2018-0606 and 2020-0338, State of New Hampshire v. Jerry Newton

parents and a financial planner. He also appeals the trial court’s denial of his when, at trial, it excluded out - of - court statements made by the defendant’s jury trial in Superior Court (Brown, J.). He argu es that the trial court erred adult in violation of RSA 631:9, I(a) (2016) and RSA 631:10 (2016) following a conviction s on three counts of exploitation of an elderly, disabled, or impaired HANTZ MARCONI, J. The defendant, Jerry Newton, appeals his

C. Do ty on the brief, and Theodore M. Lothstein orally), for the defendant. Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein and Kaylee

general, on the brief and orally), for the State. Office of the Attorney General (Bryan J. Townsend, II, assistant attorney

2020 - 0338 No s. 2018 - 0606 Hillsborough - northern judicial district

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

text messages to impeach the wife’s testimony. phrase “that whore” to refer to the victim. The State also used several other the state or that whore.” The record indicates that trial counsel understood the them’ in a short time, then pay 1 p. 2 20,000 in taxes. It’s better than giving it to “I did the math in my head and we could spend 180,000 appropriately ‘for the State introduce d a text message sent to the defendant by his wife that read message exchange between the defendant and his wife. On cross - examination, wi tness and, through her testimony, introduce d a fairly exculpatory text the defendant’s case - in - chief, trial counsel called the defendant’s wife as a messages would be helpful and that “[t] he good outweigh[ed] the bad.” During disclosed to the State during discovery. Trial counsel believed that the text printed text messages between himself and his wife that trial counsel later Prior to trial, the defendant provided his trial counsel with 350 pages of

Honeywell Checks). count related to the defendant’s use of two checks made out to t he victim (the related to the defendant’s use of the victim’s money and assets, and the last instrument esta blishing the fiduciary obligation.” Three of the four counts someone other than [the victim], not being authorized to do so by the obligation” by using the victim’s money or personal property “for the benefit of financial resources of the victim, an elderly adult, “in breach of a fiduciary or advantage” either temporarily or permanently took the personal p roperty or September p. 2 2015 and August 2016 the defendant “recklessly, for his own profit 202 1) and RSA 631:10. Specifically, the indictments alleged that between elderly, disabled, or impaired adult in violation of RSA 631:9 (2016 & Supp. The defendant was indicted on four counts of financial exploitation of an Trust account; and (3) a personal checking account (FNBC Account). the victim and her husband: (1) an individual retirement account (IRA); (2) the sums of money. The investigation focused on three main accounts belonging to investigation into allegations that the defendant exploited the victim for large By July 2017, the New Hampshire Attorney General had launched an

The victim’s husband d ied on December p. 2 21, 2015. be used only for the benefit of the victim and her husband until their death. the trustee and specified that the assets and money held by the Trust were to 2014 as a result of their failing health. The Trust created a fiduciary duty in the victim (the defendant’s mother) and her husband (the defendant’s father) in t rustee of the Newton Family Trust and retained power of attorney over both The jury could have found the following facts. The defendant became

a hearing to review and reconsider the sentence. We affirm. counsel. The State cross - appeals, arguing that the trial court erred by ordering post - conviction motion for a new trial based upon ineffective assistance of p. 3 3

with the defendant’s direct appeal. reconsider the sentence. We accepted those appeals and consolidated them filed a cross - appeal from the decision to hold a hearing to review and discretion ary appeal from the denial of his motion for a new trial, and the State proceedings pending appellate review. In response, the defendant filed a a hearing to review and reconsider the sentence and then stayed further messages affected the sentencing decision. Accordingly, the trial court ordered concluded that trial counsel’s deficient performance with r espect to the text upon ineffective assistance of counsel. The trial court denied that motion, but the appeal to allow him to file in the trial court a motion for a new trial based the resulting sentence. Subsequently, at t he defendant’s request, we stayed The defendant filed a timely mandatory appeal from his convictions and

