State of New Hampshire v. Ryan B. Tuttle, 2020-0151 (2021) - Oral Argument

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Tuttle is represented by Jay Rankor. Ms. Rankor, you have reserved one minute and, uh, you may begin whenever you are ready. Thank You, your Honor, may I please the court? My name is Jay Rancor. I represent the appellant Ryan Tuttle. Ryan Tuttle had requested that the trial court permit him to withdraw his guilty pleas and, uh, proceed to trial based upon ineffective assistance of counsel. He alleged he that occurred prior to the entry of his guilty plea. Those, uh, that ineffective assistance of counsel falls into two general categories, failure to file and litigate a competing harms defense on behalf of Mr. Tuttle, and failure to provide and sufficiently review discovery materials with Mr. Tuttle within those two broad categories. Um, we've alleged that trial counsel failed to provide a copy of discovery to Mr. Tuttle, uh, permitted the plea to occur the day he had received additional discovery materials from the state without reviewing the discovery materials himself or permitting Mr. Tuttle to review them prior to the entry of the plea. Failing to review the body camera videos with Mr. Tuttle, failure to provide Mr. Tuttle with a copy of interview reports of two witnesses that were prepared pre plea, um, failure to interview a witness regarding the competing harms defense that witness being Brandy Tuttle and failing to adequately inform and litigate the, um, issue of the competing harms defense. The court is obviously well aware of the Strickland standard that governs an ineffective assistance of counsel claim. So I did wanna focus on the second prong because I know the state had addressed that in their brief to the court. And the second prong being the prejudice for purposes of a plea, uh, in a guilty plea context, the prejudice prong requires the defendant to show that there is a reasonable probability that buffer counsel's errors, the defendant would not have pled guilty and would have instead insisted on going to trial. And the state has argued in its brief that Mr. Tuttle did not, um, provide evidence of this at the time, uh, that this was litigated in the trial court. Sorry, Ms. Ms. Rankor, can you, can you educate me, wouldn't it also be the defendant's, uh, burden to prove that there would've been a better result had he gone to trial or is that not part of the Strickland test? That is, that is not part of the Strickland test, as I understand it in a guilty plea context, that in a guilty plea context, it's a reasonable probability that the defendant would not have pled guilty and would have proceeded to trial. Mr. Tuttle filed three pro se pleadings in this matter, which each were sworn to under oath, and those are in our appendix. Um, Mr. The, uh, trial court seemed quite comfortable with the fact that while the defendant may not have physically seen the exhibits that they had been thoroughly discussed, the court wanted to make sure that the defendant was well-informed and satisfied itself, that the defendant was well informed. Is there some, uh, legal standard that the defendant has to physically see the exhibits rather than be told of them? There is no, there is, there are guidelines, I would say, and I quote those in our brief, specifically from the American Bar Association guidelines for defense counsel that they should provide as well as review discovery materials with their clients. Um, in this case, while the trial counsel found that Attorney Bria trial counsel had reviewed discovery materials with Mr. Tuttle, we know for a fact that that's not accurate because at the plea hearing, specifically at page 10 of the plea hearing, you'll see that that trial counsel said to the court, I just received material today, I haven't had a chance to review it. So he had not reviewed it and certainly had not reviewed it with Mr. Tuttle, but indicated to the trial court that he was willing to proceed with the plea even though he had not reviewed it with his client. What Information that was received the day of the plea would have presented the level of prejudice that your client has to meet. We are, we don't, the pro, one of the problems is Attorney Bria could not identify what that material was, so exactly what the discovery material that was received pre plea. The day of plea was not identifiable. He could not recall exactly what it was. Um, but Mr. Tuttle had stated in his pro se filings, and that's at appendix page 50 and 52, that specifically if he had reviewed the two statements of the witnesses, um, Ms. Connolly and Ms. Paul prior to the day of his plea, that he would not have entered his plea. And those witnesses did support the competing harms defense. One of those witnesses was presented at the time of sentencing to support, I would argue, a competing harms defense that was presented at the time of sentencing. That goes, I do wanna address one other issue in the state's brief that it raised, which is that we did not properly preserve this issue of the interview of Brandi Tuttle. Um, I I just wanted to point out for the court where was raised, it was raised in the motion to reconsider at paragraph eight. It was raised at the time of the hearing. Um, specifically if you look at the hearing page 51, we, it, it was raised at that point. It was also raised in the hearing at the, at page 61 of the hearing. And Attorney Bria was extensively questioned about what Brandy Tuttle had said after the fact, um, and why that interview did not occur prior to plea. And then it is raised in the notice of appeal as this issue of not interviewing Brandi Tuttle relates to not a properly litigating the competing harms defense. Brandi Tuttle admitted in the interview that she was armed with an ax that she was attacking the door behind, which Mr. Tuttle and Ms. Connolly were barricading themselves, that it was her knife that she did drop the knife during this melee that is all