State of New Hampshire v. Walton Valentin

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0303, State of New Hampshire v. Walton
Valentin, the court on April 9, 2020, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Walton Valentin, appeals an order by the Superior Court
(Delker, J.) denying his motion for a new trial based upon ineffective assistance
of counsel. He contends that the trial court erred by finding that he did not
show that his trial counsel’s failure to obtain certain evidence actually
prejudiced his case. We confine our analysis to the defendant’s federal
constitutional claim because he has failed to cite a specific provision of the
State Constitution on appeal. See State v. Boggs, 171 N.H. 115, 120 (2018);
see also State v. Wilbur, 171 N.H. 445, 448 (2018) (stating that standard for
determining whether defendant received effective assistance of counsel is same
under both State and Federal Constitutions).

For the defendant to prevail on an ineffective assistance of counsel claim,
he must show that his counsel’s representation was constitutionally deficient
and that such deficient performance prejudiced the outcome of his case.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to establish either
element requires a finding that counsel’s performance was not constitutionally
defective. State v. Marden, 172 N.H. 258, 262 (2019).

Both elements of an ineffectiveness inquiry are mixed questions of law
and fact. Strickland, 466 U.S. at 698. 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 de novo the ultimate
determination of whether each element is established. Marden, 172 N.H. at
263. Because we conclude in this case that trial counsel’s alleged deficient
performance did not prejudice the outcome of the defendant’s case, we need
not address whether trial counsel’s performance was deficient. See id. at 262.

To establish that trial counsel’s alleged error prejudiced the outcome of
the defendant’s case, the defendant must demonstrate actual prejudice by
showing that there is a reasonable probability that the result of the proceeding
would have been different had competent legal representation been provided.
Id. at 263. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. The prejudice analysis considers the totality of
the evidence presented at trial. Id. Notably, here, because the judge who ruled
on the motion for a new trial also presided at the jury trial in which the
defendant was convicted, the trial court was in a better position than we are to
assess whether defense counsel’s performance prejudiced the defendant. Id.

In this case, the defendant was tried in Massachusetts on criminal
charges arising from his conduct toward the victim in the Commonwealth. He
was subsequently tried in New Hampshire on multiple criminal charges arising
from his conduct toward the victim in New Hampshire. The defendant
contends that his New Hampshire trial counsel was ineffective because he
failed to obtain two transcripts from the previous Massachusetts proceedings:
(1) one in which the Massachusetts court examined the victim, outside the
presence of the prosecutor and the defendant, to determine whether she had a
legitimate ground on which to assert her Fifth Amendment privilege and
decline to testify in the defendant’s Massachusetts criminal trial; and (2) one in
which a friend of the victim testified at the defendant’s Massachusetts criminal
trial. We assume, without deciding, that these transcripts were available and
admissible, and that the defendant’s arguments are preserved.

We first address whether trial counsel’s failure to obtain the transcript of
the victim’s colloquy with the Massachusetts judge regarding the basis for her
assertion of her 5th Amendment right created a reasonable probability that the
outcome of the defendant’s New Hampshire trial would have been different but
for the lack of this transcript. The defendant’s central contention is that the
victim’s New Hampshire testimony, during which she frequently stated that she
could not remember events, “supported the State’s theory that [her] testimony
was the product of memory issues related to domestic violence,” rather than
the defendant’s theory that she was trying to avoid “criminal liability for lying
to the police.” He argues that the Massachusetts transcript was essential to
establishing his theory. However, the victim’s statements to the Massachusetts
judge were comparable to her testimony in the New Hampshire trial.

The victim told the Massachusetts judge that she lied to the police when
she stated that the defendant kidnapped her. Specifically, she stated, “I lied, I
lied,” and “[h]e didn’t kidnap me. He didn’t.” She further agreed that she was
afraid that if she admitted lying to the police, she could be charged criminally.
Massachusetts declined to provide her with immunity.

Similarly, during the defendant’s New Hampshire trial, primarily in
response to cross-examination, the victim testified that: (1) she lied to the
police about why she went to the motel with the defendant; (2) she went to the
hotel room with the defendant willingly; (3) the threats she had previously told
police that the defendant used to force her to go to the hotel “didn’t happen”;
(4) she lied when she told the police that the defendant jumped into her vehicle;
(5) contrary to her previous statements, the defendant did not point a gun at
her and pull the trigger; (6) she told the police that the defendant did things

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that he did not actually do; (7) when speaking with police after the event, “[she]
was very nervous and [she] would say anything”; and (8) she decided to lie to
the police and then did lie to the police.