C hecks. financial exploitation of an elderly adult relat ed to the use of the Honeywell other than the victim. The jury acquitted the defendant on one count of the victim was the beneficiary, and used the funds for the benefit of someone than the victim; and ( p. 3 3) took approximately $227,460.94 from the IRA, of which $22,168.14 from the sale of the victim’s home for the benefit of someone other to pay various bills for the benefit of someone other than the victim; (2) took exploitation, find ing the defendant: (1) used $73, 759.83 belonging to the victim The jury convicted the defendant on the three counts of financial

it related to the Honeywell Checks. that the defendant was being untruthful during the investigation, especially as On cross - examination, trial counsel elicited testimony from O’Brien opining that he was unable to discover any documents to corroborate this assertion. beneficiary of the IRA months prior to his death. However, O’Brien testified investigation. The defendant told O’Brien that his father had changed the O’Brien testified that he interviewed the defendant as part of the

money into both personal and busines s bank accounts. that the defendant used the money to pay off his own debts and placed the summary also detailed where the defendant moved the money, demonstrating three accounts of funds between November 2015 and August 2016. The relevant period of time. The summary show ed that the defendant depleted all created, describing “the flow of money” fro m the three accounts during the was spent on.” Sullivan testified about the contents of a summary he had which accounts it was moved into, who moved the money, and what the money testimony, the State provided evidence of “which accounts money originated in, and reviewed the relevant financial a nd business records. Through Sullivan’s T he State called Investigators Sullivan and O’Brien, who had compiled p. 4 4

C ONST. a mends. VI, XIV. Because the standard for determining whether a both the State and Federa l Constitutions. See N.H. CONST. pt. I, art. 15; U.S. counsel. The defendant’s claim for ineffective assistance of counsel rests upon post - conviction motion for a new trial based upon ineffective assistance of We next address the defendant’s appeal of the trial court’s denial of his

not affect the verdict. Thus, any error was harmless. See id. reasonable doubt, that any error in excluding th e out - of - court statements did strength of the State’s evidence of guilt. Therefore, we conclude, beyond a the excluded evidence was cumulative and inconsequential in relation to the able to offer arguments based on that evidence. Accordingly, we conclude that defendant ultimately introduced the substance of the conversations and was consultation with his parents, he made these transactions.” Thus, the defendant] decided to change that trust, to move that trust money,” and “after “after meeting with a financial planner and [the defendant’s father], [the decisions they made together. In closing, the defendant specifically argued that conversations he had had with his father and a fina ncial planner and what defendant was allowed to testify without objection to the substance of Here, despite the trial court’s ruling, on direct examination, the

beyond a reasonable doubt. Id. verdict. Id. Either factor can be a basis suppo rting a finding of harmless error guilt. Id. We review these factors to determine whether an error affected a inconsequential in relation to the strength of the State’s evidence of evidence that wa s improperly admitted or excluded is merely cumulative or defendant’s guilt is of an overwhelming nature, quantity, or weight; or (2) the harmless beyond a reasonable doubt if: (1) the other evidence of the erroneous admission and the exclusion of evidence. Id. An error may be ___ (decided April 26, 2022) (slip. op. at 6). This standard ap plies to both the doubt that the error did not affect the verdict. State v. Racette, 175 N.H. ___, To establish harmless error, the State must prove beyond a reasonable

out - of - court statements, we agree with t he State that any error was harmless. doubt. Assuming, without deciding, that the trial court erred by excluding the addition, the State argues that any error was harmless beyond a reasonable closing that he acted at the direction of his father and a financial advisor. In defendant to testify to the effects the conversations had on him and to argue in the trial court sustainably exercise d its discretion because it allowed the defendant’s parents and a financia l planner. The State counters, arguing that discretion when it excluded certain out - of - court statements made by the defendant first argues that the trial court unsustainably exercised its We first address the defendant’s direct appeal of his conviction s. The

a new trial because his counsel provided constitutionally deficient The defendant argues that the trial court erred in denying his motion for

defective. State v. Collins, 166 N.H. 210, 212 (2014). requires a finding that counsel’s performance was not constitutionally whether each prong is met de novo. Id. A failure to establish either prong erroneous as a matter of law, and we review the ultimate determination of court’s factual findings unless they are not supported by the evidence or are mixed questions of law and fact. Id. Therefore, we will not disturb the trial Both the performance and prejudice prongs of the ineffectiveness in quiry are prejudice analysis considers the totality of the evidence presented at trial. Id. probability sufficient to undermine confidence in the trial’s outcome. Id. The of the trial would have been different. Id. at 681. A reas onable probability is a reasonable probability that, but for counsel’s unprofessional errors, the result To meet the second prong, the defendant must show that there is a

