State v. Jason N. Candello

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire
Nos. 2014-0370
2016-0096

THE STATE OF NEW HAMPSHIRE

v.

JASON N. CANDELLO

Argued: February 16, 2017
Opinion Issued: July 7, 2017

Joseph A. Foster, attorney general (Sean P. Gill, assistant attorney
general, on the brief and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

HICKS, J. The defendant, Jason N. Candello, appeals his conviction by a
jury for second-degree assault. See RSA 631:2, I (2016). He argues that the
State offered insufficient evidence to prove that the victim suffered serious
bodily injury. He also appeals the Trial Court’s (Kissinger, J.) denial of his
motion for a new trial based upon ineffective assistance of counsel. He
contends that his trial counsel (hereinafter referred to as trial counsel or
defense counsel), who is not his appellate counsel, rendered constitutionally
ineffective assistance by allowing the defendant to make the decision to admit
certain audio recordings and by failing to cross-examine the victim regarding
prior inconsistent statements. We affirm.

I. Brief Procedural History

The defendant was indicted on one count of second-degree assault
against the victim, his father, and on one count of being a felon in possession
of a deadly weapon. The second-degree assault indictment alleged that the
defendant recklessly “caused serious bodily injury to [the victim] in the form of
broken ribs and splenic laceration.” At the close of the State’s case, the
defendant moved to dismiss all of the charges. The trial court denied his
motion, and the jury convicted him of the second-degree assault charge and
acquitted him of the felon in possession of a deadly weapon charge.

Thereafter, the defendant directly appealed his second-degree assault
conviction. After doing so, he filed a motion for new trial in the trial court
based upon alleged ineffective assistance of counsel. Following a hearing, the
trial court denied his motion. The defendant then filed a discretionary appeal
of that ruling. We consolidated the defendant’s direct and discretionary
appeals.

II. Direct Appeal

We first address the defendant’s direct appeal of his conviction for
second-degree assault, in which he argues that the State presented insufficient
evidence to demonstrate that the victim suffered serious bodily injury.
Because a challenge to the sufficiency of the evidence raises a claim of legal
error, our standard of review is de novo. State v. Cable, 168 N.H. 673, 677
(2016).

To prevail upon his challenge to the sufficiency of the evidence, the
defendant must establish that no rational trier of fact, viewing all of the
evidence and all reasonable inferences from it in the light most favorable to the
State, could have found guilt beyond a reasonable doubt. State v. Dorrance,
165 N.H. 162, 164 (2013). “Whether the victim’s injuries constituted serious
bodily injury is a question of fact for the jury to decide.” Id. (quotations,
brackets, and emphasis omitted).

The controlling statute, RSA 631:2, I(a), provides that a person is guilty
of second-degree assault if he “[k]nowingly or recklessly causes serious bodily
injury to another.” “‘Serious bodily injury’ means any harm to the body which
causes severe, permanent or protracted loss of or impairment to the health or
of the function of any part of the body.” RSA 625:11, VI (2016). In this case,
the indictment alleged that the defendant recklessly “caused serious bodily
injury to [the victim] in the form of broken ribs and splenic laceration.”

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 The defendant contends that there was insufficient evidence that the
victim suffered either “severe or protracted impairment.” He maintains that,
although the victim “received minimal medical treatment and experienced some
pain, there was no evidence that the pain impaired his physical abilities for a
protracted period of time or that any impairment was severe.” We disagree that
there was insufficient evidence from which a rational trier of fact could
conclude that the victim’s injuries were severe.

The jury heard testimony from the victim that the defendant “punch[ed]”
the victim “[q]uite hard” eleven or twelve times. The victim testified that the
defendant “hit me two or three, four times in the head, [a] couple [of times] in
the shoulders, around the neck area, and then he went down my ribcage,
hitting both sides.” He stated that after the assault his rib cage was sore and
that he “continued to work the next week” until he “got up one morning” and
was in such pain that he “couldn’t make it to the end of the bed.” The victim
testified that he then telephoned a friend “for help” and went to the emergency
room, where it was discovered that he had a ruptured spleen and fractured
ribs. The victim was subsequently admitted to the hospital. The investigating
officer testified that when he spoke with the victim, the victim was in the
“intensive-care unit.”

