NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.state.nh.us/courts/supreme.htm
THE SUPREME COURT OF NEW HAMPSHIRE
THE STATE OF NEW HAMPSHIRE
Argued: September 11, 2002
Opinion Issued: December 16, 2002
Philip T. McLaughlin, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Desfosses Law Firm, of Portsmouth (Philip Desfosses on the brief and orally), for the defendant.
Dalianis, J. The defendant, Steven Roy, appeals a Superior Court (McHugh, J.) order denying his motion for a new trial based upon a claim of ineffective assistance of counsel. We affirm.
This is the second time this case has reached us on appeal. See State v. Roy, 140 N.H. 478 (1995) (Roy I). In summarizing the relevant facts of this case, we incorporate by reference the facts detailed in Roy I.
In Roy I, we affirmed the trial courts refusal to grant a mistrial after the prosecution questioned its lead investigator regarding inadmissible statements made by C.J. Kelley, a non-testifying witness. Id. at 483. We rejected the defendants claim that the questioning improperly bolstered the prosecutions chief witness, Maria Zarate, and ruled that because defense counsel had referred to the inadmissible statements during opening arguments and cross-examination, the questioning was not prejudicial. Id.
Following our decision in Roy I, the defendant filed a motion for a new trial on the grounds of ineffective assistance of counsel, arguing that his counsels references to the inadmissible statements improperly waived his constitutional right to confrontation. The trial court denied the motion, finding that: (1) the defendants constitutional right to confrontation was not waived by counsels conduct; and (2) counsels trial strategy was reasonable. This appeal followed.
To successfully assert a claim for ineffective assistance of counsel, a defendant must first show that counsels representation was constitutionally deficient and, second, that counsels deficient performance actually prejudiced the outcome of the case. State v. Seymour, 140 N.H. 736, 748, cert. denied, 519 U.S. 853 (1996). We have recognized that "broad discretion is permitted trial counsel in determining trial strategy, and the defendant must overcome the presumption that counsels trial strategy was reasonably adopted." State v. Fennell, 133 N.H. 402, 409-10 (1990). The standard for determining whether counsels performance is constitutionally deficient is the same under both the State and Federal Constitutions. See State v. Dewitt, 143 N.H. 24, 29 (1998). Therefore, we will examine the constitutional competency of counsels performance under the State Constitution only, and rely upon federal case law only for guidance. See State v. Ball, 124 N.H. 226, 231-32 (1983).
The defendant claims that counsel impermissibly waived his right to confrontation by referring to inadmissible statements by C.J. Kelley, a non-testifying witness, during trial. Since the defendant did not expressly authorize the waiver, he argues that counsels conduct was unreasonable and therefore constitutionally deficient. Cf. State v. Anaya, 134 N.H. 346, 353-54 (1991). This argument fails, however, because the defendant was not deprived of his constitutional right to confront C.J. Kelley.
To make his claim, the defendant relies upon Bruton v. United States, 391 U.S. 123 (1968), in which the United States Supreme Court held that, in a joint trial, the admission of a non-testifying co-defendants inadmissible confession, which incriminated the defendant, violated his right to confrontation. Id. at 125-26. The Court held that such a confession was so "powerfully incriminating" and "devastating to the defendant" that a jury instruction that the jurors not consider the inadmissible confession against the defendant was insufficient to remove the evidence from the jurors minds. Id. at 135-36. Thus, the Court created a narrow exception to the rule that a proper jury instruction can cure the prejudice of inadmissible evidence having been presented to the jury. See Richardson v. Marsh, 481 U.S. 200, 207 (1987).
The defendant argues that Bruton errors occurred when counsel referred to C.J. Kelleys statement during opening argument. Assuming without deciding that Bruton applies when the defendant and the alleged accomplice are tried separately, contra United States v. Gomez, 276 F.3d 694, 699 (5th Cir. 2001), or when the defendant rather than the State references the inadmissible confession, we find no such errors.
As an initial matter, counsels opening statement is not evidence. State v. Martin, 138 N.H. 508, 516 (1994). While there may be references made during the opening statement that are so prejudicial that a defendants constitutional rights are implicated, see Frazier v. Cupp, 394 U.S. 731, 736 (1969), we do not construe counsels references to C.J. Kelleys statement to be such a case. Counsel neither read the statement nor summarized its contents. Counsel used the references to bolster the defense theory that C.J. Kelley and Zarate had conspired to implicate the defendant. We do not believe that these limited references constitute the sort of powerfully incriminating evidence at issue in Bruton.
The defendant further argues that a Bruton error occurred when counsel wrote on an easel during the cross-examination of Detective Kelley to demonstrate that the defendant was arrested after C.J. Kelleys interview with the police. This argument fails because counsel merely showed the jury the timing of C.J. Kelleys police interview and the defendants arrest and did not reference any portion of C.J. Kelleys statement. Finding no Bruton error, we apply the general rule that jurors follow instructions. See State v. Fortier, 146 N.H. 784, 793 (2001). Accordingly, because the jury was instructed to disregard references to C.J. Kelleys statement, the defendant was not deprived of his right to confrontation.
The defendant also asserts that his counsels trial strategy was deficient. In resolving whether a counsels strategy was reasonably adopted, we will not disturb the factual findings of the trial court "unless they are not supported by the evidence or are erroneous as a matter of law." Reid v. Warden, N.H. State Prison, 139 N.H. 530, 532 (1995) (quotation omitted).
The theory of defense was that C.J. Kelley and Zarate committed the murder and later conspired to implicate the defendant. Roy I, 140 N.H at 480. Counsels references to C.J. Kelleys involvement were made to establish the conspiracy theory link between him and Zarate. See id. at 483. The trial court determined that this strategy was not only reasonable, but possibly counsels only viable means of defending her client in light of the evidence against him. The defendant does not offer any alternatives that render counsels choice of strategy unreasonable. Under the circumstances, we conclude that the defendant has failed to overcome the presumption that counsels trial strategy was reasonably adopted.
Because the defendant has not demonstrated that his counsels performance was deficient, we need not address whether he was actually prejudiced by counsels conduct. See Dewitt, 143 N.H. at 32.
BROCK, C.J., and NADEAU, J., concurred.