680 - 81. have engaged in the conduct of whic h he accuses his trial counsel. See id. at of reasonableness, the defendant must show that no competent lawyer would establish that his trial attorney’s performance fell below this objective standard remains sim ply reasonableness under prevailing professional norms, t o assistance. See i d. Because the proper measure of attorney performance that counsel’s conduct falls within the wide range of reasonable professional inherent difficulties in making this evaluation, there is a strong presumption the conduct from counsel’ s perspective at the time. Id. Because of the reconstru ct the circumstances of counsel’ s challenged conduct, and to ev aluate every effort be made to eliminate the distorting effects of hindsight, to highly deferential; a fair assessment of attorney performance requires that Id. As we have explained, judicial scrutiny of counsel’s performance must be circumstances of that particular case, viewed from the time of that conduct. We judge the reasonableness of counsel’s conduct based upon the fa cts and counsel’s representation fell below an object ive standard of reasonableness. Id. To meet the first prong of this test, the defendant must show that

actually prej udiced the outcome of the trial. Id. constitutionally deficient, and second, that counsel’s deficient performance defendant must demonstrate first that counsel’s representation was (2016). To prevail upon a claim of ineffective assistance of counsel, the reasonably competent assistance of counsel. State v. Cable, 168 N.H. 673, 680 Both the State and Federal Constitutions guarantee a criminal defendant

(2007); see Strickland v. Washington, 4 p. 6 66 U.S. 668 (1984). upon federal case law only fo r guidance. State v. Kepp l e, 1 p. 5 55 N.H. 267, 269 competency of counsel’s performance under the State Constitution, and rely the State and Federal Constitutions, we will examine the constitutional defendant has received ineffective assistance of counsel is the same under both 6

articulated that he believed the defendant’s wife “was all about the money” and emotional . . . and hard to have a normal . . . calm conversation with.” H e outset of the cas e. He described the defendant’s wife as “very high strung, very “practically forced her way into testifying” and intended to do so from the Here, trial counsel testified in his deposition that the defendant’s wife

follow the client’s will may not be lightly disturbed. Id. potential problems with the suggested approach, then his ultimate decision to client to present a certain defense, and if he does thoroughly explain the explicit direction of the client. Id. Accordingly, if counsel is commanded by his counsel, we must give great d eference to choices that are made under the master of the defense. Id. As a result, in evaluating strategic choices of trial reasonable effectiveness, is still only an assistant to the defendant and not the actions. Id. This is so because trial counsel, while held to a standard of determined or substantia lly influenced by the defendant’ s own statements or evidence. Id. Rather, t he reasonableness of counsel ’ s actions may be required to ignore the defendant’s re quest to allow the ad mission of such make on behalf of a defendant. Id. at 2 29. T his does not mean that counsel is object to inadmissible evidence is an aspect of trial strategy that counsel may defendant’s consent to every tactical decision. Id. The decision of whether to 228. However, that obligation does not require counsel to obtain the including questions of over arching defense strategy. Candello, 170 N.H. at ha ve a duty to consult with the ir client s regarding important decisions, In State v. Candello, 170 N.H. 220 (2017), w e observed that attorneys

would be done to his case if the defendant’s wife testified. We disagree. court erred because trial counsel did not fully inform him of the damage that prong of an ineffectiveness test. On appeal, t he defendan t argues that the trial constitutionally deficient” and that the defendant had failed to meet the first circumstances, [it] [could not] find that [trial counsel]’s performance was warnings,” insisting she testify. The trial court concluded that “[u] nder the se defendant’s wife] testify, but [the d] efendant ch ose to disregard those potential consequences and tried to discourage [him] from having [the The cour t found that trial counsel “fully informed [the d] efendant of the trial counsel’s advice that his wife’s testimony would be damaging to his case. defendant directed trial counsel to call the defendant’s wife as a witness despite called the defendant’s wife to testify at trial. The trial court found that the The defendant first argues that trial counsel was ineffective because he

A. Calling the Defendant’s Wife as a Witness

We consider each allegation in turn. defendant; and (C) disclosing a series of inculpatory text messages to the State. a witness; (B) eliciting inadmissible opinion testimony on t he credibility of the provided ineffective assistance of counsel by: (A) calling the defendant’s wife as representation to the prejudice of his case at trial. He asserts that trial counsel p. 7 7

messages had not been introduced.” We agree with the trial court. probability that the jury would have returned a not guilty verdict if the [text] defendant because he failed to demonstrate that there was “a reasonable disclosure and introduction of the text messages did not prejudice the messages did not prejudice his case at trial. The trial court found that the objective standard of r easonableness — that the introduction of the text — after having found that disclosure of the text messages fell below an Finally, t he defendant argues that the trial court erred when it concluded

