2017-0443, The State of New Hampshire v. Joel Martin

counsel were granted; and (2) denied his request to instruct the jury to it: (1) failed to inquire how he w anted to proc eed if his mo tion to discharge his RSA 159:3 (2016). He argues that the Superior Court (Brown, J.) erred when of a dangerous weapon. See RSA 630:1 - b, I (a) (2016); RSA 631:2, I(b) (2016); second degree murder, second degree assault, and being a felon in possession BASSETT, J. The defendant, Joel Martin, appeals his convictions for

orally, for the defendant. Eric S. Wolpin, assistant appellate defender, of Concord, on the brief and

for the State. on the brief, and Stephen D. Fuller, senior assistant attorney general, orally), Gordon J. MacDonald, attorney general (Katherine A. Triffon, attorney,

No. 2017 - 0443 Hillsborough - northern judicial district

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

appoint ing Garrity and Shepherd as defendant’s counsel and a uthoriz ing their orally denied the motion. On March 3, the trial court issued a written order conducting a n extended colloquy with the defendant and Garrity, the court p. 2 21, and, on that same day, the trial court held a hearing on the motion. After counsel. Garrity filed a motion to withdraw on the next business day, February defendant. At that meeting, the defendant asked Garrity to withdraw as his Two days later, o n Saturday, February 18, Garrity met with the

payment for their services by the State of New Hampshire.” requested that the trial court appoint them as trial counsel and “authorize taking over a murder case approximately a week and half before trial,” and Garrity and Shepherd cited the imp racticality “of the Public Def e nder’s Office services other than counsel on the basis of the [defendant’s] financial status.” affidavit affirming his indigency,” and the court had “approved requests for than was called for by the fee agreement,” the defendant had “filed a financial the total fees paid to Garrity as of February 16, p. 2 2017 were “substantially less Garrity had not received payment since July 15, 2015. They also reported that and that the defendant and his family had agreed to pay for Garrity’s services, informed the court that, although the defendant had originally retained Garrity indigent and requested that the court appoint them as his counsel. They A ttorney Justin Shepherd advised the trial court that the def endant was Almost two years later, i n a motion dated February 16, 2017, Garrity and

appearance, and, on June 9, the defendant’s appointed counsel withdrew. represent the defendant. On June 3, p. 2 2015, Attorney Paul Garrity filed an from the Office of the New Hamp shire Public Defender was appointed to being a felon in possession of a deadly weapon. On May 12, 2015, counsel second degree murder, two counts of second degree assault, and one count of The defendant was later arrested and charged with alternative counts of

amputated finger. the defendant was found nearby with a lacerated neck and a partially defendant in a bear hug and removed him from the club. Shortly thereafter, stabbed one guard and slashed the other. One of the guards grabbed the security guards pull ed the defendant away f r om the vic tim, t he defendant approached and stabbed the victim, inflicting the fatal wounds. As t wo club As one of the club promoters w as speaking to the victim, the defendant

ended, and t he defendant walked to the other side of the bar. murder victim, and a fight b roke out. After o ther people intervened, the fight and dark. The defendant approached a group of three men, including the p. 2 2015, the defendant went to a Manchester nightclub. The club was crowded The following evidence was presented to the jur y. On Friday, May 8,

testimony. We affirm. consider the effect of alcohol intoxication on eyewitness identification p. 3 3

the defendant must result in a clear and unequivocal statement. ’” Sweeney, counsel need not be punctilious; rather, the dialogue between the court and “‘ [T]he triggering statement in a defendant’s attempt to waive his right to defendant use specific language to invoke his right to self - representa tion: 190 (1994). Notwithstanding this presumption, there is no requirem ent that a Brewer v. Williams, 4 p. 3 30 U.S. 387, 404 (1977); State v. Davis, 139 N.H. 185, Cou rts should “indulge in every reasonable presumption against waiver.”