The jury also heard the trauma surgeon testify that he was “called by the
emergency medicine physician who,” after seeing the victim, “felt that he
should be hospitalized.” The surgeon testified that the victim had “two rib
fractures,” “bruising over his left flank,” and “a grade 4 splenic laceration,
which is an injury to the spleen, . . . significant enough to potentially cause . . .
[e]nough blood loss to require an operation.” He stated that the victim’s red
blood cell count was “substantially lower than normal.”

The surgeon explained that the victim suffered from a “subcapsular
splenic hematoma,” which means that “the spleen [had] received injury to its
structure. And in this case, a large amount of blood [had] escaped from the
spleen to an area underneath what [is called] the splenic capsule or outside
lining of the spleen.” He stated that “the bleeding from the spleen actually
caused the spleen to double in size. There was also a fair amount of blood
inside his abdominal cavity, so it was -- you know -- [a] pretty big injury.” He
stated that a spleen laceration “can be severe” and, “[i]n the [victim’s case,]
there was the potential that he would have to go to the operating room and
have his spleen removed.” He testified that the victim was admitted to the
hospital for “three days” and treated with “[r]est, observation, [and a blood]
transfusion.” He stated that it was “[u]nknown” whether the victim would have
died without the blood transfusion, but, in his opinion, “probably not.”

Viewing this evidence and all inferences to be drawn from it in the light
most favorable to the State, we hold that a rational juror could have found,
beyond a reasonable doubt, that the defendant caused the victim to suffer

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serious bodily injury. See State v. Scognamiglio, 150 N.H. 534, 537 (2004)
(holding that rational juror could have found defendant caused serious bodily
injury where victim had broken nose, swollen discolored eyes, clogged
breathing passages, and sinus infection); cf. People v. Daniels, 240 P.3d 409,
410, 412 (Colo. App. 2009) (Graham, J., specially concurring) (concluding that
victim suffered serious bodily injury where “victim suffered a grade three
laceration or rupture of the spleen and was bleeding internally”). A rational
juror could have found that two fractured ribs along with a grade four
laceration to the spleen, which required a three-day hospital stay and a blood
transfusion, constitute “severe . . . impairment to the health or of the function
of any part of the body.” RSA 625:11, VI.

Because we conclude that the evidence was sufficient to support a
finding that the victim’s injuries constituted a “severe” impairment, we need
not address the defendant’s argument that there was insufficient evidence that
the victim’s injuries constituted a “protracted” impairment. See RSA 625:11,
VI; cf. State v. MacArthur, 138 N.H. 597, 600 (1994) (explaining that RSA
625:11, VI does not require permanent injury inasmuch as it defines “serious
bodily injury” in the disjunctive: “any harm to the body which causes severe,
permanent or protracted loss of or impairment to the health or of the function
of any part of the body” (quotations omitted)). Thus, we hold that the State
presented sufficient evidence to support a finding of serious bodily injury.

III. Discretionary Appeal

We next consider the defendant’s discretionary appeal of the trial court’s
denial of his motion for a new trial based upon alleged ineffective assistance of
counsel. 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. We first address the defendant’s claim under the
State Constitution and rely upon federal law only to aid our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).

Both the State and Federal Constitutions guarantee a criminal defendant
reasonably competent assistance of counsel. Cable, 168 N.H. at 680; see
Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail upon his
claim, 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.” Cable, 168 N.H. at 680
(quotation omitted). A failure to establish either prong requires a finding that
counsel’s performance was not constitutionally defective. State v. Collins, 166
N.H. 210, 212 (2014).

To satisfy the first prong of the test, the performance prong, the
defendant must show that trial counsel’s representation fell below an objective
standard of reasonableness. Id. To meet this prong of the test, the defendant

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must show that trial counsel made such egregious errors that he failed to
function as the counsel the State Constitution guarantees. State v. Thompson,
161 N.H. 507, 529 (2011). We afford a high degree of deference to the strategic
decisions of trial counsel, bearing in mind the limitless variety of strategic and
tactical decisions that counsel must make. Id. The defendant must overcome
the presumption that trial counsel reasonably adopted his trial strategy. Id.
Accordingly, “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.” Id. (quotation and brackets omitted);
see Strickland, 466 U.S. at 689.

“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 proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Cable, 168
N.H. at 681 (quotations and citations omitted). “In making this determination,
we consider the totality of the evidence presented at trial.” Collins, 166 N.H. at
213 (quotation omitted).

