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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Rockingham
Nos. 2014-0163
     2015-0025


                        THE STATE OF NEW HAMPSHIRE

                                            v.

                                  ERIC R. CABLE

                           Argued: February 10, 2016
                          Opinion Issued: April 1, 2016

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


      Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on
the brief and orally), for the defendant.

       DALIANIS, C.J. Following a jury trial in Superior Court (Wageling, J.),
the defendant, Eric R. Cable, appeals his conviction for negligent homicide –
driving under the influence of intoxicating liquor (DUI), see RSA 630:3, II
(2007), and the trial court’s denial of his motion for a new trial based upon
ineffective assistance of counsel. On appeal, he argues that the evidence was
insufficient to prove, beyond a reasonable doubt, that he caused the victim’s
death and that his trial counsel rendered constitutionally ineffective assistance
by failing to object to the admission of certain evidence and to certain
statements by the prosecutor in his opening statement and closing argument.
We affirm.

I. Brief Procedural History

       The relevant facts follow. In April 2013, a grand jury indicted the
defendant on alternate counts of negligent homicide. See RSA 630:3, I (2007),
II; see also State v. Wong, 125 N.H. 610, 618-20 (1984) (explaining that, under
RSA 630:3, I, II, the culpability requirement of negligent homicide may be
satisfied either by showing that a person caused the death of another
negligently or by establishing that the person caused the death in the course of
driving while under the influence).

       The first count alleged that, on or about July 14, 2012, the defendant
committed the crime of negligent homicide – DUI when he “operat[ed] a
powerboat on Northwood Lake” while under the influence of intoxicating liquor
and that, as a consequence of being under the influence, he caused the death
of the victim “in that, while [the victim] was riding on the gunwales or
straddling the bow” of the boat, the defendant “maneuvered said boat in a
manner that resulted in [the victim] falling overboard and being struck by the
boat, drive and spinning propeller.” See RSA 630:3, II.

      The second count alleged that the defendant committed the crime of
negligent homicide on or about July 14, 2012, when he “negligently[ ] caused
the death of [the victim]” by allowing him “to ride on the gunwales or straddle
the bow” when the defendant “executed a turning maneuver striking the wake
of another boat, resulting in [the victim] falling overboard and being struck by
the boat, drive and spinning propeller.” See RSA 630:3, I.

        A jury convicted the defendant on both counts. However, the State nolle
prossed the second count, and the trial court sentenced the defendant only for
the first count (negligent homicide – DUI). In addition, the trial court found the
defendant guilty of two violation-level offenses: (1) failure to display a proper
vessel number as part of the registration process, see RSA 270-E:8 (2010); and
(2) failure to obtain a boater safety education certificate, see RSA 270-D:10
(2010).

       Thereafter, the defendant filed a direct appeal of his negligent homicide –
DUI conviction. After doing so, he filed in the trial court a motion for a new
trial based upon ineffective assistance of counsel. The defendant has not
provided a transcript of any hearing that might have been held on that motion.
At oral argument, the State represented, and the defendant did not dispute,
that the trial court did not hold an evidentiary hearing on the motion for a new
trial. The record does not establish that the defendant ever requested such a
hearing.



                                        2
       The trial court denied the defendant’s motion, and his discretionary
appeal of the trial court’s denial followed. We consolidated the defendant’s
direct and discretionary appeals.

II. Direct Appeal

       We first address the defendant’s direct appeal of his negligent homicide –
DUI conviction in which he argues that the evidence was insufficient to prove,
beyond a reasonable doubt, that his operation of the boat while under the
influence of intoxicating liquor caused the victim’s death. Because a challenge
to the sufficiency of the evidence raises a claim of legal error, our standard of
review is de novo. State v. Collyns, 166 N.H. 514, 517 (2014).

       To prevail upon a challenge to the sufficiency of the evidence, the
defendant must demonstrate 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. Id. In such a
challenge, “we objectively review the record to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” State v. Zubhuza, 166 N.H. 125, 128 (2014) (quotation
omitted).

