, that strategy cannot later form the 10

the recordings as part of his trial strategy. to admit the recordings introduced detrimental evidence, trial counsel utilized thereafter acquitted the defendant of that charge. Thus, although the decision acquitted of the felon in possession of a d eadly weapon charge. The jury defendant in the same recording to argue that the defendant should be argument, trial counsel relied upon one of the statements made by the examin ation of a detective involved in the case. Further, in his closing statements made by the defendant in one of the recordings in his cross - Moreover, it is noteworthy that, at trial, trial counsel utilized certain

United States v. Masat, 896 F.2d 88, 92 (5 th Cir. 1990). lawyer did exactly what he ask ed him to do. That argument answers itself.” being asked to permit a defendant to avoid conviction on the ground that his to play the recordings. “Cutting through the smoke, it is apparent that we are thereafte r did consult with the defendant and that the defendant’s choice was opportunity to consult with [the defendant],” the record shows that counsel [initially] suggested that the full recording be played before he was given an Even assuming, as the defendant contends, that, at trial, “counsel

recordings. and he would have asked for a recess to allow the defendant to li sten to the recordings, counsel did not believe he would have had them played to the jury, that, if the defendant had told him that he did not know what was on the listened to the recordings and, althou gh counsel could not recall, he stated Moreover, counsel testified that he believed the defendant said that he had counsel had, in fact, done what defendant claimed he had not done). conduct fell below an objective standard of reasonableness where defense (stating that court could not conclude from record that defense counsel’s defendant chose to admit the recordings. See Cable, 168 N.H. at 683 - 84 regarding whether it was a good idea to play the recordings and that the hearing supports a finding that counsel did, in fact, consult with the defendant his trial counsel. Rather, t rial counsel’s uncontradicted testimony at the this is not a case where the defendant merely acquiesced to a decision made by the full recordings wo uld be played.” Contrary to the defendant’s suggestion, advise [the defendant] before allowing him to make the decision about whether defendant suggests, that counsel abdicated his role by failing to “adequately and ellipsis omitted)). On the record before us, we cannot conclude, as the functioning as the ‘counsel’ guaranteed by the Sixth Amendment” (quotation counsel’s decisions were unreasonable and “so serious that counsel was not submit jury instruction on lesser - included offense, court could not say that 1987) (concluding that, where defendant had pa rticipated in decision to not ‘unreasonable.’”); see also Parker v. State, 5 p. 10 10 So. 2d 281, 287 (Ala. Crim. App. characterize a tactic pursued by an attorney at her client’s behest as (“Circuit courts confron ted with cases like this one at bar have also refused to p. 11 11

and whether it resulted from his conversation with the defendant. He agreed withdrew from questioning the victim about his statements to t he investigator defendant’s motion for a new trial, defense counsel could not recall why he whether the victim fell to the floor during the assault. At the hearing on the statements the victim allegedly made rega rding the location of the assault and ineffective because he failed to question the victim about inconsistent In his request for a new trial, the defendant argued that trial counsel was

denied his request. the State had excused him a nd he was no longer under subpoena, the court investigator.” Defense counsel then sought to recall the victim, but because objection because the victim “was not asked about his statements to this st atements would be hearsay. The trial court agreed, and sustained the State’s been given the opportunity to address the statements and, therefore, the foundation for the statements to be introduced because the victim had not the assault, the State objected. The State argued that there was an insufficient began asking about statements that the victim made t o the investigator about Defense counsel later called the investigator as a witness. When counsel

questioning.” confer with the defendant, and, after he did so, he withdrew “from that line of proper to examine him about those thing s.” Defense counsel then asked to said things to [the investigator] inconsistent with his testimony [at trial], it’s point out inconsistent statements. The trial court ruled that “if [the victim] “call[ed] for hearsay.” D efense counsel informed the court that he intended to speaking to an investigator. The State objected, arguing that the question During trial, defense counsel asked the victim whether he remembered

have affected the jury’s” decision. witness” and “[e]ven minor inco nsistencies in his account of the assault would examine the victim prejudiced his case because the victim was “the State’s key objectively unreasonable. He further maintains that counsel’s failure to cross result of a misunderstanding of the law” and, therefore, his performance was question [the victim] about his prior statements appears to have been the made regarding the assault. He contends that “counsel’s choice to not to cross - examine the victim about prior inconsistent statements that the victim The defendant next argues that his trial counsel was inef fective for failing

