Cited by

It is, nevertheless, the obligation of the parties and their counsel, and not the trial court, to ensure that a proper record is preserved.

Although trial counsel’s failure to object to the admissibility of Sergeant Tibbetts’ statement, or to request a curative instruction after it was made, may be evidence of counsel’s inadequate performance, see State v. Staples, 121 N.H. 959, 964, 437 A.2d 266, 268-69 (1981), the defendant has failed to demonstrate that a failure to make such an objection or request on the record caused him actual prejudice at trial.

In regard to the lack of a transcript of the victim’s deposition, we have previously recognized that trial counsel’s failure to “take notes, to record the rulings made in chambers conference, or to oth *304 erwise protect the record, is in itself evidence of ineffective representation.” State v. Staples, 121 N.H. 959, 963, 437 A.2d 266, 268 (1981).

That decision is equally applicable in criminal cases, absent an interference with constitutional rights.

A defendant is constitutionally entitled to counsel who performs “within the range of competence required of attorneys representing defendants in criminal cases.” State v. Staples, 121 N.H. 959, 961, 437 A.2d 266, 267 (1981) (citations omitted); see also State v. Glidden, 127 N.H. 359, 361, 499 A.2d 1349, 1350 (1985).

Chapman v. California, 386 U.S. 18, 24 (1967); State v. Staples, 121 N.H. 959, 962, 437 A.2d 266, 267 (1981).

We have stated in prior cases that “[t]he constitutional standard by which we measure the performance of a lawyer in representing his client in a criminal case is ‘reasonable competence.’ ” State v. Perron, 122 N.H. 941, 946, 454 A.2d 422, 424 (1982) (citing State v. Staples, 121 N.H. 959, 961, 437 A.2d 266, 267 (1981)); see Strickland v. Washington, supra at 2065.

While both the State and Federal Constitutions guarantee a criminal defendant the right to effective assistance of counsel, State v. Staples, 121 N.H. 959, 961, 437 A.2d 266, 267 (1981); see N.H. Const, pt.

The constitutional standard by which we measure the performance of a lawyer representing his client in a criminal case is ‘reasonable competence.’” State v. Guaraldi, 124 N.H. at 98, 467 A.2d at 236 (quoting State v. Perron, 122 N.H. 941, 946, 454 A.2d 422, 424 (1982)); State v. Staples, 121 N.H. 959, 437 A.2d 266 (1981).

Our reading of the record before and after the point where the unrecorded bench conferences are indicated fails to disclose any possible prejudice redounding to the defendant from not having these conferences recorded.

Both the State and Federal Constitutions guarantee a criminal defendant the right to effective assistance of counsel.

State v. Staples, 121 N.H. 959, 962, 437 A.2d 266, 267 (1981): cf. Lupa v. Jensen, 123 N.H. 644, 646, 465 A.2d 513, 515 (1983).

Of course, the decedent had the right to expect that the defendant’s representation of him be within the range of competence required of attorneys representing criminal defendants, see State v. Staples, 121 N.H. 959, 961, 437 A.2d 266, 267 (1981); cf. Parker v. North Carolina, 397 U.S. 790, 797-98 (1970), and the defendant’s failure to exercise reasonable care, ordinary skill and knowledge might well give rise to a suit for legal malpractice.

State v. Staples, 121 N.H. 959, 962, 437 A.2d 266, 267 (1981); Chapman v. California, 386 U.S. 18, 24 (1967); see Wingate v. Wainwright, 464 F.2d at 214.

State v. Staples, 121 N.H. 959, 961, 437 A.2d 266, 267 (1981) (Staples II); see N.H. Const. pt.

State v. Staples, 121 N.H. 959, 962, 437 A.2d 266, 267 (1981); State v. Welch, 120 N.H. 687, 688, 421 A.2d 142, 142-43 (1980); State v. Scarlett, 118 N.H. 904, 906, 907, 395 A.2d 1244, 1246, 1247 (1978); see also State v. Thresher, 122 N.H. 63, 72, 442 A.2d 578, 583 (1982).