       To convict the defendant of negligent homicide – DUI, the State was
required to prove, beyond a reasonable doubt, that: (1) the defendant was
under the influence of intoxicating liquor; (2) when he operated a propelled
vehicle; and (3) caused the death of another. RSA 630:3, II. At trial, the
defendant conceded that he operated a propelled vehicle within the meaning of
the statute. He also stipulated that the victim died “by drowning after receiving
blunt penetrating injuries to his head, neck and chest as a result of being
struck by the boat[,] drive and spinning propeller of the boat in which he had
been a passenger.” Additionally, for the purposes of this appeal, the defendant
does not contest the sufficiency of the evidence that he was under the influence
of intoxicating liquor when he operated the boat. Thus, the only issue for us to
consider is whether the defendant’s impairment caused the victim’s death. See
State v. Whittaker, 158 N.H. 762, 766 (2009); see also Wong, 125 N.H. at 620
(to sustain a conviction for negligent homicide – DUI, the State must establish
a causal connection between the person’s driving under the influence, the
subsequent collision, and the resulting death).

      Although the defendant refers to the standard we apply when evidence to
prove an element is solely circumstantial, see State v. Germain, 165 N.H. 350,
361 (2013), that standard does not apply here because the evidence of
causation was both direct and circumstantial, see State v. Saunders, 164 N.H.
342, 349-52 (2012). Based upon our review of the evidence as a whole and all
reasonable inferences therefrom, viewed in the light most favorable to the



                                        3
State, we conclude that it was sufficient to allow a rational trier of fact to find
that the defendant’s impairment caused the victim’s death.

       The jury viewed the boat. Also, the jury heard from multiple witnesses
that, before falling overboard, the victim had been sitting either on the bow or
the gunwales of the boat. The jury also heard testimony that although “bow
rider[s],” like the defendant’s boat, are “common” in New Hampshire, it is “not
commonplace” for passengers of such boats to fall overboard. The jury heard
as well, from multiple witnesses, that the victim fell overboard when the
defendant, operating the boat at approximately 20 miles per hour, turned it
into one or more waves. In a written statement he gave at the scene, the
defendant stated that the victim “fell off the front right side of the boat” when
the defendant “turned around and hit a wave.” On the evening of the incident,
the defendant told a Northwood Lake resident that his “friend was sitting on
the bow of the boat with his legs over, and they hit a wave and he got dragged
into the water.” (Quotation omitted.) At trial, the defendant testified that,
when he turned the boat, it “went over some small waves,” which made “the
boat . . . pitch and yaw” and caused the victim to lose his balance and fall
overboard.

       The jury also heard that, on the afternoon of the incident, before the
victim fell to his death, the defendant had been drinking alcohol. There was
evidence that there were more than 100 alcoholic beverage containers on the
boat, 89 of which were empty. One witness described the defendant as
“definitely under the influence,” becoming “sloppy” and “a little wild” as the day
wore on. She estimated that both the defendant and the victim had had more
than eight alcoholic drinks over the course of approximately three and one-half
hours. A criminal toxicology expert estimated that, at the time of the incident,
the defendant’s blood alcohol concentration was .133. See RSA 265-A:2, II
(2014) (making it unlawful to operate a boat with a blood alcohol concentration
of .08 or more).

        Further, Joshua Dirth, a marine patrol sergeant, testified that it was
unlawful for a passenger to sit on the gunwales or bow while a motorboat is
being operated. See RSA 270-D:7 (2010) (providing that “[n]o person shall
operate a motorboat or ride as a passenger in a motorboat while sitting on
either the starboard or port gunwales or the transom, and no person shall
straddle the bow while the motorboat is in operation underway”). Dirth also
testified that, had he observed the defendant operating the boat with the victim
seated on the bow or gunwales, he would have stopped the boat and charged
the defendant with misdemeanor careless and negligent operation. See RSA
270:29-a (2010) (providing that “[a]ny person who shall operate a power boat
upon any waters of the state in a careless and negligent manner or so that the
lives and safety of the public are endangered shall be guilty of a
misdemeanor”).



                                          4
      Based upon all of the evidence, a rational trier of fact could have
reasonably inferred that the defendant’s impairment caused him to allow the
victim to sit on the bow or gunwales, even though it was unlawful for the victim
to do so. See RSA 270-D:7. A rational trier of fact could also have reasonably
found that the defendant’s impairment caused him to turn the boat through a
wave while the victim was so sitting. Viewing the evidence and all reasonable
inferences therefrom in the light most favorable to the State, we are unable to
conclude, as a matter of law, that no rational trier of fact could have found,
beyond a reasonable doubt, that the defendant’s impairment caused the
victim’s death. See Whittaker, 158 N.H. at 766.

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 ineffective assistance of
counsel. The defendant’s claim of ineffective assistance 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. State v. Thompson, 161 N.H.
507, 528 (2011); 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.” State v.
Hall, 160 N.H. 581, 584 (2010) (quotation omitted); see Strickland, 466 U.S. at
687.