C. Disclosure of the Text Messages

elicited the challenged testimony. See Cable, 168 N.H. at 681. probability that the outcome would have been different if trial counsel had not Accordingly, the defendant has not persuaded us that there is a reasonable wealth of other evidence that cast doubt upon” the defendant’s credibility. signs of deception” when interviewing the defendant, the State introduc ed “a elicited testimony from O’Brien on cross - examination that he “saw several demonstrate he was prejudiced by the challenged testimony. Although counsel Upon review of the record, we conclude that the defendant has failed to

defendant was not prejudiced. We agree with the trial court. found that even if counsel’s conduct was constitutional ly deficient, the defendant’s truthfulness during an investigatory interview. The trial court that his counsel was ineffective because he elicited O’Brien’s opinion o f the The defendant next contends that the trial court erred by failing to find

B. Investigator O’B rien’s Opinion Testimony

constitutionally deficient. See Candello, 1 p. 7 70 N.H. at 22 8 - 2 9. the defendant has failed to demonstrate that trial counsel’s performance was Cable, 168 N.H. at 680 - 81. Thus, u nder the circumstances, we conclude that the direction of the defendant, were objectively unreasona ble. See id.; see also regardless. As a result, we cannot say that trial counsel’s actions here, done at defendant’s wife to testify and that the defendant directed him to call her counsel thoroughly explained the potential consequences of calling the W e conclude that the record supports the trial court’s findings that trial

going to testify.” know you have to tell me these things but if [my wife] wants to testify, she’s counsel’s advice but directed trial counsel to call her regardless, stating, “I During that conversation, the defendant acknowledged that he understood trial the defendant a final warnin g, urging him not to call his wife as a witness. exculpatory and p rovided their rationale. He stated that, prior to trial, he gave believed that the defendant’s wife’s testimony would be more inculpatory than that, leading to trial, he counseled the defendant that he and his legal partner that she hurt the defendant’s theory of the case. Trial c ou n sel also testified p. 8 8

messages. Trial counsel determined that “[t]he good [text messages] counsel’s attention, he sought cou nsel’s advice on the usefulness of the that, although the defendant initially brought the text messages to trial messages. Emails exchanged between trial counsel and the defendant show rather than the defendant, made the strategic choice to disclose the text T he record supports the trial court’s factual finding that trial counsel,

ineffective assistance of counsel. See Cable, 16 p. 8 8 N.H. at 68 1. review de novo the ultimate question of whether the disclosure constituted unsupported by the evidence or are erroneou s as a matter of law; however, we case. We will not disturb the trial court’s factual findings unless they are result, the trial court concluded that Candello did not apply to the facts of this [the d efendant] directed [tria l] counsel to introduce the [text] messages.” As a between trial counsel and the defendant, the trial court “decline[d] to find that Based on trial counsel’s deposition testimony and an email exchange

their disclosure could not constitute deficient performance by counsel. because the defendant directed trial counsel to disclose the text messages, performance. Citing Candello, 170 N.H. at 230, t he State first argues that trial court’s ruling that the disclosure of the text messages constituted deficient We next address t he State ’s cross - appeal, which ask s us to reverse the

messages, the result of the trial would have been different. See i d. at 6 p. 8 81. there is a reasonable probabilit y that, but for the disclosure of the text defendant’s conduct, we conclude that the defendant has failed to demonstrate of the money for his own expenses. Given the other evidence relevant to the defendan t testified that he believed the money was his and that he used much accounts benefit ted the defendant, his wife, or his business. Moreover, the testimony confirmed that the majority of the transactions related to the three and spent it for the benefit of individuals other than the victim. Sullivan’s demonstrate d that the defendant took in excess of $300,000 fro m the victim Account, and the defendant’s personal or business accounts. The summary summary of “the flow of money” between the IRA, the Trust account, the FNBC of the charged conduct. Through Sullivan ’s testimony, the State introduced a Even without the text messages, the State presented substantial evidence

satisfied that standard. outcome of the trial would have been different. Id. The defendant has not trial counsel’s unprofessional erro rs, there is a reasonable probability that the deficient performance undermined the defense; rather, it is whether, absent not recklessly.” However, the relevant question is not whether trial counsel’s his case at trial because it undermined his defense that he “acted in good faith, T he defendant argues that the disclosure of the text messages prejudiced p. 9 9

