Katherine E. Hedges
An associate at Hage Hodes in Manchester practicing civil litigation and corporate law.

No. 2017-0512
Oct. 25, 2018
Reversed and remanded.

  • The Court examined whether the defendant had constitutionally deficient counsel entitling him to a new trial.

The defendant was the former step-father of a child victim that alleged she had been sexually assaulted by the defendant. The defendant was indicted on counts of aggravated felonious sexual assault involving both digital and penile penetration. The child testified at trial as to the digital penetration and also that although she did not see the penile penetration, it felt different from the digital assaults. A jury found the defendant guilty on the counts of digital penetration and acquitted him on the counts of penile penetration. The Supreme Court affirmed a direct appeal, and he appealed again following the trial court’s denial of a new trial on the grounds of ineffective assistance of counsel.

The defendant alleged that his trial counsel provided constitutionally deficient representation under Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment of the United States Constitution. Because the standard is the same under both constitutions, the Court only considered the New Hampshire Constitutional law. To demonstrate ineffective assistance of counsel, the defendant must show that the counsel’s representation was constitutionally deficient and that the deficient performance actually prejudiced the outcome of the case.

The defendant alleged four aspects in which his counsel was deficient. The Court found that his counsel was constitutionally deficient for failing to rebut the State’s characterization of the defendant’s police interview and for failing to object to opinion testimony given by a child protective services worker. As a result, the Court did not consider the defendant’s other grounds for appeal. The State characterized the police interview as containing statements that the defendant told the officer that he would “beat” the charge or “get away with” sexual assault charges like his own father had. But, the actual transcript of the interview contained at least a dozen denials of guilt, and the only a reference to fighting the charges was made when the officer told him he would likely be charged with a crime. The Court found that the defendant’s counsel was constitutionally deficient because she failed to challenge the State’s mischaracterization of the interview as an implicit admission. Although his attorney had the transcript, she did not object to the testimony or sufficiently attempt to neutralize the characterization.

The Court also found that a worker from child protective services (CPS) offered expert testimony by discussing her observations of the child and linking the child’s actions to those typical of abused children who had been abused over a period of time. This linked the child’s sexual behavior to the defendant because the child’s allegations were that the defendant had abused her over a long period of time. The jury had heard testimony that the child was previously sexually abused on one occasion by someone else, but the discussion of the period of abuse by the CPS worker likely distanced the child’s actions from that assault. The Court found the defendant’s counsel’s failure to object to this testimony was constitutionally deficient, especially after the prosecutor characterized the testimony as being from someone specially trained even though case law clearly prohibits this kind of testimony.

When reviewing whether the ineffective counsel was prejudicial, the Court did not give the typical weight of deference to the trial court that ruled against the motion for a new trial because it was not the trial judge that decided the motion.  Because most of the evidence in the case turned on the credibility of the child, the Court ruled that the ineffective counsel impermissible bolstered the child’s credibility and was prejudicial and that the defendant was entitled to a new trial.


Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant attorney general), for the State. David M. Rothstein, deputy director public defender, Concord for the defendant.