      “To meet the first prong of this test, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.”
Thompson, 161 N.H. at 528 (quotation omitted); see Strickland, 466 U.S. at
688. “We judge the reasonableness of counsel’s conduct based upon the facts
and circumstances of that particular case, viewed from the time of that
conduct.” Hall, 160 N.H. at 584; see Strickland, 466 U.S. at 690. As we have
explained:

      Judicial scrutiny of counsel’s performance must be highly
      deferential. 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. Because of the difficulties inherent in
      making the evaluation, a court must indulge a strong presumption
      that counsel’s conduct falls within the wide range of reasonable


                                       5
      professional assistance; that is, the defendant must overcome the
      presumption that, under the circumstances, the challenged action
      might be considered sound trial strategy.

Hall, 160 N.H. at 584-85 (quotation omitted). The strong presumption that
counsel’s conduct is objectively reasonable “has particular force” in this case
because, without an evidentiary hearing on the defendant’s ineffective-
assistance claim, we have “no way of knowing whether a seemingly unusual or
misguided action by counsel had a sound strategic motive.” Yarborough v.
Gentry, 540 U.S. 1, 8 (2003) (quotation omitted). Because “[t]he proper
measure of attorney performance remains simply reasonableness under
prevailing professional norms[,] [t]o establish that his trial attorney’s
performance fell below this standard, the defendant has to show that no
competent lawyer” would have engaged in the conduct of which he accuses his
trial counsel. Whittaker, 158 N.H. at 768-69 (quotations and citation omitted).

       “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.” Thompson, 161 N.H. at 528
(quotation omitted); see Strickland, 466 U.S. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.”
Thompson, 161 N.H. at 528 (quotation omitted); see Strickland, 466 U.S. at
694. “The prejudice analysis considers the totality of the evidence presented at
trial.” State v. Kepple, 155 N.H. 267, 270 (2007).

      “Both the performance and prejudice prongs of the ineffectiveness
inquiry are mixed questions of law and fact.” Hall, 160 N.H. at 585.
“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.
“On appeal, when we determine that a defendant has failed to meet either
prong of the test, we need not consider the other one.” Kepple, 155 N.H. at
270.

       The defendant argues that his trial counsel was ineffective because he
failed to object to evidence that the defendant: (1) violated New Hampshire
boating laws by operating the boat while the victim was seated on the bow or
gunwales; (2) did not have a boating license; (3) had not taken a boater safety
course; (4) did not display the correct vessel number on his boat; and (5) had
driven the boat earlier that day with too many people on board. He also argues
that his trial counsel was ineffective for failing to object to the prosecutor’s
allegedly improper comments in his opening statement and closing argument.
We examine each allegation in turn.




                                         6
      A. Evidence that the Defendant Unlawfully Operated the Boat while the
      Victim was Seated on the Bow or Gunwales

      The defendant first contends that his trial counsel rendered ineffective
assistance by failing to object to the following testimony by Dirth on direct
examination:

      Q Okay. Where that person is seated at the far left there in the
      front of the boat, is a [sic] legal to operator [sic] boat in New
      Hampshire for somebody sitting up there?

      A No, it’s not.

      Q Okay. Where is the only legal position for people to be seated
      up in that boat, upfront there?

      A In a boat of this configuration, it would be anywhere where
      there actually is a seat, itself, so in the interior of the boat.

      Q How about if somebody wasn’t seated in the seat, but kind of
      leaning up with their butt on any of the railings on the sides here,
      is that legal?

      A No.

Defense counsel objected to this testimony:

      [DEFENSE COUNSEL]: Objection, Your Honor. Can we approach?

      THE COURT: Sure.

              ....

      [DEFENSE COUNSEL]: This is getting into expert testimony. He’s
      talking about the legalities of the boat.

      THE COURT: Well, I don’t agree.

      [DEFENSE COUNSEL]: Okay.

      THE COURT: This is a law enforcement officer just stating the
      facts under which I --

      [DEFENSE COUNSEL]: All right.




                                        7
      THE COURT: -- assume that if there’s a regulation and/or . . .
      RSA, that --

            ....

      THE COURT: Objection overruled.

After defense counsel’s objection was overruled, Dirth testified:

      Q So as I was asking, if somebody isn’t physically seated in these
      seats, but up here standing with -- leaning against these gunwales,
      or their butt partially up on those gunwales, is that a legal
      position?

      A If somebody’s actually -- excuse the language I’m using. But
      your butt cheek is on the gunnel or up on the bow, that’s where
      the issue arises, so that would be illegal.

