State of New Hampshire v. Tommy Page

NOTICE: This speech-to-text record was generated from automated speech recognition, is likely to contain errors or inaccuracies, and should be verified against the recording provided by the Supreme Court at https://www.courts.nh.gov/our-courts/supreme-court/oral-argument/live-stream/2023.

My name is Robin Malone and I am here today for Tommy Page. I have reserved two minutes for rebuttal, and I want to speak briefly about the challenges that we've lodged in our motion. The defendant has challenged trial counsel's effectiveness in four ways. First, in failing to meaningfully use expert assistance to support an expert based theory advanced in their opening second in failing to meet promises made to the jury in opening and also shifting their theory. Third, in failing to object to the state's objectionable closing argument, and the defendant finally asks this court to consider the cumulative prejudicial effect of those errors. I want to start my time today speaking about the third prong, the closing argument prong, um, as well as the, um, the cumulative effect of all of the errors because the state's closing argument incorporated and in fact, invoked the other constitutional failures that amplifying, uh, the impact of those failures while at the same time attacking trial counsel's credibility and ethics. The lower court aired when it did not consider that cumulative prejudice as Wilbur calls for us to do. Uh, I would argue that the lower court also aired in finding that the closing was not improper. I will, of course, take questions at any time. How did counsel impute in the ethics of trial counsel? Of course, I would speak, uh, first that we do not dispute that the state and the defense are encouraged, indeed must, especially in cases, um, as serious as this sworn be vociferous and fierce advocates for our clients. But this court has established and acknowledged that there are thresholds, and I would say that in this instance, the state went beyond that threshold. The court has acknowledged specifically the power, uh, of words used by a prosecutor in closing arguments, which, uh, aside from the judge's instructions are the last word and the blows here, we would say by the state were foul and not fair. Specifically, I would draw a comparison to Stillwell and Stillwell. This court said that while a prosecutor may not stray into forbidden terrain, that a defendant has a corresponding obligation to protect his own interests. And here counsel failed to meet that obligation. Within minutes of starting the closing argument, it appears at the bottom of the full first full page of the transcript of the state's closing. The state says, uh, those Facebook, uh, those photos were Facebook fodder. That's what he said. There's no actual evidence of that, but that's okay. He'll say it anyways, because they can do that. They need you to focus on the evidence. So the prosecutor did not say in so many words, the defense can lie to you, but that is precisely what these words communicated to the jury, and that the defense did not share the state's truth seeking purpose. That is what was communicated. And that language echoes what this court found to be improper end doubtful, and a host of other cases. That was a refrain for the state in their closing, they did not stop there. Um, the state repeatedly used the phrase, quote, actual evidence and referring to evidence advanced by the prosecution, referring to defense arguments as quote unsupported lawyer statements or rhetoric. And the state's argument in that aspect also echoed that in Stillwell, uh, specifically it, the state told the jury that Danielle Sylvester is a somewhat convenient means to try to distract them from the truth. And that's page 9 22 in the trial transcript. And Stillwell, the state argued in closing, and this court found that improper, that the defense team was trying to distract the jury from the truth. And again, this court found that improper, and it is within that attack that I would suggest that attack on the, on defense counsel's character and credibility that this court should consider, uh, the state's burden shifting and vouching, which are the other arguments that we advanced. And that language may have been, you know, linguistically more subtle, uh, but this too was a persistent refrain. The state said for exam example, what had they advanced in terms of actual evidence? That was page 913. The state told the jury that they could trust and rely on the experts as much as if the jurors loved ones were the ones they were treating. And in speaking about the evidence, which both vouches and calls into question and is an improper comment on the defendant's rights, the state characterized the state's evidence as uncontradicted on. Were these statements objected to, I'm sorry, were these statements objected to? There was no objection to the closing argument. Uh, the state used the terms, if I may, um, uncontradicted, unopposed undisputed, and those words suggest that it could have been disputed had the defense presented evidence. It could have been opposed, had