State v. Page

1

State of New Hampshire v. Tommy Page

No. 2022-0536

Supreme Court of New Hampshire

March 20, 2024

Page the court on March 20, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The defendant Tommy Page, appeals an order of the Superior Court (MacLeod, J.) denying his motion for a new trial in which he alleged that his trial counsel's representation was constitutionally deficient. On appeal, the defendant asserts that the trial court erred by failing to find that trial counsel's representation was ineffective when counsel: (1) failed to "meaningfully consult" with medical experts in order to challenge the State's experts' opinions concerning the cause of death and injuries of the victim, S.S.; (2) failed to object to "numerous improper statements" made during the State's closing argument; and (3) allegedly changed the defense theory of the case during the trial. The defendant further argues that the trial court erred by failing to consider "whether the cumulative impact of all trial [counsel's] errors undermined confidence in the verdict." Because the trial court's well-reasoned and thorough order is supported by the evidence, we affirm.

The defendant was convicted by a jury in 2017 of first degree murder and falsification of physical evidence. The facts and proceedings underlying the defendant's convictions are fully set forth in State v. Page, 172 N.H. 46 (2019), and we need not restate them in this order. Following the defendant's convictions, he moved for a new trial maintaining that his trial lawyers were constitutionally ineffective. In its objection to the defendant's motion the State submitted transcripts of the depositions of the defendant's trial counsel. In August 2022, the trial court issued a written order denying the motion without an evidentiary hearing after concluding that the defendant failed to demonstrate his right to a new trial.

In its order, the court ruled that the defendant failed to prove that trial counsel's performance was constitutionally deficient or that he was prejudiced by any alleged error. The court first considered the defendant's argument that trial counsel erred when they failed "to meaningfully confront the State's panel of expert witnesses with their own expert." (Bolding omitted). The court ruled that even if counsel had erred, the defendant failed to prove that he was prejudiced by their decision to not call an expert witness at trial, explaining that "it was likely that witness would have come to the same conclusion regarding the timeline of the assault upon [the victim], which could have served to buttress rather than challenge or undermine the State's expert testimony."

The trial court next considered the defendant's argument that trial counsel erred in failing to "object to a patently objectionable closing argument" and ruled that the defendant failed to show that he was prejudiced by any such error. (Bolding omitted.) The court disagreed with the defendant that the State personally attacked trial counsel and found that the State focused "on the evidence at trial." In addressing the defendant's argument that the State improperly vouched for witnesses, the court explained that it failed to see how trial counsel's alleged failure to object to the State's closing prejudiced the defendant "given that the defendant's theory of the case utilized and/or relied in significant part on the evidence presented by the prosecution."

Lastly, the trial court considered the defendant's argument that trial counsel failed "to present a coherent and consistent defense" because counsel changed the theory of the case throughout trial. The trial court found that the general defense strategy that an alternative perpetrator - Sylvester - inflicted the injuries upon the victim "remained consistent throughout the trial," and explained that it was "not convinced that any purported change in . . . Sylvester's supposed reasoning" to kill the victim "prejudiced the defendant where the general theory of defense-that Sylvester while enraged killed [the victim]-remained . . . consistent throughout the trial."

On appeal, the defendant argues that the trial court erred when it found that the defendant was not denied effective assistance of counsel. We first examine the constitutional competency of counsel's performance under the State Constitution and rely upon federal case law only for guidance. State v. Whittaker, 158 N.H. 762, 768 (2009). Because the standard for determining whether a defendant has received ineffective assistance of counsel is the same under both constitutions, necessarily, we reach the same result under the Federal Constitution as we do under the State Constitution. Id.

To prevail upon a claim of ineffective assistance of counsel, the defendant must demonstrate, "first, that counsel's representation was constitutionally deficient and, second, that counsel's deficient performance actually prejudiced the outcome of the case." State v. Collins, 166 N.H. 210, 212 (2014). On appeal, when we determine that a defendant has failed to meet either prong of the test, we need not consider the other one. State v. Kepple, 155 N.H. 267, 270 (2007). "To satisfy the first prong of the test, the performance prong, the defendant must show that counsel's representation fell below an objective standard of reasonableness." State v. Labrie, 172 N.H. 223, 236 (2019) (quotation omitted). To satisfy the second prong, the prejudice prong, the defendant must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 237 (quotation omitted); see Strickland v. Washington, 466 U.S. 668, 694 (1984).

Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. Labrie, 172 N.H. at 237. Therefore, we will not disturb the trial court's factual findings unless they are not supported by the evidence or are erroneous as a matter of law, and we review the ultimate determination of whether each prong is met de novo. Id. Notably, here, because the judge who ruled on the motion for a new trial also presided at trial, the trial court is in a better position than we are to assess whether defense counsel's performance prejudiced the defendant. See State v. Marden, 172 N.H. 258, 263 (2019).

We first consider the defendant's argument that trial counsel failed "to meaningfully consult with experts, present experts at trial, and effectively challenge the State's experts." (Bolding and capitalization omitted.) We agree with the trial court that the defendant did not demonstrate that he was prejudiced by any alleged errors committed by trial counsel.

Here, trial counsel consulted with a medical and forensic expert whose opinions were consistent with those presented by the State's experts. The expert opined that the victim's injuries occurred within hours of the victim's presentation to medical personnel, but that more precise timing was not possible, and that it was not feasible to claim that the victim's injuries were accidental rather than inflicted. A defense expert, therefore, would have been redundant to the State's experts, as the timeline the State's experts established supported trial counsel's alternative perpetrator theory. Cf. State v. Whittaker, No. 2009-0844 (non-precedential order at 4), 2010 WL 11437244 (N.H. Nov. 24, 2010) (consulting an expert could have provided a basis to conclude that the defendant's impairment did not cause the accident, and defense counsel's failure to do so prejudiced the defendant).

We next consider the defendant's argument that trial counsel erred in failing to object to the State's "wholly improper" closing argument. The defendant argues that the State's closing improperly inflamed the passions and prejudices of the jury, included burden shifting and implicated the defendant's right to remain silent, used...