2018-0292, The State of New Hampshire v. Henry Carnevale

motion for a ne w trial based upon ineffective assistance of counsel. We affirm. “deadly weapon.” He also argues that the trial court erred by denying his evidence that he acted “recklessly” and that his automobile constituted a notwithstanding the verdict (JNOV) on the basis that there was insufficient argues that the trial court erred by denying his motio n s for judgment an accident, see RSA 264:25 (2014) (amended 2017, 2018). On appeal, he I, II (2016), with a deadly weapon, see RSA 625:11, V (2016), and conduct after jury in Superior Court (Tucker, J.) for felony reckless conduct, see RSA 631:3, HICKS, J. The defendant, Henry Carnevale, appeals his conviction by a

Shklar on the brief and orally), for the defendant. Elliot t Jasper Auten Shklar & Ranson, LLP, of Newport (Michael C.

assistant attorney g eneral, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior

No. 2018 - 0292 Sullivan

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. us. 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, Concor d, 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. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

unjustifiable risk that serious bodily injury would result from his conduct. had to show that he was aware of, but consciously disregarded, a substantial, To prove that the defendant acted with a “reckless” mens rea, the State

A. “Reckless” Mens Rea

that he used his SUV as a deadly weapon. evidence was insufficient to prove that he acted with a “reckless” mens rea and RSA 631:3, I, II; see RSA 6 p. 2 25:11, V. On appeal, the defendant asserts that the and (2) by using his SUV in such a fashion, it constituted a deadly weapon. operating his SUV erratically and aggressive ly cutting off the victim’s vehicle; placed or may have placed another person in danger of serious bodi ly injury by indictment, the State had to prove: (1) he recklessly engaged in conduct that To convict the defendant of felony reckless conduct as charged in the

drawn, the motion should be denied. Id. at 463. adduced at trial is conflicting, or if several reasonable inferences may be evidence or inquire into the credibility of the witnesses, and if the evidence State v. Spinale, 156 N.H. 456, 464 ( p. 2 2007). The trial court cannot weigh the reasonable inferences theref rom in the light most favorable to the State. See find guilt beyond a reasonable doubt, considering all the evidence and all JNOV, we will uphold the jury’s verdict unless no rational trier of fact could Provider Power, LLC, 170 N.H. 569, 576 (2018). On reviewing a ruling for a question of law, which we review de novo. Halifax - American Energy Co. v. JNOV based upon the sufficiency of the evidence. A motion for JNOV presents The defendant argues that the trial court erred in denying his motion for

I. S ufficiency of the Evidence

played multiple times to the jury throughout the trial. events above. Video clips from both cameras were admitted as full exhibits and Video c ameras located in the front and back of the VW captured the

police identified his vehicle’s l icense plate and arrested him later that day. hospital. After the accident, t he defendant drove away from the scene, but highway. T he victim and his son were transported by ambulance to the After the crash, there were VW parts, fluids, and tire marks all over the guar drail located above an underpass at approximately 65 - 70 miles per hour. heavily and veer right, lost control of his car, and immediately crashed into a the rear of the SUV to hit the front of the VW. The victim was forced to brak e the rear of the VW. The defendant abruptly cut back into t he left lane, causing made a hand gesture and moved into the right lane, passing extremely close to and his three - year - old son. Approaching a construction area, the defendant began tailgating a Volkswagen Jetta transporting t he victim (driver of the VW) north on Interstate 89 in Grantham in his 7, p. 3 300 - po und sport utility vehicle, The jury could have found the following facts. The defendant, driving 3

victim and his son. See Hull, 149 N.H. at 714. aggressive driving cr eated a substantial and unjustifiable risk of injury to the could have found, beyond a reasonable doubt, that the defendant’s erratic and procedure for overtaking a vehicle on the left). Likewise, a rational trier of fact o fficer with his side mirror); see also RSA 265:18 (2014) (detailing the drove so close to a police officer conducting a traffic stop that he hit the police id. at 707, 714 (finding sufficient evidence for reckless conduct when defendant not have returned to the left lane until safely clear of the victim ’ s vehicle. See deviation from that of a law - abiding citizen because a law - abiding citizen would beyond a reasonable doubt, that the defendant’s conduct constituted a gross in the light most favorable to the State, a rational trier of fact could have found, From the evidence and all reasonable inferences to be drawn therefrom

per hour. brake hard, lose control of his car, a nd crash into a guardrail at 65 - 70 miles vehicle in the process, and that the defendant’s conduct caused the victim to then abruptly cut in front of the victi m ’ s vehicle, hitting the front of the victim ’ s area, that the defendant suddenly changed lanes so as to pass the victim and passing him in the right lane, that both cars were approaching a construction victim ’ s Volkswagen Jetta, that the defendant tail gated the victim before defendant’s SUV — weighing 7, p. 3 300 pounds — was much larger than the “reckless” mens rea. A rational trier of fact could have found that the have found, beyond a reasonable doubt, tha t the defendant acted with a the light most favorable to the State, we hold that a rational trier of fact could Viewing all of the evidence and the reasonable inferences therefrom in