the defense presented evidence, it could have been contradicted, had the defense presented evidence. So you're saying that it, it is improper for the prosecutor to say this is undisputed evidence. I think in the context overall that it is, I think that here characterize the characterizing the evidence, um, as undisputed. And I do think that it's linguistically relevant that the evidence was characterized as the undisputed evidence, the unopposed evidence of our witnesses. And I think that if you look at, um, if you look at loving, um, the statements, there were not express comments, but the court was willing to find that they were, um, nonetheless comments on the defendant's rights. Um, I would say that those were improper comments, not just on Mr uh, Paige's rights, but also an improper comment, um, and that they vouched for the witness's credibility, um, while talking about the fact that, um, the jurors could trust and credit these experts as if they were caring for their own loved ones. I would also suggest that that's an improper call to the juror's, um, sense of sympathy and an improper argument. I think that this is a specific calling out of counsel's decision to not present evidence, and that is problematic, especially problematic. When we turn to the other failures, um, that we have advanced here, specifically defense counsel's failure to make promises made an opening the shift in theory and specifically the misstatement, made an opening of the anticipated testimony of Dr. Duval, who was specifically the state expert witness that the defense had chosen to rely upon to advance their own expert theory. Um, all of that, um, calls into question in the broader context of the personal attacks on defense counsel and defendant's rights. Um, all of that calls into, um, culminates in a prejudice that makes it right here for this court's consideration. Um, as the, as it is the state's reliance on these errors, uh, specifically as part of their effort to discredit the defense, I think that that is where that culmination comes from, and the cumulative effect is appropriately considered because in reality, the prejudice here was the hit to defense counsel's credibility with the jury, uh, which is hard to believe, did not influence how the jury considered the case during deliberation. At the very least, it undermines the confidence in the verdict. How should the photographs that were in evidence impact our, IM our analysis of prejudice here? The photographs were obviously powerful evidence. I think that when there is powerful evidence that is removed from a question of credibility of witnesses, that that imposes on counsel, both defense and the state, a heightened burden to adhere to the rules, um, such that other rights are fully intact. And I don't think that that happened here for the defense. I also would point to the fact that the defense stipulated to those photographs, um, and stipulated to the, um, occurrence. My, um, I shouldn't say they stipulated to the photographs. They did not argue the allegations of sexual assault. Um, their theory was our client sexually assaulted the child. Um, you can hate the client and convict the client for that sexual assault, uh, but he did not commit the homicide or inflict the injuries that resulted in the death. And was that Ineffective? Which part? Justice? The, the portion where they chose to stipulate to or to not challenge the sexual assault? No, the characterization of their client as committing a sexual assault, condemning them for that, but not for the murder. Noting that, um, I acknowledge my light. Um, I don't know that it is justice. I would suggest that, um, one of the first things we learn as criminal attorneys is that we have to consider the good and the bad, consider the interchangeable, and that which may be challenging to overcome and find ways to work around those challenges, Particularly in a very difficult case like this Would absolutely, this was undoubtedly a challenging case for the state, for the defense and for the jurors. And we don't distribute that. We don't dispute that at all. Your argument about, uh, inconsistent defense theories, the state's response is, and, and defense counsel's response was, well, you know, that really, they really aren't inconsistent. They're just different sort of shades of the same defense theory, which has to do with anger and rage by Sylvester. Why isn't that right, the right way to think about it? Of course. Thank you. Justice Bassett. I think that the distinction is the promise that was made in opening. Um, I think that it is one other way that the jury could see that the defense was unable to deliver on those promises. And in the broader context of the state's attack on credibility, um, and the fluidity with which the defense is permitted to treat the facts, I think that that could have been received by the jury as another way in which they were loose with those facts. And I think that it would impact the credibility assessment by the jurors of defense counsel, which overall impacted how they may received the defense. Thank you. Thank you very much.