B. Inconsistent Statements

opinion to ‘trump’ her own with respect to calling” a witness). reasonable professional assistance when she allowed Defendant’s informed 692082, at *9 (determining that counsel did not act “outside the bounds of acted reasonably. See Cable, 168 N.H. at 680; see also Mathis, 2005 WL overcome the presumption that, under the circumstances, his trial counsel Based upon the foregoing, we hold that the defendant has failed to p. 12 12

and may not be i nconsistent at all. The difference in the details of standing or on the floor may reasonably refer to different moments outside of the bedroom. The details about whether [the victim] was memory could result in these differences in the location inside or assault and, due to the layo ut of the home, slight differences in [t]he location details do not go to an element of second degree

Based upon the record before us, we agree with the trial court that

his head and fell to the floor. way down to his shoulders, chest and abdomen when he covered defendant] started to pound him in the head and then worked his teach you to look at me that way!” [The victim] said [the defendant] threw down the phone and charged at him, yelling, “I’ll looked down the hall. He said he did not say a word when [the [The victim] said he opened the door to his bedroom and

heard [the defendant] hollering and screaming in the kitchen. . . . kitchen in his home. He said the door was closed. He said he [The victim] said he was in his bedroom at one end of the

The investigator reported that the victim described the events as follows:

defendant then “left the room.” that when the defendant stopped beating him, “I . . . was on my knees” and the in my head, started on my shoulders and worked down my rib cage.” He stated corner of the bed, standing, and he got above me . . . and he hit me a few ti mes beat me up.” He explained that the defendant “towered over me. I was on the hall and said, ‘I’ll teach you to look at me,’ intimidatingly, and commenced to looking down the hall and slammed the phone on the flo or and came down the “opened the door and looked down the hall . . . [a]nd [the defendant] saw me on. I could tell it was [the defendant] on the phone.” He stated that he room with the door closed . .. and I could hear hollering and screaming going At trial, the victim testified that, on the day of the assault, “I was in my

of the trial. We agree. regarding his allegedly inconsistent statements did not prejudice the outcome court found that trial couns el’s decision not to cross - examine the victim have him available for recall would have changed the outcome.” Thus, the [trial counsel’s] decision to not cross - examine [the victim] either initially or The trial court found that “[t]here [was] no reasonable probability that

furth er recalled the layout of the victim’s home in which the assault occurred. inconsistent with respect to whether he fell to the floor during the assault. He with the prosecutor, however, that the victim’s testimony was not, in fact, p. 13 13

retired, specially assigned under RSA 490:3, concurred. DALIANIS, C.J., and LYNN and BASSETT, JJ., concurred; CONBOY, J.,

briefed, are deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003). Finally, any issues raised in the defendant’s notices o f appeal, but not

Strickland, 466 U.S. at 687. under the State Constitution.” Id. at 689 (quotation omitted); see also necessarily, we reach the same result under the Federal Constitution as we do ineffective assistance of counsel is the same under both constitutions, “Because the standard for determining whether a defendant has received establish that he received constitutionally defective assistance of counsel. For all of the se reasons, we conclude that the defendant has failed to

C. Conclusion

the trial would have been different. See Cable, 168 N.H. at 681. is a reasonable probability that, but for counsel’s alleged errors, the result of Accordingly, we conclude that the defendant has failed to establish that the re

extent that confidence in the outcome is undermined. his testimony [did] not affect [the victim’s] credibility to such an