“Both the performance and prejudice prongs of the ineffectiveness
inquiry are mixed questions of law and fact.” Cable, 168 N.H. at 681
(quotation omitted). “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. (quotation omitted).

The defendant argues that his trial counsel rendered ineffective
assistance in two respects. First, he asserts that trial counsel’s representation
was constitutionally defective because counsel allowed the defendant to make
the decision to admit audio recordings of two telephone calls between the
defendant and his mother recorded when the defendant was in jail. Second,
the defendant contends that trial counsel was ineffective because he did not
cross-examine the victim regarding certain prior inconsistent statements. We
address each argument in turn.

A. Admission of Audio Recordings

The defendant first contends that trial counsel rendered ineffective
assistance by allowing him to make the decision to admit two audio recorded
telephone calls. During trial, the State questioned one of the law enforcement
officers involved in the case about certain telephone calls between the
defendant and his mother that occurred while the defendant was in jail
following the assault. The State played a portion of one of the recorded calls in
which the defendant stated, “I told you I’m not gonna let him yell in my face the
rest of my life.” The State asked the detective whether the defendant was

5
referring to his father in the statement. Defense counsel objected, and the
following exchange took place:

[Defense counsel]: I know that the State’s just trying to save
time, but I don’t think it’s proper for him to base an opinion -- you
know, give his opinion to the jury about what this is about or, you
know, what it was in regards to. Want to play the whole tape, then
we play the whole tape.

[Prosecutor]: If he wants us to play the whole tape, I will
play both tapes. There’s a lot in there that I assume he doesn’t
want in, but if he wants the whole tape, I’ll play the whole tape.

THE COURT: Why don’t you talk to [the defendant], your
client, and see if he wants -- I think your objection is well founded.
The question is, is that really what you want to have happen. So --
if it is, then I’m going to grant that request, but I haven’t heard the
-- I haven’t heard anything more than this, so I don’t know -- I
assume you know what’s -- what -- the remainder that’s on there.
So if that’s really your request, then -- then, I just want to make
sure that that’s your client’s specific request that we do that.

[Defense counsel]: Yeah, I’ll stop.

THE COURT: Thank you.

[Defense counsel]: Can I have a minute?

THE COURT: Absolutely.

(Pause)

[Defense counsel]: Yes, he does. He would prefer playing the
entire conversation.

THE COURT: Okay. So really the request is that -- what
brought us here is the specific objection to the last question. Do
you want to press that question?

[Prosecutor]: Let me ask this. Are we going to play the full
two phone calls?

[Defense counsel]: Most likely, yeah. That’s what he wants.

....

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 THE COURT: I think -- I think -- you’re saying it’s important
from your perspective that the context be put on; is that your
request --

[Defense counsel]: That’s my client’s position, is that he
would prefer that the entirety be played.

THE COURT: All right. We’ll do that. We’ll do that.

(Emphases added.)

Thereafter the State played the two audio recordings of the telephone
conversations between the defendant and his mother. The recordings included
statements by the defendant referencing the assault for which he was being
tried and his rationale for the assault, as well as his mental health issues and
potential drug use. The recordings also included threatening and homophobic
statements made by the defendant. In addition, during the telephone calls, the
defendant made derogatory remarks about his father.

Following the hearing on the defendant’s motion for a new trial, the trial
court found that “playing the otherwise inadmissible recording was very
damaging to [the defendant]. If [trial counsel], acting alone, had introduced the
full recording as evidence, it would fall below the established standards for
reasonable attorney conduct.” However, the court found that

[t]hat is not what happened here. [Trial counsel] conferred with
[the defendant] after the State offered to play the full recording.
The record is clear that [the defendant] decided to play the full
recording, even after the Court asked again if that was really what
the defense wanted to do. The question is whether [trial counsel’s]
conduct in following his client’s specific request fell below the
established standard of reasonableness.

The court concluded that trial counsel “was not required to override [the
defendant’s] wish to have the full recording played in order to remain
objectively reasonable as counsel.” Thus, the court ruled that the defendant
had failed to prove that his trial counsel’s conduct fell below an objective
standard of reasonableness.