(quotation omitted); see Sweeney, 151 N.H. at 670. represent himself must be clearly and unequivocally asserted.” Id. at 8 p. 3 36 - 37 appellate courts, including this court, have held that “a defendant’s election to “because a waiver of the right to counsel should not be lightly inferred,” 2009) (quotation and emphasis omitted). To address this dilemma, and the [trial] court rules.” United States v. Miles, 572 F.3d 832, 836 (10th Ci r. representation, he has a potential ground for appellate reversal no matter how criminal proceeding makes an equivocal demand on the question of self the rights to counsel and self - representation.” Id. at 559. “[I] f a defendant in a defendant from taking advantage of and manipulating the mutual exclusivity of 204 F. 3d 553, 558 (4th Cir. 2000) (quotation omitted). It also “prevents a musings on the benefits of self - representation.” United States v. Frazier - El, defendant from inadvertently waiving the right to counsel through “occasional must be clear and unequivocal. Id. This requirement is necessary to protect a 500, 516 (2006). To be effective, an assertion of the right to self - representation exclusive; the exercise of one right nullifies the other. State v. Ayer, 1 54 N.H. The right to counsel and the right to self - representation are mutually

124 N.H. 226, 2 p. 3 31 - 33 (1983). Constitution and rely upon federal law only to aid our analysis. State v. Ba ll, N.H. 666, 670 (2005). W e first address the defendant’s claim under the State the right to counsel and the right to self - representation. State v. Sweeney, 151 Amendment to the United States Constitution guarantee a criminal defendant Both Part I, Article 15 of the New Hampshire Constitution and the Sixth

inquiry. he was dissatisfied with his counsel, the trial court conducted a sufficient se.” The State counters that, after the defendant informed the trial court that inform [him] of his options nor determine whether [he] wished to proceed pro The defendant first argues that the trial court erred when it “did not

possession of a dangerous weapon. This appeal followed. degree murder, two counts of second degree as sa ult and being a felon in Following an eight - day jury trial, the defendant was convicted of second

Ct. R. p. 4 47. compensation as indigent defense counsel. See RSA 604 - A: p. 3 3, :4 (2001); Sup. 4

for trial. this charge, yet he refuses to investigate these facts and present it the case that possibly tampered with evidence and helped fabricate Last, but not least, there is possible that there ’ s people on

trial and he ’ s continually trying to get me to take the State ’ s offer. about what I want to do with my case and that I want to take it to which I don ’ t want to whatsoever. I ’ ve actually voiced my opinion trying to get me to -- persuade me into taking th e State ’ s plea, Also, he ignores most of my requests and he actually is

c oncluded: State; and ( p. 4 4) refusal to call a particular witness at trial. The defendant expert; (3) attem pt s to persuade the defendant to accept a plea offered by the the defendant with “my full discovery”; (2) failure to request a second forensic r epresentation had been deficient. These included his: (1) delay in providing The defendant then described the areas in which he believed that his counsel’s

THE COURT: Sure. Any way you want to tell me.

you if that ’ s possible. - - I ’ ve made a list of things that he hasn ’ t done that I could read to THE DEFENDANT: I have a couple -- I have a list of things that I ’ ve

you ’ re entitled to a new counsel. THE COURT: Mr. Martin, tell me in your own words why you thin k

The colloquy between the defendant and the court began as follows:

defendant’s request. conclude that the court obtained sufficient clarity of the purpose of the transcript of the colloquy conducted by the trial court with the defendant, we judicial inquiry. See Sweeney, 151 N.H. at 670. After having reviewed the defendant’s request constituted a triggering statement that required further inquiry by the court.” Accordingly, w e will assume without deciding that the withdraw “constituted a ‘triggering statement,’ and therefore necessitated an The S tate does not contest that the defendant’s request that Garrity

because the State prevails under the more exacting de novo standard. State v. Towle, 162 N.H. 799, 803 (2011). Nor do we need to do so in this c ase, defendant’s request for self - representation was clear and unequivocal. See deferential or de novo standard when reviewing the issue of whether a We have not yet had occasion to decide wh ether we should apply a

1999)). 1 p. 5 51 N.H. at 670 (quoting United States v. Proc tor, 166 F.3d 396, p. 4 403 (1st Cir. 5

dissatisfaction with Garrity. He argues, however, that his concluding question T he defendant concedes that the trial court allowed him to explain his

pursued, diligently pursued, so motion to withdraw denied. counsels have put into this, to think it hasn ’ t been compet ently At this stage, where I ’ ve seen the work that your counsel --

particularly a week from trial. may come to your defense, but I don ’ t take continuances, has investigated, that he will pursue any legitimate witnesses that based upon what I just heard. I also heard that Attorney Garrity THE COURT: I ’ m not going to replace counsel on the eve of trial

Garrity is what you ’ re telling me, sir? THE DEFENDANT: So I have to -- I have to go to trial with Paul

THE COURT: Okay.

