State of New Hampshire v. Mark Lemay

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0531, State of New Hampshire v. Mark
Lemay, the court on March 19, 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 this case by way of this order. See Sup. Ct. R. 20(2).
The defendant, Mark Lemay, appeals the denial of his motion for a new trial by
the Superior Court (Delker, J.). We affirm.

The defendant was charged with fourteen crimes against the victim, his
intimate partner, arising out of two episodes. The first occurred in Fremont on
September 25-26, 2016, and resulted in four charges of aggravated felonious
sexual assault (AFSA) and two charges of domestic violence simple assault.
The second occurred in Salem on October 18, 2016, and resulted in two
charges of AFSA, one charge of second degree assault, three charges of
domestic violence simple assault, one charge of criminal threatening, and one
charge of obstructing the report of a crime. The defendant moved to join all
charges in one trial. The defendant was acquitted on the Salem charges of
domestic violence simple assault and obstructing the report of a crime, but was
convicted on all other charges.

Thereafter, the defendant filed a motion for a new trial alleging, inter alia,
that trial counsel had provided ineffective assistance by choosing to join the
Fremont and Salem charges for trial. Following a hearing, the trial court
denied the motion with respect to that allegation. This appeal followed.

The defendant's claim of ineffective assistance of counsel rests upon both
the State and Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S.
CONST. amends. VI, XIV. The standard for determining whether a defendant
has received ineffective assistance of counsel is the same under both the State
and Federal Constitutions. See State v. Kepple, 155 N.H. 267, 269 (2007);
Strickland v. Washington, 466 U.S. 668, 687 (1984). Both constitutions
guarantee a criminal defendant reasonably competent assistance of counsel.
See State v. Cable, 168 N.H. 673, 680 (2016). 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 trial.
Id.
 To meet the first prong of this test, the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness. We judge the reasonableness of counsel’s conduct
based upon the facts and circumstances of that particular case, viewed
from the time of that conduct. As we have explained, judicial scrutiny of
counsel’s performance must be highly deferential; a fair assessment of
attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the inherent difficulties in
making this evaluation, there is a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.
Because the proper measure of attorney performance remains simply
reasonableness under prevailing professional norms, to establish that his
trial attorney’s performance fell below this objective standard of
reasonableness, the defendant must show that no competent lawyer
would have engaged in the conduct of which he accuses his trial counsel.

To meet the second prong, the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the trial would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the trial’s outcome.
The prejudice analysis considers the totality of the evidence presented at
trial. Both the performance and prejudice prongs of the ineffectiveness
inquiry are mixed questions of law and fact. 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. A failure
to establish either prong requires a finding that counsel’s performance
was not constitutionally defective.

State v. Newton, 175 N.H. 279, 285 (2022) (citations omitted).

Here, we need not repeat the facts, as they are set forth in the well-
reasoned order of the trial court. As the trial court found, by joining the matters
for trial, the defendant was able to use exculpatory evidence from both events,
with the hope that the combined impact of that evidence “would have a
cumulative effect of impeaching [the victim’s] credibility that would not have been
available if each case was tried separately.” The defendant argues that the
decision to join the charges allowed the State to introduce prejudicial evidence
that outweighed the benefits that flowed from joinder. Keeping in mind that
scrutiny of counsel’s performance is highly deferential, however, we agree with
the trial court that, “[g]iven that [the victim’s] credibility was a central issue at
trial, this was a viable strategic decision.”

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 The defendant having failed to establish the first prong of the test for
ineffective assistance, we need not address the second prong. See id.

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Timothy A. Gudas,
Clerk

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