The victim further testified that: (1) when she wrote her statement for
the police, she was afraid that she would be arrested for falsely accusing the
defendant of kidnapping her; and (2) she had been given immunity because she
initially lied to police, and she would not have testified without it.

The defendant contends that the victim did not claim lack of memory
during the colloquy with the Massachusetts judge. The transcript reflects that
she never had an opportunity to do so. The judge asked her a few general
questions solely to establish the legitimacy of her refusal to testify pursuant to
the 5th Amendment; what details she did or did not recall about events were
beyond the scope of the colloquy.

The defendant’s comparison to Wilbur is inapposite. In that case,
defense counsel was ineffective when she failed to use the transcript of the
defendant’s interview with police to counter the State’s mischaracterization of
the defendant’s statements during the interview. Wilbur, 171 N.H. at 452. In
the case at hand, the transcript that the defendant faults trial counsel for not
obtaining was substantially similar to the victim’s testimony at trial. Although,
in its closing, the State encouraged the jury to consider the victim’s testimony
in light of the State’s theory of the case, the defendant does not contend that it
mischaracterized her testimony. Cf. State v. Brown, 143 N.H. 197, 199 (1998)
(stating defendant entitled to transcript of prior hearings when counsel clearly
demonstrated value of transcripts as tools for effective defense); State v.
Cofske, 129 N.H. 133, 135 (1987) (right to transcript of prior proceeding is not
absolute, but depends, in part, upon value of transcript to defendant).

The defendant argues that having the Massachusetts transcript: (1)
“would have effectively countered the expert testimony on domestic violence”
because in that transcript the victim admitted that she had lied to police; (2)
might have “produced a more persuasive defense opening statement using the
[victim’s] precise words”; (3) “would have changed the narrative of the closing
arguments” by rebutting the State’s argument that the victim “never said I
made the whole thing up”; (4) might have “broken down” the witness, causing
her to make other admissions and the jury to disbelieve other parts of her
testimony; and (5) “would have seriously undermined the State’s argument that
[the victim] had memory issues . . . [and] was minimizing the details of the
assault.” However, the limited purpose of the Massachusetts colloquy and the
similarities between the victim’s statements at that time and her testimony in
the New Hampshire trial belie these speculative assertions. See State v.
Cossette, 151 N.H. 355, 362 (2004) (stating that lack of additional evidence
admissible only to further impeach victim did not prejudice outcome).

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 The defendant faults the trial court’s analysis of whether his counsel was
ineffective for not considering his trial to have been a “close case.” He bases
this characterization on the following facts: (1) the jury deliberated for
approximately five hours on the Friday when they were given the case; (2) that
afternoon, in response to a note from the jury, the judge gave “a sort of
standard dynamite instruction” encouraging the jury to reach a verdict and
released them for the weekend to allow them “to essentially sleep on it”; and (3)
on Monday, the jury reached a verdict in approximately 90 minutes. However,
these facts equally support the conclusion that the jury was tired and
struggling with the multiple charges and limiting instructions, rather than that
it was divided on the outcome.

On this record, we conclude that the trial court did not err in deciding
that the defendant did not carry his burden to show that his counsel was
constitutionally ineffective because he failed to establish that the lack of the
transcript of the victim’s Massachusetts 5th Amendment colloquy prejudiced
the outcome of his New Hampshire trial. See Strickland, 466 U.S. at 687, 688.

We next address whether trial counsel’s failure to obtain the transcript of
the victim’s friend’s testimony in the Massachusetts criminal trial created a
reasonably probability that the outcome of the New Hampshire trial would have
been different but for the lack of this transcript. During the New Hampshire
trial, the victim testified that, after the defendant assaulted her, she had
telephoned a friend in Florida, who advised her to lie to the police. Previously,
the victim had told police that, during the assault, she had phoned her brother.
During the Massachusetts trial, another friend of the victim who lived in
Massachusetts testified that, after the assault, the victim called her and that
she took the victim home with her from the hospital.

The defendant contends that the Massachusetts friend’s testimony
conflicted with the victim’s New Hampshire testimony. However, in the New
Hampshire trial, the victim was not asked how many people she had called
during and after the assault, nor did the victim deny calling multiple people
after the assault. Accordingly, the Massachusetts friend’s testimony that the
victim called her is not inconsistent with the victim’s testimony that she called
the Florida friend.

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 On this record, we conclude that the trial court did not err in deciding
that the defendant did not carry his burden to show that his counsel was
constitutionally ineffective because he failed to establish that the lack of the
transcript of the victim’s friend’s Massachusetts testimony prejudiced the
outcome of his New Hampshire trial. See Strickland, 466 U.S. at 687, 688.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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