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Bar News - August 16, 2017

Supreme Court At-a-Glance


July 2017

Criminal Law

State of New Hampshire v. Jason N. Candello
No. 2016-0096
July 7, 2017

  • Whether the state offered sufficient evidence to prove that the victim suffered serious bodily injury
  • Whether the trial court erred in denying the defendant’s motion for a new trial based on ineffective assistance of counsel

The defendant appealed his conviction for second-degree assault on the grounds of insufficient evidence, and the Court reviewed his direct appeal de novo. The defendant contends, and the court disagrees, that there is insufficient evidence to show “severe or protracted impairment.” The jury heard evidence from the victim and the trauma surgeon regarding the victim’s injuries. The Court, after reviewing that evidence and “all inferences drawn from it in the light most favorable to the State,” held “that a rational juror could have found beyond a reasonable doubt, that the defendant caused the victim to suffer serious bodily injury.” Therefore, the Court concluded that because the victim’s injuries constituted “severe impairment,” the Court did not need to address the sufficiency of the evidence.

The Court also considered the defendant’s appeal of the trial court’s denial of his motion for a new trial based on alleged ineffective assistance of counsel. Under the state and federal constitutions, a criminal defendant is guaranteed reasonably competent assistance of counsel. The defendant must demonstrate both that counsel’s representation was “constitutionally deficient” and that counsel’s “deficient performance actually prejudiced the outcome of the case.” The defendant argues that trial counsel’s decision to allow the defendant to decide whether to admit audio recordings and counsel’s lack of cross-examination of the victim for inconsistent statement rendered trial counsel’s representation “constitutionally defective.”

First, the Court looks at the admission of audio recordings of conversations between the defendant and his mother while he was in jail. Defendant’s counsel objected to the state playing a portion of one of the audio tapes to the jury. The Court asked counsel and the defendant confirmed that he wanted the entirety of the audio tape to be played. Playing the otherwise inadmissible recording was prejudicial to the defendant, and would have fallen below the established standards for reasonable attorney conduct if he was acting alone. However, because counsel had conferred with the defendant, and was following the defendant’s wishes, the Court ruled that the defendant had failed to prove that counsel’s conduct fell “below an objective standard of reasonableness.”

The defendant argues that by “blindly following” the defendant’s wishes that he abdicated his responsibility to make a critical strategic decision to his uninformed and uncounseled client” who “essentially represented himself.” The Court holds that counsel is “an assistant to the defendant and not the master of defense.” Deference is given to the explicit directions of the client, and if counsel thoroughly explains the potential problems with an approach to the client, then counsel’s “ultimate decision to follow the client’s will (should) not be disturbed lightly.”

Next, the defendant argued that trial counsel was ineffective for failing to cross-examine the victim about prior inconsistent statements regarding the location of the assault and whether the victim fell to the floor.

While the victim was on the stand, counsel withdrew from questioning them about inconsistent statements, and was unable to recall the victim to the stand because they victim was no longer under subpoena and there was no foundation for the statements to be introduced.

Because the victim’s testimony was not inconsistent in that he fell to the floor, the trial court found, and the Court affirmed, that trial counsel’s decision not to cross-examine the victim did not prejudice the outcome of the trial. Therefore, the Court found that the defendant failed to establish a “reasonable probability, but for counsel’s alleged errors, the result of the trial would have been different.”

Joseph A. Foster, attorney general (Sean P. Gill, assistant attorney general on the brief and orally) for the State. Stephanie Hausman, deputy chief appellate defender (on the brief and orally) for the defendant.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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