Ms. Hinckley. You may please the court, Peter Hinkley on behalf of the state, and I'll take questions at any time. Uh, Did you deliver the closing argument? I did. Judge, Let's start there. Excuse me. Let's start there. Okay. Uh, so I think the important starting place to begin is really what you acknowledged in one of your questions is that this was an incredibly difficult case for any defense attorney to try for the reason set forth in this court's opinion affirming Mr. Page's conviction back in 2019. Um, the three particular errors alleged in this case with respect to summation, with respect to experts, and with respect to a consistent theory of the defense, they failed both under deficiency prong as well as the prejudice prong. Getting to summation, I think we should start there at prejudice, and it has not been articulated on appeal. It was not argue below what the actual prejudice was, and the trial court actually found that counsel had not articulated, let alone establish prejudice. So the, if there's no prejudice, then the constitutional claim falls right there and the court should end its analysis there. But with respect to particular arguments that were made in the post, uh, trial motion with respect to summation attack, uh, summation arguments, the trial court made pertinent factual findings. The trial court found that there were no personal attacks on counsel. The trial court found that there was no burden shifting by the state, and those factual findings are amply supported in the record with respect to the absence of a defense objection to the arguments that I made. In summation, counsel explained that when he was deposed and that set forth on page 30 of the state's brief, he explained that he did not find in his professional opinion that most of the arguments that counsel, uh, uh, cited to in the post-trial motion were in fact objectionable. And also that he chose tactically that not to make any objections because he thought he might be intrusive to the jurors, which is a reasonable tactical decision by any defense attorney. So both with respect to prejudice and with respect to actual deficient performance, uh, the claim fails on either one of those prompts, But is it permissible for the state in its summation to point to the lack of a defense, essentially lack of evidence, lack of a defense? Uh, that's not what was argued when I argued that certain facts were uncontested. And in the context of this case, that was a proper argument. My argument was that you didn't hear any evidence of that from the defense. The argument was that the defense agreed with the state's experts with respect to certain factual issues. The defense agreed and they made that tactical decision to, uh, co-opt the state's expert that the state's experts were correct. This is that the injuries were non-accidental trauma. The defense co-opted the timing that per that was provided by three of the state's experts. So if a party agrees with the evidence set forth, then those factual issues are not contested. So that's actually a proper argument to make in the context of this case, where the defense affirmative relied on those same facts to support the defense of alternative perpetrator, which again, was a reasonable tactical decision made by the trial attorneys in this extremely difficult case for any defense attorney to try Alternative perpetrator following sylvester's absence from the apartment not before. Yeah. The, the alternative perpetrated defense was that she Came back, mother Came back and it was a consistent theory of defense that she had been frustrated earlier in the day 'cause she had not gotten her medication. And then when she got home, the victim had wet the bed and that was the so-called triggering event, which, uh, uh, resulted in her abusing her child. That was a consistent defense throughout. It was what was presented to the jurors in the opening statement. It's what the defense tried to present through our witnesses, uh, including the three experts who opined on timing as well as affirmatively presented through defense witnesses. And it's what's counsel of, uh, tried to forcefully argue to the jurors in this summation was a consistent defense throughout. And that defense, again, was alternative perpetrator. That is, that was a reasonable tactic that has not been challenged either below or on appeal. The prior ex preexisting injury that the victim had sustained, it was pointed out by Dr. Aven. Is that something that was ever raised at trial? It, it was, we actually had moved to preclude any evidence in a pretrial ruling and we relied on state versus guy 1 39 New Hampshire 5 26. The trial court actually agreed with that, and any evidence of the preexisting injury was excluded, uh, from mentioned by either party. So that actually was a subject of pretrial litigation. The trial court ruled on that any arrow would be directed towards the trial court in its ruling, not counsel. They, they did object and that was litigated. So there's no deficiency there with respect to counsel's handling of that. Unless the court has any further questions. The state relies on its brief and asks that the trial court's order be affirmed. Thank you. Thank you counsel. Ms. Malone, do you wish to use your two minutes? I have one brief addition Please. The state, um, indicated, uh, during its argument that the trial court made findings that there was no personal attack. I would ask this court to consider that in doing so, uh, the court, um, the trial court made, uh, findings inconsistent with this court's findings and that I would encourage the court To consider. Is that, is that a finding of fact to which we owe deference or should we analyze that de novo? I would ask the court to analyze at de novo. I think that the court's order, the trial court's order, uh, chose to rely on, um, my, my recollection, and I'm, I'm unable to find the specific courts right now, I apologize, is that the court said for the reasons advanced by the state and its pleading, uh, we agree and we find that there's no prejudice. Um, I would say that because this court had previously found statements that echoed those, um, raised in the lower court in our pleading that this court should consider its prior orders, um, and specifically in Stillwell matter. You still have time? Thank you. Just a six, Just cleaning up out there. Um, because, um, specifically there, there, there was the specific language about dis distracting from the truth which this court had previously found to be improper. Um, and that statement is verbatim from the transcript. I think that that was an error that the court should consider de novo. Great. I yield my time. Thank you very Much. Thank you. Thank you very much. Counsel, uh, cases submitted. Court is adjourned. Please Rise.