supportive of a competing harms defense that Mr. Tuttle picked up the knife to protect himself and Ms. Connolly during this attack by Brandy Tuttle herself. And the, and the video cam footage would reinforce that the knife was in his pocket, not sort of brandished as it were. Yes. The, the, the, even the videotape would indicate that within seconds, he's, he's standing there with nothing in his hands, and that within seconds, the he steps back and the police perceive that to be something potentially dangerous and they then dance on him. The, the trial court was incorrect when it stated in its order that Mr. Tuttle was brandishing the knife in some way. If, if you look at the plea hearing and the recitation of the facts, which is provided by the State of New Hampshire at the time of his plea hearing, the state clearly states that not until Mr. Tuttle was taken into custody and searched did they locate the knife, which was in his pocket. It was not in any way brandish or used to threaten

or harm anyone. Ms. Rancourt, I'm just looking back at judge's and it does, I, I can't find right now where he discussed an argument about, uh, the defendant's sister and the Ineffective Assistance and not interviewing her. Was it raised in front of Judge O'Neill as an ineffective assistance argument? Yes. It was raised as part of the failure to completely litigate the, the competing harms defense, which this witness was an essential witness to present a completing a competing harms defense. The trial court addressed it in the order at page nine of his order where he adopted the statements by Attorney Bria to say that, um, Brandy Tuttle's statements would not have been helpful, although I would argue that that is not correct either be Attorney Bria seemed to settle on the fact that Brandi Tuttle said she dropped the knife while other witnesses had said that she threw the knife. But I, I don't see that as a distinction for presenting a competing harms defense. She, she does admit to attacking the door with an ax and advancing on Mr. Tuttle and Ms. Connolly while they're barricaded in a room. At which point, at some point this knife is introduced into that melee, if you will. I'm, I don't wanna, I do wanna just address an issue the court might have, which is whether or not, you know, I'm asking the court to adopt a policy that discovery always needs to be provided to a defendant. I think the a BA standards on criminal defense are instructive on this, that defense counsel should provide discovery material to the client and pro and review it with them. There certainly are likely to be exceptions to that rule if the material has something in there about being a cooperating witness or about being a sexual offender or something that could harm the client while incarcerated. But a blanket rule that the, the trial counsel apparently used in this case and has used throughout his career is not to provide discovery materials, not to send it into a jail, I would argue is not effective assistance of counsel. The person who knows what happened that day, the person who knows the facts of a case are the defendant, is the defendant, 'cause the defendant's there. And so when the trial counsel is reviewing discovery materials and police reports, they're reviewing it from their legal perspective, but they weren't there. They don't know if they're accurate. They don't know if they're leaving anything out. They don't know if there's other witnesses who were not interviewed until the defendant sees them and can point out that's not accurate. That's not what happened at this point. There was somebody else there who might be able to tell you this fact or that fact. If they don't see that material, then they don't know that. And as looking at it from trial counsel's perspective, you could summarize a police report for somebody, but you might not be hitting on the critical points. And So, Ms. Rancor, uh, just to clarify, are you asking us to adopt a rule that discovery needs to be physically shared, subject to, or it's ineffective assistance subject to a few very limited specific exceptions. I think that the a BA standard essentially should be adopted that materials should be provided to criminal defendants and reviewed by trial counsel, and that certainly there would likely be exceptions to that. But a, a, a rule or a policy that you don't have to, or that just generally speaking, I never send discovery materials into a house of corrections that is not effective assistance of counsel because the client just doesn't know what's in there, doesn't know what to point out to you that may be accurate or not accurate. Simply summarizing it, particularly in Mr. Tuttle's case where Mr. Tuttle had learning disabilities and mental health issues, simply discussing it with him on the telephone is not adequate. And certainly interview reports are the same way, particularly in this case, those interview reports that were exculpatory, that provided information that other witnesses would have supported Mr. Tuttle's version of events that he had just picked up this knife, which had been dropped or thrown during this melee. With that, I'll reserve the rest of my time. Thank you. Thank you, Mr. Hyam. Thank you, your Honor. May it please the court, Zachary Heim for the State of New Hampshire. Uh, the state asks that you, um, affirm the defendant's convictions because he has failed to provide adequate evidence on both prongs of the Strickland test. Uh, he has not demonstrated that his counsel was constitutionally ineffective, and he has failed to show how any errors in his counsel's part, uh, would've prejudiced him. How is failing to proceed with the competing harms defense not constitutionally defective? Uh, well, your honor, the, the decision not to, uh, proceed with competing harms is ultimately a strategic decision. Uh, attorney Brisa in, uh, in the hearing, specifically delved into this and into his, his thinking behind this and how he had looked at a competing