The defendant contends that the trial “court erred in finding that
counsel’s performance did not fall below the established standards for
reasonable attorney conduct” because, here, “counsel did not adequately advise
[the defendant] before allowing him to make the decision about whether the full
recordings would be played,” nor did counsel “seek to mitigate the damage from
the full recordings by asking the court for an instruction limiting the jury’s use
of the statements and forbidding their use as character or propensity

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evidence.” Rather, the defendant claims that trial “counsel blindly followed
[his] wish that the calls be heard in full.” (Quotation omitted.) In doing so, the
defendant maintains that trial counsel “abdicated his responsibility to make a
critical strategic decision to his uninformed and uncounseled client” and,
therefore, “[f]or this decision, [the defendant] essentially represented himself.”

We recognize that the preferable course in a challenge based upon
ineffective assistance of counsel is to require the defendant to prove as a
threshold matter that the alleged error by counsel prejudiced his case. State v.
Wisowaty, 137 N.H. 298, 302 (1993). As we have explained, “[i]f the defendant
cannot demonstrate such prejudice, we need not even decide whether counsel’s
performance fell below the standard of reasonable competence.” Id. (quotation
omitted). We have also recognized, however, that courts have the flexibility to
adopt the analytic approach that promotes clarity and ease of review. Id. Here,
we find it helpful to address the merits of the defendant’s argument, and
consider the issue of prejudice only if there is a legitimate question as to
whether counsel’s conduct was indeed deficient. See id.

“An attorney undoubtedly has a duty to consult with the client regarding
‘important decisions,’ including questions of overarching defense strategy.”
Florida v. Nixon, 543 U.S. 175, 187 (2004). “That obligation, however, does not
require counsel to obtain the defendant’s consent to every tactical decision.”
Id. (quotation omitted). In that respect, we agree with the defendant that “[t]he
decision of whether to object to inadmissible evidence is an aspect of trial
strategy that counsel may make on behalf of a defendant.” State v. Rawnsley,
167 N.H. 8, 13 (2014). Nonetheless, we do not believe that this means that
counsel is required to ignore the defendant’s request to allow the admission of
such evidence. As the Supreme Court stated in Strickland, “[t]he
reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions. Counsel’s actions are
usually based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant.” Strickland, 466
U.S. at 691. This is so because “trial counsel, while held to a standard of
‘reasonable effectiveness,’ is still only an assistant to the defendant and not the
master of the defense.” Mulligan v. Kemp, 771 F.2d 1436, 1441 (11th Cir.
1985).

“Because we recognize that a defendant must have this broad power to
dictate the manner in which he is tried, it follows that, in evaluating strategic
choices of trial counsel, we must give great deference to choices which are
made under the explicit direction of the client.” Id. Accordingly, “if [counsel] is
commanded by his client to present a certain defense, and if he does
thoroughly explain the potential problems with the suggested approach, then
his ultimate decision to follow the client’s will may not be lightly disturbed.” Id.
at 1442; see also United States v. Weaver, 882 F.2d 1128, 1140 (7th Cir. 1989)
(“Where a defendant, fully informed of the reasonable options before him,

8
agrees to follow a particular strategy at trial, that strategy cannot later form the
basis of a claim of ineffective assistance of counsel.”); State v. Brown, 160 N.H.
408, 416 (2010) (concluding that trial counsel did not act unreasonably where
“counsel consulted with his client and they chose to pursue an all-or-nothing
strategy, eliminating the possibility of a compromise verdict”).

In this case, trial counsel testified at the hearing on the defendant’s
motion for a new trial that he recalled having “a brief discussion [with the
defendant] about whether or not . . . playing the entire phone call was a good
idea or not.” Counsel stated that, in his opinion, “it was not,” however, he
believed “that [the defendant] wanted to play the entire tape.” He testified that
he listened to the tapes prior to trial and that he believed “that [the defendant]
said that he had listened to them.” He agreed with the prosecutor that,
although he had reservations about playing the recordings, he let the
defendant “ultimately make the call.” He explained:

I think in my opinion and my experience and training that
there’s times during a trial or during any part of a case when you
make certain strategic and tactical decisions. And whenever
possible you want to have your client involved in the conversation
and in the decision.

And ultimately it’s my opinion that I err to the side of doing
what my client wishes to do so long as there’s been, you know,
kind of full disclosure and an opportunity to, you know, to have a
conversation about it, to let him know the merits and demerits of
doing so, of taking any particular tactic or strategy.