counsel would have been required to make some disclosure under Rule 3.3, we statements through his own testimony. See i d. Thus, even assuming trial messages. Indeed, C omment 10 encourages the client to correct any false counsel could have taken other remedial steps prior to disclosing the text the false statements or evidence.” Id. After conferring with his client, trial and seek the client ’ s cooperation with respect to the withdrawal or correction of confidentially, advise the client of the lawyer’ s duty of candor to the tr ibunal “the adv ocate’ s proper course [would be] to remonstrate with the client that aspects of the defendant’s or the defendant’s wife’s testimony were false, specific form of evidence, like the text messages. If trial counsel had known requirement that a disclosure necessary to remedy the false testimony be a Conduct 3.3 2004 ABA Model Code Comment [10]. However, there is no information that otherwise would be protected by Rule 1.6.” N.H. R. Prof. to remedy the situation, even if doing so requires the lawyer to reveal advocate must make such disclosure to the tribunal as is reasonably necessary taken in the event a witness testifies untruthfully. Comment 10 stat es “the provides additional guidance with respect to remedial measures that must be N.H. R. Prof. Conduct 3.3 (a). C omment 10 to the 2004 ABA Model Code

measures, including, if necessary, disclosure to the tribunal. know [o]f its falsity, the lawyer shall take reasonable re medial called by the lawyer, has offered material evidence and comes to knows to be false. If a lawyer, the lawyer’s client, or a witness A lawyer shall not knowingly . . . offer evidence that the lawyer

part: New Hampshire Rule of Professio nal Conduct 3.3 states, in pertinent

aspects of his witnesses’ testimony. W e disagree. disclose the text messages once it became clear that the messages contradicted deficient representation because trial counsel had an ethical obligation to The State next argues that disclosure of the text me ssages was not

230. not preclude a finding of deficient representation. See Candello, 170 N.H. at the text messages. We, therefore, agree that Candello is inapplicable and does factual determination that the defendant did no t direct trial counsel to disclose Based on the foregoing, we conclude that t he record supports the trial court’s . . . other messages that supported [the defendant’s] theory of this case.” messages, he concluded that they contained “several very good messages and explained. He also explained that, after reviewing the entirety of the text taxes. It’s better than giv ing it to the state or that whore” — could be spend 180,000 appropriately ‘for them’ in a short time, then pay 120,000 in testified that he believed the text — “I did the math in my head and we could outweigh[ed] the bad.” Furthermore, during his deposition, trial counsel p. 10 10

HICKS, BASSETT, and DONOVAN, JJ., concurred.

State v. Bazinet, 170 N.H. 680, 688 (2018). issues raised in the notice s of appeal, but not briefed, are deemed waived. decision to review and reconsider its sentencing decision. See i d. All other messages constituted deficient performance, we will not disturb the trial court’s the trial court did not err when it concluded that the disclosure of the text erred in denying his motion for a new trial. Finally, given our conclusion that defendant has failed to carry his burden to demonstrate that the trial court planner was harmless beyond a reasonable doubt. We a lso conclude that the excluding the out - of - court statements of the defendant’s parents and financial In sum, we conclude that any assumed error by the trial court in

they rely. State v. Batista - Salva, 171 N.H. 818, 824 (2019). consider the State ’s other arguments, having rejected the premise on which messages fell below an objective standard of reasonableness, we need not that the trial court did not err in concluding that disclosure of the tex t grant a sentence review hearing must also be reversed.” A s we have concluded and reverses the trial court’s determination, then the trial court’s decision to sentencing decision. Its sole argument on this point is “[i]f this Court agrees of the text messages constituted deficient performance that affected the to review and reconsider the sentence based on its conclusion that disclosure Finally, t he State argues t hat the trial court erred in ordering a hearing

review.” (quotation omitted)). trial court, without developed legal argument, is insufficient to warrant judicial (2003) (“[A] mere laundry list of complaints regarding adverse rulings by the insufficient to warrant judicial review. See State v. Blackmer, 149 N.H. 47, 49 statements.” A blanket assertion, without developed legal argument is messages exchanged prior to the onset of a criminal investigation are “witness does it point to any legal authority, to support the assumption that text messages are “witness statements.” The S tate makes no legal argument, nor Procedure 12(b)(4). The State’s argument assumes that the content of the text disclosed through reciprocal discovery under New Hampshire Rule of Criminal The State next argues that the text messages were re quired to be

necessary to remedy the [potential] situation.” Id. messages rather than any other form of evidence would be “reasonably conclude that the State has not demonstra ted that dis closure of the text