stopping. See id. before an d after the accident, including the fact that he left the scene without circumstances. Id. The jury could have considered the defendant’s conduct a subjective inquiry, it may be proved by any surrounding facts or cut off the victim’s car. Id. Because determining the defendant’s awareness is person would not have driven so erratically or aggressiv ely and would not have risk was a gross deviation from that of a law - abiding person,” because that See id. “The n the jury had to find that the defendant’s conduct in creating that caused a substantial and unjustifiable r isk of injury to the victim and his s on. aggressive ly by cutting off the victim’s car with his SUV and that his conduct in this case, the jury had to find that the defendant acted erratic ally and the defendant anticipa ted the precise risk or injury that resulted.” Id. Rather, resulting from the defendant’s conduct.” Id. “Nor does it depend upon whether “This is a subject ive inquiry” that “does not depend up on the actual harm deviation from the regard that would be given by a law - abiding citizen.” Id. that the defendant’s disregard for the risk of injury to another was a gross State v. Hull, 1 p. 4 49 N.H. 706, 71 p. 3 3 (2003). “In addition, the State had to show 4

used, inten ded to be used, or threatened to be used, is known to be capable of as “any firearm, knife or other substance or thing which, in the manner it is his vehicle as a deadly weapon. A deadly weap on is defined in RSA 625:11, V The defendant next argues that the State failed to show that he operated

B. Deadly Weapon

scene of an accident. the defendant acted with “reckless” intent whether or not he knew he left the an accident is not the issue on appeal. A rational trier of fact could find that driveway and n ot hide it from view. Whether the defendant knew that he fled unlikely that someone who knew he fled an accident would park his car in his evidence for the jury to consider. Lastly, the defendant argues that it is because the defendant’s statements at the time of arrest were not put forth as the accident when he was arrested. This argument is similarly u navailing the State failed to show awareness because he denied having any knowledge of the reasons set forth above, we disagree. Second, the defendant argues that unforeseeable that the victim would lose c ontrol of his vehicle and crash. For drawn from the evidence, we disagree. First, the defendant argues that it was the extent that the defendant argues that other inferences could have been reasonable conclu sions based upon the evidence have been excluded.” Id. To consistent with innocence has been excluded, but, rather, whether all 3 p. 4 45 (2015). “The proper analysis is not whether every possible conclusion 350, 361 (2013), modified on other grounds by State v. King, 168 N.H. 340, exclude all reasonable conclusions except guilt.” State v. Germain, 165 N.H. to prevail on appeal, “the defendant must establish that the evidence does not regarding the defendant’s “reckless” intent was solely circumstantial, in order defendant acted with “reckless” intent. Because the evidence adduced at trial rational trier of fact could have found, beyond a reasonable doubt, that the drawn therefrom, viewed in the light most favorable to the State, we hold that a Based upon all of the a bove evidence and the reasonable inferences to be

guilt.”). offense flight is probative on the issue of the defendant’s consciousness of Torrence, 13 p. 4 4 N.H 24, 27 (1991) (“It is beyond dispute that evidence of post evidence demonstrated the defendant’s consciousness of guilt. See State v. the defendant left the scene. A rational trier of fact could have found that such disregarded, a substantial and unjustifiable risk. Finally, after the accident, his SUV to hit the VW, demonstrated that he was aware of, and consciously trier of fact could have found that the defendant’s abrupt maneuvers, causing causing the rear of the SUV to hit the front of the victim ’ s vehicle. A rational the rear of the victim ’ s ve hicle, and then abruptly cut back into the left lane, The videos show the defendant move into the right lane, pass extremely close to disregarded, the substantial and unjustifiable risk that his conduct created. reasonable doubt, that the defendant was aware of, and consciously Additionally, a rational trier of fact could have found, beyond a p. 5 5

accident reconstruction expert to support the defense’s theory of pure accident. Specifically, he argues that trial counsel should have retained a second motion for a new trial based upon ineffective assistance of counsel. The defendant next argues that the trial court erred when it denied his

