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State v. Flynn9/1/2004
credible. The idea that everyone is there sober, clear headed, makes no sense.
Thus, the State concludes that, given the limited options available due to the evidence against the defendant, trial counsel reasonably chose to assert that "the defendant was somehow taken advantage of while he was allegedly under the influence of drugs and alcohol."
We agree with the State. The victim's husband was available to testify and could have provided testimony corroborating the events that occurred immediately after the victim woke him. Defense counsel's reference to the victim's husband's version of events, taken in context, merely attempted to discredit the potential testimony.
Even if we assume that defense counsel should not have made reference to the victim's husband's version of events, the defendant has not demonstrated that actual prejudice occurred. To demonstrate actual prejudice he must show that there is a reasonable probability that the result of the proceeding would have been different. State v. Sanchez, 140 N.H. 162, 163 (1995). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case. State v. Wisowaty, 137 N.H. 298, 302 (1993).
Trial counsel's opening statement is not evidence. Roy, 148 N.H. at 664. While there may be references made during an opening statement that are so prejudicial that a defendant's constitutional rights are implicated, we do not construe counsel's references here to the victim's husband's statements to be such a case. See id. at 664-65. Although defense counsel could have waited to determine whether the State would call the victim's husband to testify, his decision to preempt the victim's and husband's potential testimony by attempting to discredit their version of events constituted a reasonable tactical decision. Furthermore, no actual prejudice has been demonstrated because, given the victim's version of events, the scientific evidence, and the defendant's recorded statements, there was ample evidence to convict the defendant, leaving no reasonable probability that the references in the opening statement would undermine confidence in the outcome of the case.
As the Federal Constitution offers the defendant no greater protection than the State Constitution under these circumstances, see id. at 664; Strickland v. Washington, 466 U.S. 668, 687 (1984); Wiggins v. Smith, 539 U.S. 510, 521 (2003), we reach the same result under the Federal Constitution as we do under the State Constitution.
Affirmed.
BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ., concurred.
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