Trial counsel later agreed with the counsel representing the defendant at
the hearing that, if it had been his choice, he would not have played the entire
recordings, but that he consulted with the defendant and let him make the
decision. He further stated:

If [the defendant] had told me that he did not know what was on
[the recordings], that I would not have -- I don’t believe that I
would have had them played. I would have, you know, asked for a
recess where we could have listened to them again. That’s what
typically would have happened, but I don’t remember.

The defendant did not testify at the hearing.

Under these circumstances, we cannot say that counsel’s decision to
allow the defendant to make the decision to admit the recordings was so
egregious that he failed to function as the counsel the State Constitution
guarantees. See Cable, 168 N.H. at 680; United States v. Mathis, No. CRIM.
A.97-334-04(CK, Civ.A.02-095(CKK), 2005 WL 692082, at *9 (D.D.C. 2005)

9
(“Circuit courts confronted with cases like this one at bar have also refused to
characterize a tactic pursued by an attorney at her client’s behest as
‘unreasonable.’”); see also Parker v. State, 510 So. 2d 281, 287 (Ala. Crim. App.
1987) (concluding that, where defendant had participated in decision to not
submit jury instruction on lesser-included offense, court could not say that
counsel’s decisions were unreasonable and “so serious that counsel was not
functioning as the ‘counsel’ guaranteed by the Sixth Amendment” (quotation
and ellipsis omitted)). On the record before us, we cannot conclude, as the
defendant suggests, that counsel abdicated his role by failing to “adequately
advise [the defendant] before allowing him to make the decision about whether
the full recordings would be played.” Contrary to the defendant’s suggestion,
this is not a case where the defendant merely acquiesced to a decision made by
his trial counsel. Rather, trial counsel’s uncontradicted testimony at the
hearing supports a finding that counsel did, in fact, consult with the defendant
regarding whether it was a good idea to play the recordings and that the
defendant chose to admit the recordings. See Cable, 168 N.H. at 683-84
(stating that court could not conclude from record that defense counsel’s
conduct fell below an objective standard of reasonableness where defense
counsel had, in fact, done what defendant claimed he had not done).
Moreover, counsel testified that he believed the defendant said that he had
listened to the recordings and, although counsel could not recall, he stated
that, if the defendant had told him that he did not know what was on the
recordings, counsel did not believe he would have had them played to the jury,
and he would have asked for a recess to allow the defendant to listen to the
recordings.

Even assuming, as the defendant contends, that, at trial, “counsel
[initially] suggested that the full recording be played before he was given an
opportunity to consult with [the defendant],” the record shows that counsel
thereafter did consult with the defendant and that the defendant’s choice was
to play the recordings. “Cutting through the smoke, it is apparent that we are
being asked to permit a defendant to avoid conviction on the ground that his
lawyer did exactly what he asked him to do. That argument answers itself.”
United States v. Masat, 896 F.2d 88, 92 (5th Cir. 1990).

Moreover, it is noteworthy that, at trial, trial counsel utilized certain
statements made by the defendant in one of the recordings in his cross-
examination of a detective involved in the case. Further, in his closing
argument, trial counsel relied upon one of the statements made by the
defendant in the same recording to argue that the defendant should be
acquitted of the felon in possession of a deadly weapon charge. The jury
thereafter acquitted the defendant of that charge. Thus, although the decision
to admit the recordings introduced detrimental evidence, trial counsel utilized
the recordings as part of his trial strategy.

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 Based upon the foregoing, we hold that the defendant has failed to
overcome the presumption that, under the circumstances, his trial counsel
acted reasonably. See Cable, 168 N.H. at 680; see also Mathis, 2005 WL
692082, at *9 (determining that counsel did not act “outside the bounds of
reasonable professional assistance when she allowed Defendant’s informed
opinion to ‘trump’ her own with respect to calling” a witness).

B. Inconsistent Statements

The defendant next argues that his trial counsel was ineffective for failing
to cross-examine the victim about prior inconsistent statements that the victim
made regarding the assault. He contends that “counsel’s choice to not
question [the victim] about his prior statements appears to have been the
result of a misunderstanding of the law” and, therefore, his performance was
objectively unreasonable. He further maintains that counsel’s failure to cross-
examine the victim prejudiced his case because the victim was “the State’s key
witness” and “[e]ven minor inconsistencies in his account of the assault would
have affected the jury’s” decision.