II. Ineffective Assistance of Counsel

court, we decline to address it. Aubert v. Aubert, 129 N.H. 422, 428 (1987). Because this argument was not briefed to this court, or argued before the trial the legislature to be regarded as deadly weapons under RSA 62 p. 5 5:11, V. raised, for th e first time, an argument that vehicles were not contemplated by was insufficient to support a conviction). During oral argument, the defendant appeal because, in the trial court, the defendant argued only that the evidence (holding that the defendant waived a statutory interpretation argument on arguments are waive d. See State v. Dodds, 159 N.H. 239, 243 - 44 (2009) insuffic ient to support his convictions; therefore, his statutory interpretation the trial court, however, the defendant asserted only that the evidence was his conduct. These arguments concern i nterpretations of RSA 625:11, V. I n to show that death or serious bodily injury was more than likely to result f rom death or serious bodily injury is “more than likely to occur” and the State failed the defendant argues that RSA 625:11, V includes only those actions where to cause death or serious bodily injury and the State fai led to do so. Second, that RSA 625:11, V requires the State prove that he intended to use his vehicle as a deadly weapon are not preserved for appeal. First, the defendant argues The defendant’s additional arg uments concerning the use of his vehicle

weapon. See Hull, 149 N.H. at 71 p. 5 5. of fact to find, beyond a reasonable doubt, that he used his vehicle as a deadly reasonable inferences to be drawn therefrom, was sufficient for a rational trier evidence, viewed in the light most favorable to the State, together with the RSA 625:11, V. Contrary to the defendant’s assertions, the totality of the use that is “known to be capable of producing death or serious bodily injury.” a nd crash into a guardrail at 65 - 70 miles per hour, constituted a manner of back end of a 7,300 - pound SUV, causing the victim to brake hard, lose control, lanes, cutting off the victim s, and hitting the front of the victim ’s car with the beyond a reasonable doubt, that tailgating the victim s, abruptly changing light most favorable to the State, a rational trier of fact could have found, From the evidence and all reasonable inferences therefrom, viewed in the

required that an object actually cause death or injury.” Id. object be intrinsically capable of causing death or injury.” Id. “Nor have we the totality of the circumstances. Id. at 71 p. 5 5. “We have never required that an the vehicle a deadly weapon is a question of fact for the jury to decide based on at 714. Whether the defendant ope rated his vehicle in a manner that rendered become deadly weapons when they are put to assaultive uses.” Hull, 149 N.H. producing death or serious bodily injury.” “Many innocuous everyday objects ge of reasonable professional assistance;

sound trial strategy. the circumstances, the challenged action might be considered that is, the defendant must overcome the presumption that, under falls within the wide ran court must indulge a strong presumption that counsel’s conduct Because of the difficulties inherent in making the evaluation, a and to evaluate the conduct from counsel’s perspective at the time. reconstruct the circumstances of counsel’s challenged conduct, effort be made to eliminate the distorting effects of hindsight, to A fair assessment of attorney performance requires that every

deferential.” Id. at p. 6 689. unsucces sful, “[j]udicial scrutiny of counsel’s performance must be highly Because, with hindsight, it can be easy to second - guess decisions that prove assistance was reasonable considering all the circumstances.” Id. at 688. Whether performance was deficient depends on “whether counsel’s

prejudice to the defendant. See Strickland, 4 p. 6 66 U.S. at 687. reasonable under all of the circumstances, we need not address the question of (2009) (citation omitted). Because we hold that trial counsel’s performance was of whether eac h prong is met de novo.” State v. Whittaker, 158 N. H. 762, 768 or are erroneous as a matter of law, and we review the ultimate determinati on the trial court’s factual findings unless they are not supported by the evidence are mixed questions of law and fact. Id. at 698. “Therefore, we will not disturb Both the performance and prejudice prongs of an ineffectiveness inquiry

the outcome.” Id. at p. 6 694. A reasonable probability is a probability sufficient to undermine confidence in unpr ofessional errors, the result of the proceeding would have been different. must show that there is a reasonable probability that, but for counsel’s reasonableness.” Id. at 688. To satisfy the prejudice prong, “[t]he defendant that counsel’s representation fell below an objective standard of 668, 687 (1984). To satisfy the performance prong, “the defendant must show the outcome of his case (prejudice prong). Strickland v. Washington, 466 U.S. (performance prong) and, second, that such deficient performance prejudiced he must show, first, that counsel’s representation was constitutionally deficient For the defendant to prevail on an ineffective assistance of counsel claim,

State Constitution on appeal. constitutional claim because he has failed to ci te a specific provision of the p. 6 628, 632 (1986). We confine our analysis to the defendant’s federal invoke a provision of the State Constitution.” State v. Dellorfano, 128 N.H. State constitution al issue below” and “the defendant’s brief must specifically In order to trigger a State constitutional analysis, “the defendant must raise the p. 7 7

simply was different from the ‘blame the victim’ premise constructed post - trial.” thing is that trial counsel had a theory of defense based on sound reasons that that, “[w]hether or not the theory [of pure accident] is plausible, the important jurors what they can see for themselves.” The trial court further emphasized factor that makes it seemingly superfluous for someone else to explain to the lane. The tr ial court found, however, that “the video evidence introduces a believed the victim overreacted when the defendant returned to the passing expert who placed fault for the accident with the victim, opining that he the defendant, with new counsel, retained a different accident reconstruction not be of assistance because he could not offer a favorable opinio n. Post - trial, expert. After reviewing the video, the expert advis ed trial counsel that he could further his investigation, trial counsel retained an accident reconstruction was distracted, but the records showed no activity at the time of the crash. To obtained the victim’s phone records in order to investigate whether the victim To be sure that there was no contribution by the victim, defense counsel not believe that the video showed any contribution by the victim to the crash. victim” defense because he knew that the jury would see the video and he did of the “reckless” intent needed to convict. Counsel chose to avoid a “blame the strategic deci sion to defend the case with a theory of pure accident, thus devoid The trial court made the following findings. Defense counsel made a