sir. THE DEFENDANT: Yeah, I understand the evidence against me,

to be. You can ’ t change the facts. head that maybe the facts aren ’ t as strong as you would like them that ’ s the issue. I think he ’ s trying to get to you -- get into your he goes to trial, he ’ s going to mount a strong defense. I don ’ t think THE COURT: I know Attorney Garrity well enough to know that if

The colloquy ended with the following exchange:

defeated and telling me there’s no possible way I can win, your Honor?” to go to trial. How can I -- how do I go to trial with someone who is already court that his counsel had advised him that “we can’t win this case and I want things, please,” t he court allowed him to continue. The defendant told the When the defendant asked whether he “could j ust say a couple more

assistance of counsel, so we ’ re going forward. Motion denied. draw me to the conclusion that there hasn ’ t been effective trial and I haven ’ t heard anything that meets the level that would Yeah, motion for new counsel is denied. We ’ re on the eve of

After hearing from defense counsel, t he trial court ruled:

from my case for ineffective counsel. and he has not done that. So I would appreciate if he was removed my life and I deserve to be represented zealously in every aspect Last, but not least, Your Honor, as you know I ’ m fighting for p. 6 6

make s a sufficiently clear request to indicate an intention to switch p. 6 670, we stated that further judicial inquiry was necessary “[o]nce the defendant a talismanic formula in order to invoke the right to self - representation, id. at proceed pro se. Although we noted in Sweeney that a defendant need not recite defendant said nothing t o the court that would suggest that he wished to D espite being given several opportunities throughout the colloquy, t he counsel on the eve of trial based upon what I just heard.” (Emphasis added.) what you’re telling me, sir ?” T he court responded, “I’m not going to replace colloquy that the defendant asked, “I have to go to trial with Paul Garrity is defendant take issue with that reference. It was at the end of th e lengthy request that Garrity withdraw as a motion for new counsel. Never did the hearing the trial court consistently and repeatedly referred to the defendant’s “motion for new counsel is denied.” (Emphasis added.) Throughout the zealously in every aspect.” (Emphasis added.) In response, the court ruled, defendant concluded: “I’m fightin g for my life and I deserve to be represented added.) After describing the alleged deficiencies in Garrity’s representation, the in your own words why you think you’re entitled to a new counsel.” (Emphasis as his counsel. The court began the exchange by asking: “Mr. Martin, tell me extensive colloquy after the defendant made his request that Garrity withdraw inquiry so broadly. H ere, in contrast to Sweeney, the trial court conducted an “asked the court what options were available to him.” We do not view his The defendant describes his final question to the trial court as one that

error.” Id. at p. 6 672. inquiry, viol ated his State constitutional rights and constituted reversible trial court’s summary response to the defendant’s question, without further verge of starting the jury trial, sir.” Id. at 6 69. On appeal, w e held that “the lawyer?” Id. T he trial court responded, “At this point in time, no. We’re on the represented by counsel, Sweeney asked, “Well, sir, do I have the right to fire my the challenge that he wished to make or remaining silent because he was attention to him.” Id. at 669. When faced with the choice of either advancing then, as long as you ’ re represented by him, Mr. Sweeney, then you have to pay counsel had refused to make the argument. Id. The court then stated: “Well, any arguments for you that have to be made,” the defendant reported that his trial exhibit. Id. When the trial co urt advised him that his counsel “will make defendant persevered, attempting to address the authenticity of a proposed him that he was “represented by very, very competent counsel.” Id. Th e allowed,” id., the defendant again attempted to speak with the judge, who told Sweeney, 151 N.H. at 668. After the trial judge advised him that it was “not judge “privately” during a pretrial hearing held on the first day of trial. In Sweeney, the defendant asked whether he could speak to the trial

disagree, as the facts in Sweene y are distinguishable. was required to clarify the ambiguity. See Sweeney, 151 N.H. at p. 6 668 - p. 7 7 1. We ambiguity that was present in Sweeney,” a nd that, therefore, the trial court as to whether he “ha[d] to go to trial with Paul Garrity” “c reated the same 7

appeared as retained counsel at the February 21 hearing. capacity as retained counsel. We will assume without deciding that Garrity defendant, in contrast, argues that Garrity appeared at the hearing in his withdraw, Garrity was serving as appointed rather than retained counsel. The The State contends that, at the time of the hearing on Garrity’s motion to

U. S. at 624. represented by attorneys appointed by the court s.” Caplin & Drysdale, 491 lawyers have no cognizable complaint so long as they are adequately 10 p. 7 7 (1st Cir. 2002), “those who do not have the means to hire their own to replace retained counsel, see, e.g., United States v. Woodard, 291 F.3d 95, Although a defendant does not generally require the permission of a trial court This dichotomy also exists in regard to the discharge of counsel.