      Q Okay. They would have to be seated in the seats?

      A Or they could stand, as long as they’re standing in the interior
      of the boat. No different if I was standing here versus maybe in the
      rear of the boat.

            ....

      Q I’m sorry, sergeant, as you were explaining about whether that’s
      -- whether there was any erratic operation in your -- in what
      happened in this case, any evidence of that?

      A Absolutely, there is. I mean, he flew out of the boat. A bow
      rider is a very common -- a common boat used all over the state.
      You see them on a daily basis, and it’s just very -- it is just not
      commonplace to have people flying out of boats, I mean, in the
      marine industry. There would be an uproar. And you just -- those
      kinds of calls don’t happen.

            If I had seen that type of operating happen, I would have
      stopped the boat and I would have cited [the defendant].

On cross-examination, Dirth clarified:

      Q And you were also told that . . . [the victim] frequently sat up in
      that area of the boat?

      A If he did sit up there, it would be on the starboard side.


                                         8
      Q Right. And the law that you talked about when you were being
      asked questions this morning by [the prosecutor], that it’s illegal to
      sit up on the bow in this area right here, that law applies equally to
      passengers, too, doesn’t it?

      A It does.

      Q So it’s not just a matter of that it would be illegal to sit up there
      if you were an operator of the boat; it’s illegal to sit up there if you
      were a passenger, correct?

      A Yes, it is.

            ....

      Q Would you have also cited [the victim] for sitting up there, sir?

      A I don’t know. The operation would have been so egregious, that
      I probably would have charged [the defendant] with what I call --
      it’s a careless negligent statute, a misdemeanor. I don’t see that --

      Q The law regarding seating applies equally to passengers, as we
      established, correct?

      A It does.

       The defendant contends that Dirth’s testimony was objectionable
because it constituted a “plainly incorrect interpretation of the law,” and was
“improper expert testimony about the status of the law.” Moreover, he asserts
that his trial counsel’s cross-examination “left the jury with the belief that
either [the victim] or [the defendant] or both could have been cited for violating
RSA 270-D:7, when in fact, only [the victim] had committed such a violation.”

      We are unable to conclude from this record that defense counsel’s
conduct fell below an objective standard of reasonableness. To the extent that
the defendant asserts that his counsel failed to object to the witness’s
testimony as improper expert testimony, the record belies his assertion.
Defense counsel, in fact, did object on this basis, and his objection was
overruled.

      To the extent that the defendant contends that his counsel failed to
object that Dirth inaccurately summarized the pertinent law, defense counsel
made this argument clearly at a later point in the trial:

      [PROSECUTOR]: I intend to cross [the defendant] on the pamphlet
      that he didn’t have -- because he didn’t take the boater safety


                                         9
      course, which clearly shows, Judge, operating the boat with
      somebody sitting right where [the victim] is is illegal.

      [DEFENSE COUNSEL]: That’s inconsistent with the statute, Your
      Honor.

      [PROSECUTOR]: No, it’s not.

      [DEFENSE COUNSEL]: Yes, it is.

             ....

      THE COURT: Okay. It appears, too -- and they have testimony
      this morning to support it, to reflect that it’s -- this is issued by --
      responsive by the State of New Hampshire to advise people [about]
      the laws in New Hampshire regarding boater safety. And so
      Defense counsel, or other people, might have a different impression
      of what the laws are. That’s what the people that enforce the law
      are saying the intent of the law is. And while I appreciate that
      Defense counsel has read [RSA 270-D:7] to say what you’re
      suggesting it says, I don’t share your interpretation of that statute.

Although the defendant argues that his trial counsel failed to “challenge the
state’s interpretation of the law,” the trial court disagreed with this assertion,
as do we. In ruling on the defendant’s motion for a new trial, the trial court
found that, at trial, it had considered and rejected defense counsel’s
interpretation of RSA 270-D:7.

        Moreover, we are not persuaded that Dirth, in fact, misstated the law.
Although Dirth’s testimony on direct examination might have left the jury with
the impression that RSA 270-D:7 prohibits operating a boat while a passenger
is sitting on the gunwales or bow, his testimony on cross-examination made
clear that he believed that the defendant violated RSA 270:29-a, not RSA 270-
D:7. Under RSA 270:29-a, a boat operator commits a misdemeanor when he
operates a power boat “in a careless and negligent manner or so that the lives
and safety of the public are endangered.”

