State of New Hampshire v. Tommy Page

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0536, State of New Hampshire v. Tommy
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

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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 personal attacks on defense counsel, and vouched
for witnesses. The defendant contends that his counsel’s failure to object
during the State’s closing prejudiced him because “the State’s closing was the
last word on the evidence before jury instructions.” We disagree and conclude
that, even if the State made improper statements during closing and trial
counsel erred in their failure to object, such error was not prejudicial. See
Labrie, 172 N.H. at 237.

Trial counsel relied upon the very same expert testimony that the State
referenced in its closing to support its alternative perpetrator theory — that

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Sylvester caused the victim’s death in a fit of rage. The defendant now alleges
that his counsel should have objected to portions of the State’s closing
argument that referred to the State’s expert testimony as “unopposed,”
“uncontradicted,” and “accurate and credible” because such statements shifted
the burden onto the defense and improperly vouched for its witnesses. Given
that the defense’s theory of the case relied upon this expert testimony, even if
the defense had objected to the State’s closing remarks regarding its expert
witnesses, we cannot conclude that there is a reasonable probability that the
result of the trial would have been different.

Regarding the remainder of the defendant’s arguments that the State’s
closing was improper and that defense counsel erred in their failure to object,
we conclude that any such error did not prejudice the outcome of the case
because the evidence of the defendant’s guilt was overwhelming. See Page, 172
N.H. at 57-58; cf. State v. Stillwell, 172 N.H. 591, 609-11 (2019) (concluding
that the prosecutor’s improper statements about the defendant’s guilt or
credibility, when considered “within the context of the case,” were not
“sufficiently egregious so as to require the trial court to intervene,” and that the
prosecutor’s presumably improper attack on defense counsel was not
prejudicial given the “overwhelming evidence of the defendant’s guilt”); State v.
Hearns, 151 N.H. 226, 233-34 (2004) (concluding that although the
prosecutor’s statement improperly shifted the burden of proof onto the
defendant, “because the evidence of guilt was overwhelming, it is unlikely that
any prejudice surviving the [jury] instruction affected the outcome of the case”).

Based upon Sylvester’s testimony, the testimony of witnesses who saw
her during the afternoon of the murder, and other evidence, including
corroborating video surveillance, Sylvester was away from the residence from
approximately 12:30 p.m. to 2:30 p.m. Page, 172 N.H. at 57. At trial, it was
undisputed that the defendant was alone with the victim during this
timeframe. See id. at 48. Photographs taken with the defendant’s cell phone
between 1:09 p.m. and 1:14 p.m. on November 13 depict the victim with
significant head injuries, and the jury could have inferred that the victim was
already unconscious by that time. Id. at 57. From this evidence, the jury
could have also inferred that the victim had sustained critical, if not lethal,
injuries before Sylvester returned to the residence. Id.; see also id. at 58
(noting that the State’s evidence included “photographic evidence from which
the jury could have found that the defendant had already fatally injured the
victim before Sylvester returned home”). Photographs also showed the
defendant sexually abusing the victim between 1:09 p.m. and 1:14 p.m. Id. at
57. Finally, the defendant gave the police implausible and inconsistent
accounts of what had happened to the victim, from which the jury could infer a
consciousness of guilt. Id.

Next, the defendant argues that trial counsel erred by failing to present a
consistent theory of the case. The defendant contends that trial counsel

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shifted the narrative when counsel told the jury in opening that Sylvester
inflicted the injuries upon the victim because she was angry that she could not
fill a prescription, but then told the jury in closing that Sylvester inflicted the
injuries because she was angry that the victim may have wet the bed. The trial
court found, and the record supports, however, that “the general theme of
defense [counsel’s] arguments, overall, remained consistent during trial— that
[Sylvester], acting in frustration and anger returned home and assaulted [the
victim] resulting in his death.” Accordingly, we conclude that trial counsel did
not present a shifting narrative.

Lastly, the defendant argues that the “cumulative prejudicial effect of all
such errors reinforces the constitutional necessity of a new trial.” (Bolding and
capitalization omitted.) Given the overwhelming nature of the evidence of the
defendant’s guilt, however, any cumulative impact from the alleged errors did
not prejudice the outcome of the case. See Page, 172 N.H. at 57-58.

Accordingly, for the foregoing reasons, we conclude that the defendant
did not demonstrate that his trial counsel was ineffective. We have considered
the defendant’s remaining arguments and have determined that they do not
warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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