Criminal Law/Constitutional Law

Shenanne Tucker

Shenanne Tucker
Practiced law in
New Hampshire and Maine since 2002,
and currently is
predominantly privately employed working
in insurance.

Appeal from Sullivan County, No. 2018-0292

Nov. 26, 2019

Affirmed.

 

  • Whether the trial court erred in holding the evidence against defendant was sufficient to support the jury conviction that he operated his SUV recklessly and as a deadly weapon thereby denying defendant’s JNOV.
  • Whether the trial court erred in ruling that counsel’s assistance was not ineffective and thereby denying defendant’s motion for new trial.

 

The defendant allegedly tailgated, swerved in and out of lanes, and cut so close in front of the victim vehicle that it hit his SUV and swerved at highway speeds into the guard rail. Defendant also allegedly thereafter left the scene. Based on video evidence from the victim vehicle, the jury convicted the defendant of felony reckless conduct with a deadly weapon. Among other arguments, the defendant argued that the evidence was insufficient to establish a reckless mens rea or that he operated his vehicle as a deadly weapon. The defendant further requested a new trial, arguing that he had ineffective assistance by counsel because his counsel had not sought out additional expert testimony when the first consulting expert was unable to give favorable opinions.

The Court held that the evidence was sufficient upon which “a rational trier of facts could have found, beyond a reasonable doubt, that the defendant was aware of, [but] consciously disregarded, the substantial and unjustifiable risk” created by his conduct. The issue of Defendant’s mens rea, a subjective inquiry, was necessarily based on circumstantial evidence. The Court rejected defendant’s argument that the victim vehicle’s accident was not foreseeable and noted also that the defendant’s statements denying knowledge of the accident were not in evidence. The Court found, instead, that the defendant failed to demonstrate that the circumstantial evidence pertaining to his mens rea “did not exclude all reasonable conclusions except guilt.” Additionally, the Court held that the evidence was sufficient with respect to the use of defendant’s vehicle in “a manner of use that is ‘known to be capable of producing death or serious bodily injury[]” and, thus, as a deadly weapon.

With respect to ineffective assistance of counsel, decided under the federal constitution, the Court addressed an issue of first impression in New Hampshire: whether counsel is required to consult with additional experts after investigating the facts and consulting with an expert who could not offer favorable opinions. The Court answered this in the negative and upheld the denial of defendant’s request for a new trial. The Court found that the defendant had waived all other arguments.

Accordingly, the Court affirmed.

 

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

 

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