harms defense. He had considered a competing harms defense. In fact, I believe he said it was the, the main defense that he was considering if this went to trial. Uh, but ultimately he considered a number of factors. Uh, chief among them is the amount of sentencing exposure that this defendant was looking at had he gone to trial and been convicted. Uh, this is something that both attorney Brisa and his client were concerned about. Rightly so, uh, the defendant was facing very substantial prison sentence if he were convicted. Um, he also took into consideration the lower standard of proof, uh, in a motion to impose. And so considering sort of the extraneous factors, attorney Bria concluded that strategically litigating a competing harms defense that he thought may have some merit, but that certainly wasn't a slam dunk, uh, was not in his client's best interest. Uh, and He he discussed those considerations with his client in detail. That was what he testified to, your Honor. Yes. That he, he discussed all of this with his client and that his client fully understood that, uh, they could litigate a competing harms defense, uh, at The time. Sorry, but at the time he discussed it with his client, he had not reviewed some recent discovery, and we don't know exactly what was within that recent, recently turned over discovery. Yes, your Honor. Uh, but I, I would like to point out that between it, it appears that the discovery, this, this unknown discovery, uh, was received either the day of or just before the plea sentencing, uh, the plea from the time of the plea to the date of sentencing. We have about three weeks time. I believe it was the 23rd of March to the 18th of April. So we're looking at a substantial amount of time in which attorney Bria could look at this evidence, and if it were so exculpatory that he needed to change his client's plea, that was available to him to, to file with the court that he, uh, We know. Do we know if he did that? Uh, we don't, your Honor, but what we can look at is, you know, attorney Bri's long experience, I think at the time of of this case, he had been a public defender for something like 16 years. Uh, so he, he would've been able to look at this evidence after he received it and, and know whether or not it was, you know, so exculpatory that it changed the calculus of moving forward with trial. Uh, it it appears that it was not, and he did not attempt to change his client's, uh, plea. And, and so there's really no evidence that, that this prejudiced his client in any way. Uh, But, but if we don't know what that evidence was, and then we don't, and we don't know whether he discussed the unknown evidence with his client, how, how can we feel comfortable that he wasn't prejudiced? Well, we have, again, we have to look at, at attorney Bri's, you know, long experience in, in looking at evidence and evaluating evidence. And, you know, lawyers are routinely expected to evaluate individual pieces of evidence in light of their client's overall case. And it doesn't necessarily fall to, uh, to the client to make the determination that this piece of evidence is, you know, the piece that is going to be exculpatory. Particularly when we're dealing with something like a competing harms defense, which is a fairly technical, you know, legal defense. Um, we, we can't just say, well, if he had seen it, he would have changed his mind about proceeding. And, and to that point, I would also, uh, point you to, uh, judge O'Neill's decision in which he, he notes that, you know, this, um, this client, this defendant rather has, you know, been before this court, I think it was 2011, 2012, 2018, and then again for, for this motion to impose. So he is, he's had this exposure to the legal system and he has worked with Attorney Brisa on other occasions and clearly has a level of trust with this attorney or had a level of trust with this attorney. So, but is that really appropriate given that this particular issue before the court is, I mean, excludes first you have the, the motion to impose and that hearing has to prove certain things. And so the, the understanding or the experience of the trial court with the various parties, I'm not seeing how that relates to whether the representation given to the defendant was constitutionally deficient or not. The so I I I, I guess the, the point that I'm blundering through is, is that, um, you know, attorney Bria had this relationship with his client and, and said under on in his testimony that he felt very badly for, you know, for this client and the, you know, the situation he found himself in and did, you know, whatever he could to try to find something in this client's case that would help him. So I think the fact that there is this relationship and the fact that, you know, attorney Brita's, attorney Bria has extensive experience at this, you know, supports this presumption that we have in these cases that trial counsel's actions are reasonable, we start off with a presumption of reasonableness and work from there. So, so I think that this buttresses that, um, that argument that, that his actions were reasonable and that he was reasonably looking out for his client's interests at all times. But everyone can have a bad day or a bad series of days. Well, absolutely, your honor. Um, but you know, when we have a span of, of three weeks time for him to consider this and discuss it in his office or, or, you know, look this over, that's a pretty substantial amount of time to, to look at this new evidence, um, even if it was after the plea. Uh, now I'd like to to address sort of some of the, the other issues here, particularly, um, the receipt of discovery materials and the, um, the, the use of discovery materials, because I think this really warrants the, some discussion Attorney Bria was very clear, and I, I think that this is amply reflected that it, it's not a common practice nor necessarily a proper practice to, you know, send all discovery that a, that a