During trial, defense counsel asked the victim whether he remembered
speaking to an investigator. The State objected, arguing that the question
“call[ed] for hearsay.” Defense counsel informed the court that he intended to
point out inconsistent statements. The trial court ruled that “if [the victim]
said things to [the investigator] inconsistent with his testimony [at trial], it’s
proper to examine him about those things.” Defense counsel then asked to
confer with the defendant, and, after he did so, he withdrew “from that line of
questioning.”

Defense counsel later called the investigator as a witness. When counsel
began asking about statements that the victim made to the investigator about
the assault, the State objected. The State argued that there was an insufficient
foundation for the statements to be introduced because the victim had not
been given the opportunity to address the statements and, therefore, the
statements would be hearsay. The trial court agreed, and sustained the State’s
objection because the victim “was not asked about his statements to this
investigator.” Defense counsel then sought to recall the victim, but because
the State had excused him and he was no longer under subpoena, the court
denied his request.

In his request for a new trial, the defendant argued that trial counsel was
ineffective because he failed to question the victim about inconsistent
statements the victim allegedly made regarding the location of the assault and
whether the victim fell to the floor during the assault. At the hearing on the
defendant’s motion for a new trial, defense counsel could not recall why he
withdrew from questioning the victim about his statements to the investigator
and whether it resulted from his conversation with the defendant. He agreed

11
with the prosecutor, however, that the victim’s testimony was not, in fact,
inconsistent with respect to whether he fell to the floor during the assault. He
further recalled the layout of the victim’s home in which the assault occurred.

The trial court found that “[t]here [was] no reasonable probability that
[trial counsel’s] decision to not cross-examine [the victim] either initially or
have him available for recall would have changed the outcome.” Thus, the
court found that trial counsel’s decision not to cross-examine the victim
regarding his allegedly inconsistent statements did not prejudice the outcome
of the trial. We agree.

At trial, the victim testified that, on the day of the assault, “I was in my
room with the door closed . . . and I could hear hollering and screaming going
on. I could tell it was [the defendant] on the phone.” He stated that he
“opened the door and looked down the hall . . . [a]nd [the defendant] saw me
looking down the hall and slammed the phone on the floor and came down the
hall and said, ‘I’ll teach you to look at me,’ intimidatingly, and commenced to
beat me up.” He explained that the defendant “towered over me. I was on the
corner of the bed, standing, and he got above me . . . and he hit me a few times
in my head, started on my shoulders and worked down my rib cage.” He stated
that when the defendant stopped beating him, “I . . . was on my knees” and the
defendant then “left the room.”

The investigator reported that the victim described the events as follows:

[The victim] said he was in his bedroom at one end of the
kitchen in his home. He said the door was closed. He said he
heard [the defendant] hollering and screaming in the kitchen. . . .

[The victim] said he opened the door to his bedroom and
looked down the hall. He said he did not say a word when [the
defendant] threw down the phone and charged at him, yelling, “I’ll
teach you to look at me that way!” [The victim] said [the
defendant] started to pound him in the head and then worked his
way down to his shoulders, chest and abdomen when he covered
his head and fell to the floor.

Based upon the record before us, we agree with the trial court that

[t]he location details do not go to an element of second degree
assault and, due to the layout of the home, slight differences in
memory could result in these differences in the location inside or
outside of the bedroom. The details about whether [the victim] was
standing or on the floor may reasonably refer to different moments
and may not be inconsistent at all. The difference in the details of

12
 his testimony [did] not affect [the victim’s] credibility to such an
extent that confidence in the outcome is undermined.

Accordingly, we conclude that the defendant has failed to establish that there
is a reasonable probability that, but for counsel’s alleged errors, the result of
the trial would have been different. See Cable, 168 N.H. at 681.

C. Conclusion

For all of these reasons, we conclude that the defendant has failed to
establish that he received constitutionally defective assistance of counsel.
“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. at 689 (quotation omitted); see also
Strickland, 466 U.S. at 687.

Finally, any issues raised in the defendant’s notices of appeal, but not
briefed, are deemed waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).

Affirmed.

DALIANIS, C.J., and LYNN and BASSETT, JJ., concurred; CONBOY, J.,
retired, specially assigned under RSA 490:3, concurred.

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