491 U.S. 61 p. 7 7, 624 (1989). attorney of their choice.” See Caplin & Drysdale, Chartered v. United States, constitutional right to effective assistance of counsel, but not a right to an in his brief, “[d]efendants represented by appointed counsel enjoy a Lopez, 548 U.S. 140, 144 (2006). In contrast, a s the defendant acknowledges generally have the right to counsel of their choice. United States v. Gonzalez - D efendant s facing criminal charges who do not require appointed counsel erred by denying his motion without asking how he wished to proceed. withdraw as a “motion to fire retained counsel,” and argues that the court Next, t he defendant characterizes his request that Garrity file a motion to

indulge in every reasonable presumption against waiver of right to counsel). se. See Brewer v. Williams, 430 U.S. at 404 (observ ing that courts must the trial court was required to sua sponte advise him of his right to proceed pro representational gears” by waiv ing his right to counsel, we decline to hold that absence of any indication from the defendant that he wished to “switch necessarily waives his right to counsel. Sweeney, 151 N.H. at 6 p. 7 7 0. In the Sweeney, w hen a defendant invokes his right to self - representation, he Com. v. Myers, 748 N.E. 2d 471, 476 (Mass. App. Ct. 2001). As we observed in indicator that the judge is in fact recommending that he exercise the right.” defendant will treat advice regarding the existence of the right as a subtle by the defendant; i.e., to waive his right to counsel. The danger is “that a result if a trial court were to suggest an approach not previo usly contemplated pro se.” Id. at 671. In doing so, we implicitly recognized the danger that might hold that a trial judge must explicitly inform a defendant of his right to proceed Notably, in Sweeney, w e limited our holding, explaining that “w e do not

purpose of the defendant’s request. See id. Therefore, we conclude that the trial court achieved sufficient clarity of the indicated that he sought to “switch representational gears” and proceed pro se. defendant clearly indicated that he wanted to fire Garrity, nothing that he said representational gears.” Id. at 6 p. 7 71 (quotations omitted). Here, while the p. 8 8

been able to adequately prepare for trial. the public defender, if appointed to represent the defendant, would not have later. Given these facts, th e trial court could have reasonably concluded that which included several other serious charges, was scheduled to begin six days defendant for approximately 21 months, and the second degree murder trial, time of the February 21, 2017 hearing, Garrity had been representing the replacement of counsel was not a viable al ternative to a delay in trial. At the are not persuaded that the trial court erred when it determined that familiarity with his case, and their ability to try the case on short notice,” we inquired into the availability of [the defendant’s original] public defenders, their Although the defendant contends that the trial court “should have

standard of wh at the defendant perceives.” (quotation omitted)). substitution of counsel cannot be determined solely according to the sub jective United States v. Allen, 7 p. 8 89 F.2d 90, 9 3 (1st Cir. 1986) (“Good cause for and to appoint new counsel is sustainable. See N.H. R. Crim. P. 5(h); c f. discretionary ruling that there was no good cause to allow Garrit y to withdraw done. Given the record before us, we conclude that the trial court’s the trial preparation that had been completed and that which remained to be conference on February 15, dur ing which counsel for both parties addressed We note that, prior to this colloquy, the trial court had held a pretrial

motion to withdraw. defendant’s perception of deficiencies in Garrity’s performance and denied the him to consider the State’s pl ea offer. The trial court was not persuaded by the concern about Garrity’s preparation for trial and Garrity’s attempt to persuade considered them, along with Garrity’s responses. The defendant expressed explain the reasons for his dissatisfaction with Garrity’s representation, and the court to appoint new counsel. The trial court allowed the defendant to that good cause existed as of February 21 to allow Garrity to withdraw and for Here, the case h ad been assigned for trial. The record does not establish

rule applies whether counsel is appointed or retained. shown, and on such terms as the court may order.” N.H. R. Crim. P. 5(h). This for trial or hearing, except upon motion granted by the court for good cause the withdrawal of counsel in a criminal case “after the case has been assigned delay.” Id. Accordingly, o ur rules of criminal procedure specifically prohibit new attorney on the eve of trial should not become a vehicle for achieving ellipsis omitted). “Judges must be vigilant that requests for appointment of a United States v. Llanes, 374 F.2d 712, 71 7 (2d Cir. 1 p. 9 967) (quotation and procedure in the courts or to interfere with the fair administration of justice.” “[T]he r ight to counsel cannot be manipulated so as to obstruct the orderly counsel as a dilatory tact i c.” State v. Gonzalez, 170 N.H. 39 p. 8 8, 405 (2017). the tri a l co u rt dete rmines that a defendant has asserted his right to dismiss justice may outweigh a defendant’s right to chosen counsel when, for example, We have observed that “the ethical, fair, and orderly admi n istration of 9