690 - 91. judgments support the limitations on investigation.” Strickland, 466 U.S. at investigation are reasonable precisely to the extent that reasonable professional virtually unchallengeable; and strategic choices made after less than comple te thorough investigation of law and facts relevant to plausible options are decisions a substantial amount of deference: “strategic choices made after Id. (quoting Dugas, 42 p. 8 8 F.3d at 329). Lastl y, we give counsel’s strategic the evidence may be so weak that it can be demolished on cross - examination. ’” is ‘no need to question the validity of the government’s proposed evidence or attorney may have no du ty to consult with an expert, for instance, when there putting on expert witnesses.” Id. (citing Dugas, 428 F.3d at 329). “A defense is not required, in every case, to consult experts even if the State will be 428 F.3d 31 p. 7 7, 3 28 - 2 9 (1st Cir. 2005)). Furthermore, “[a] defendant’s attorney witnesses by the state.’” Whittaker, 158 N.H. at 76 9 (quoting Dugas v. Coplan, an expert as part of pretrial investigation in a case involving the use of expert ‘recognize that reasonably diligent counsel are not always required to consult reasonableness of trial counsel’s decision not to consult with an expert, we (quoting Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir. 2006). “In assessing the with [a second] accident reconstruction expert.” Whittaker, 158 N.H. at 768 - 69 defendant ‘has to show that no competent lawyer’ would have failed t o consult establish that his trial attorney’s performance fell below this standard, the simply reasonableness under prevailing professional norms.” Id. at 688. “To Id. (quotation omitted). “T he proper measure of attorney perfor mance remains 8

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

(2014). We therefore decline to address it. preserved this argument for our review.” State v. Tsopas, 166 N.H. 52 p. 8 8, 531 stand, “he has not provide d us with a record that demonstrates that he reconstruction expert, trial counsel should have put the defendant on the To the extent the defendant argues that, without an accident

constitutionally deficient performance. retain a second accident reconstruction expert did not constitute these circumstances, we agree with the trial court that trial counsel’s failure to that inattentiveness by the victim did not contribute to the accident. Und er investigation, trial counsel reviewed the victim’s phone records to make sure would not be able to provide a favorable opinion. Finally, as part of his including the video, t he expert said he could not be of assistance because he and retained an accident reconstruction expert. After reviewing the case, upon a reasonable investigation. Trial counsel reviewed the video of the events Here, trial counsel’s decision not to retain a second expert was based

who will testify in a particular way.”). reasonable investigation. Counsel is not required to ‘shop’ for a psychiatrist 1447 n.17 (11th Cir. 19 p. 8 87) (“We emphasize that the duty is only to conduct a someone who will take the other side.”); cf. Elledge v. Dugger, 823 F.2d 1439, accepting that person’s opinion. There is no duty to continue to search for hired a competent, experienced expert, a defense lawyer cannot be criticized for an adverse opinion.”); In re Williams, 101 A.3d 151, 156 (Vt. 2014) (“Having not require counsel to pursue a second expert after a qualified expert has given guide our judgment as to whether counsel’s performance was reasonable do S tone v. State, 798 S.E.2d 561, 581 (S.C. 2017) (“The ‘prevailing norms’ that continue to look for favorable experts after receiving an unfavorable opinion); (8th Cir. 1995) (noting that the court has never suggested that counsel must unreasonable application of Strickland.”); Sidebottom v. Delo, 46 F.3d 744, 753 failing to secure additional expert testimony... is n ot an objectively determination that Wes brook’s counsel did not render ineffective assistance by Wes brook v. Thaler, 585 F.3d 245, 253 (5th Cir. 2009) (“The state court’s because the second expert had the potential to do more harm than good); lawyer was not incompetent for failing to call a second expert, especially Conover, 881 F.3d 454, 463 (6th Cir. 2018) (holding that the defendant’s second expert opinion is not deficient performance. Se e, e.g., Caudill v. have addressed the question have overwhelmingly held that failing to obtain a While this is an issue of fi rst impression in New Hampshire, jurisdictions that because counsel failed to retain a second accident reconstruction expert. The defendant argues that his trial counsel was constitutionally deficient