defense attorney receives to an incarcerated client. It's just not practicable. I mean, we have considerations of safety and confidentiality. You know, lawyers have to make sure that, that, you know, they're doing right by their client. It's why, it's why we're here today. And so if, if he's allowing all of this discovery to be sort of in the wind that that would be going against that, that duty and as specifically relates to the body camera footage, uh, the idea that, that he should have delivered this body camera footage into the prison is, it's just really not a reasonable suggestion. There's, there would've been no way for the defendant to watch this body camera footage in, in prison. He, so the idea that he was, he was constitutionally ineffective by keeping the discovery, you know, with, with him and relaying it to his client. You know, I think he said they had something like 15 phone calls back and forth over this van. Can you clarify, was there any discovery that was physically provided to the defendant here? Uh, I believe after the case, um, the defendant requested the discovery and, and right Attorney Bria, I don't think he had made a request before then. And, and Attorney Bria, I don't think sent him any of the discovery of, of his own accord. Um, I think it's, he stated that it was his general practice not to, not to do that for the reasons I've, I've outlined, uh, for safety, And here's my, here's my ignorance. Is it possible to meet with the defendant in prison at one of those, like on tv, you know, meeting things with the glass and show a phone video? I mean, is that, is it possible to do that? Your Honor, I'm afraid I have to plead ignorance on that as well. Um, I I'm not entirely certain. Again, we're dealing in that situation, we're still dealing with issues of confidentiality and of, of sort of broadcasting of of body cam video in into prison and, and sort of the logistical and practical issues there. Um, particularly when, you know, the def the body cam footage isn't going to show anything that the defendant wasn't really witness to. I mean, he was there, he's on the footage, and while you know it, he might, It could, it could potentially solve this conundrum of whether he was brandishing the knife or had it secured in his pocket. It, it could, your Honor. But at this stage, I don't know that that really changes the calculus at all because the, the issue is, is you know, not whether or not they could have potentially maybe, uh, litigated a competing harms defense. It's, was it reasonable that attorney Brisa, in conjunction with his client decided not to do so? So the, the issue really isn't was a competing harms defense available and possible in, in some way, shape, or form. The issue is, was the decision that was ultimately made a reasonable one under the circumstances, and the state would argue, uh, that, that it was, that it was entirely reasonable given the exceptional amount of, of sentencing exposure that this defendant was exposed to. Uh, so, and, and finally, I'd like to, just very briefly, I see my le my yellow light is on address the issue of, um, Brandi Tuttle's statement. Um, I would just like to highlight that there are, that, once again, there's a lot of, of extraneous information here that is, that is relevant. So in specifically we're, we have, uh, witnesses including Brandi Tu, whose statements don't seem to line up, we have credibility issues. Uh, and I believe there was also issues of, um, possible colluding or somehow, um, working together on a phone call in the prison. Uh, so this isn't, you know, a strictly exculpatory piece of evidence that that would've been a silver bullet. Um, and this is, and you know, the, this once again goes into the calculus of whether or not to take this to trial when you have these witnesses who are, whose credibility is at best dubious. Uh, so I, I think we need to consider that fact when, again, we're looking at was this trial strategy or was this decision the strategy, not to go to trial, uh, reasonably crafted. And, and it, and the, the most reasonable answer here is that it was that that attorney Bri saws, excuse me, uh, decisions here were tactical and strategic and that he, you know, drew on his, his almost two decades of experience, uh, in working with this client who he had worked with previously to decide that, you know, going to trial is not in your best interests. You are facing a lot of jail time. The evidence against you is, is fairly strong. And the, the one, the one defense that we are seriously considering, that we think may be a, a good option, uh, has, has a lot of problems with it. Uh, not the least of which being that the state had moved to, uh, preclude a competing harms defense. And I see my light is on. Uh, so with that, the state asks, uh, that you affirm and that this case be submitted. Thank you, counsel. Ms. Rancor. Thank you, your Honor. I just wanna make a few points. Um, the evidence would seem to indicate that Attorney Bria had no intention of litigating a competing harms defense because he filed no notice of a competing harms defense. And under the statutes and our rules, competing harms is a defense where notice needs to be filed and no notice was filed. The state filed its motion to preclude the competing harms defense the day before Mr. Tuttle entered a plea. So that issue had not been litigated, and I'm not sure the extent of a conversation that occurred within the, you know, in best case scenario, 24 hours between the time that was filed and a plea there, there is a way to review, as you can imagine in this day and age, with body cameras, which are fairly typical, there is a way to bring those into the prison or jail. You make an appointment and to bring your laptop with you and sit with your client and show them on the laptop, the videos, and then discuss the videos at that time. I see my time is up. Alright, well thank you all very much. Case submitted, court stands in recess. Thank, Thank you.