you should consider the following: did the witness have the In your appraising the identification testimony of a witness,

identification la ter. the crime at the time of the crime, and to make a reliable opportunity the witness had to observe the person who committed The value of identification testimony depends on the

the defendant not guilty. defendant was the person who committed the crime, you must find If you ’ re not convinced beyond a reasonable doubt that the

before you may convict him. reasonable doubt of the accuracy of identification of the defendant However, you, the jury, must be satisfied beyond a

his or her identification. essential that a witness be free from doubt as to the correctness of burden of proving identity beyond a reasonable doubt. It is not defendant as the perpetrator of the crime. The State has the In this c ase, one of the issues is the identification of the

jury: The trial court provided the following identification instructions to the

ruling was clearly untenable or unreasonable to the prejudice of his case. Id. decision is not sustainable, the defendant must demonstrate that the court’s exercise of discretion i s sustainable. Id. To establish that the trial c ourt’s We review the trial court’s decision on this issue to determine whether its sound discretion of the trial court. State v. Rice, 16 p. 9 9 N.H. 783, 790 (2017). necessary, and the scope and wording of jury ins tructions, are within the cover the issues of law in the case. Id. Whether a particular jury instruction is each element of the offense and reverse only if the instructions did not fairly determine whether the jury ins tructions adequately and accurately explain the evidence in the case. State v. West, 167 N.H. 465, 468 (2015). We entirety, as a reasonable juror would have understood them, and in light of all evaluat e allegations of error by interpreting the disputed instructions in their intoxication when it evaluated the reliability of eyewitness testimony. We when it refused to instruct the jury that it sh ould consider evidence of because there was evidence of eyewitness intoxication, the trial court erred largely on the identification of [the defendant] by two eyewitnesses,” and Finally, t he defendant argues that, because the State’s case “hinged

replace retained counsel with appointed counsel must show good cause). States v. Mota - S antana, 3 p. 9 91 F.3d 42, 47 (1st Cir. 2004) (defendant seeking to We reach the same result under the Federal Constitution. See United p. 10 10

decision was clearly untenable or unreasonable to the prejudice of his case. conclude that the defendant ha s not d emonstrated that the trial co u rt’s Having reviewed the instructions given by the trial court in their entirety, we instruction, the court made clear to the jury that the list was non - exhaustive. a list of relevant factors. By usin g the language “such factors as” in the instructed the jury that, in assessing identification testimony, it could consider the witnesses to observe the assault in his closing ar gument. The court testimony. Defense counsel also focused on the opportunity and capacity of the capacity of each identification witness when evaluating the identification T he trial court twice instructed the jury to consider the opportunity and

as less important than the listed factors.” We disagree. conclude that the court, and thus the law, regarded the impact of intoxication from the list of factors that could be considered, “a reasonable juror could degree.” He contends that because the court omitted evidence of intoxication observation, the witness was u nder the influence of alcohol a nd, if so, to what consider when appraising identification testimony: “W hether, at the time of the following language when it instructed the jury on the factors that it could The defendant argues that th e trial court should have included the

identification, you must find the defendant not guilty. evidence, you have a reasonable doubt as to the accuracy of the identity beyond a reasonable doubt. If, after examining the I, again, empha size that the State has the burden of proving

testimony. reliable observation on the matter covering the identification whether the witness had the capacity and opportunity to make a including whether you consider the witness to be truthful; and identification witnes s in the same way as any other witness, Finally, you must consider the credibility of each

. . .. past; was the identification made by the witness after the crime; witness had an occasion to see or know the person identified in the of any prior description of the alleged perpetrator; whether. . . the witness ’ s degree of attention to the person observed; the accuracy the witness and the person observed; the lighting conditions; the length of time available for the observation; the distance between In determining this, you may cons ider such factors as the

question at the time of the crime? capacity and adequate opportunity to observe the person in p. 11 11

concurred. LYNN, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,

deemed waived. State v. Fiske, 170 N.H. 279, 292 (2017). Issues raised in the defendant’s notice of appeal, but not briefed are