       We are unable to conclude, on this record, that counsel’s strategic choice
to clarify the state of the law during his cross-examination of Dirth and in oral
argument to the trial court rather than by objecting to Dirth’s testimony on
direct examination was not sound trial strategy. “This is precisely the sort of
calculated risk that lies at the heart of an advocate’s discretion.” Yarborough,
540 U.S. at 9; see State v. Fecteau, 140 N.H. 498, 502 (1995). Based upon this
record, we hold that the defendant has failed to overcome the presumption
that, under the circumstances, his trial counsel acted reasonably. See Hall,
160 N.H. at 584-85.


                                        10
      B. Evidence that the Defendant Did Not Take a Boater Safety Course or
      Display the Correct Vessel Number on the Boat

      The defendant next challenges his trial counsel’s failure to object to
evidence that he never took a boater safety course and that his boat did not
display the correct vessel number. Although the defendant contends that such
evidence was irrelevant and prejudicial and, therefore, objectionable, in fact, it
was material to the two violation-level offenses with which he was charged and
of which the trial court found him guilty.

       The defendant was charged with, and found guilty of, failing to obtain a
boater safety education certificate, as required by RSA 270-D:10, and of failing
to display the proper vessel number on his boat, pursuant to his boat
registration, as required by RSA 270-E:8. Thus, evidence that the defendant
did not take a boater safety course and did not list the proper vessel number
on his boat was both relevant and admissible. Contrary to his assertions,
evidence that he did not take a boater safety course or display the correct
vessel number on the boat, was not evidence of “other” bad acts, but was
evidence of bad acts that were among those for which he was tried. “Failing to
advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.” People v. Ericksen, 793 N.W.2d 120, 125
(Mich. Ct. App. 2010).

       In a footnote to his brief, the defendant contends that “[t]o the extent
that . . . the evidence was relevant to prove matters being decided by the
judge,” his counsel was ineffective for failing to ask whether he would be willing
to plead guilty to the two violation-level offenses. To support this contention,
the defendant relies upon his own affidavit. Because the trial court was not
required to believe the defendant’s self-serving affidavit, we conclude that it
fails to rebut the “strong presumption that counsel’s conduct [fell] within the
wide range of reasonable professional assistance.” Hall, 160 N.H. at 584-85
(quotation omitted); see Ki Kang Lee v. Glebe, No. C14–05603 RBL, 2015 WL
1282150, at *7 (W.D. Wash. March 20, 2015) (holding that the state court
reasonably concluded that the petitioner’s self-serving affidavit failed to rebut
the strong presumption of competence that counsel adequately consulted with
him about whether to submit a certain jury instruction).

      C. Evidence that the Defendant Lacked a Boating License

      The defendant next asserts that his counsel was ineffective for failing to
object to evidence that he operated the boat without a license. Although he
does not dispute that he lacked a boating license, he argues that such evidence
was irrelevant. He also contends that, when combined with evidence that he
did not take a boater safety course or display the correct vessel number on the
boat, evidence that he lacked a boating license was excludable under New
Hampshire Rule of Evidence 404(b).


                                       11
      Even if we assume that evidence that the defendant lacked a boating
license was inadmissible, there is no reasonable probability that excluding it
would have resulted in a different verdict. See Strickland, 466 U.S. at 693
(noting that “[i]t is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding”; there is a “general
requirement that the defendant affirmatively prove prejudice”). Indeed, the
defendant does not argue that the result of his trial would have been different
had evidence that he lacked a boating license been excluded. Under these
circumstances, we cannot find that defense counsel was ineffective for failing to
object to the admission of such evidence.

      D. Evidence that the Defendant Drove the Boat with Too Many People
      On Board

       The defendant next argues that his trial counsel was ineffective because
he failed to object to testimony that, earlier in the day, the defendant had
operated the boat with too many people on board. There was evidence that,
although the boat’s capacity was seven people, earlier in the day, the defendant
had operated it with nine people on board. See RSA 270-D:5 (2010) (making it
unlawful to operate a vessel “while carrying passengers . . . beyond its safe
carrying capacity, taking into consideration weather and other operating
conditions”). The defendant argues that this evidence was irrelevant and
prejudicial. Assuming without deciding that the defendant is correct, we are
unable to conclude that defense counsel’s failure to object to such evidence
amounted to constitutional error.

       During his cross-examination of Dirth, defense counsel elicited the
following testimony:

      Q Sergeant Dirth, at the time of the accident, there weren’t -- they
      weren’t over the weight limit; is that correct?

      A No, they were not.

      Q In fact, there were four people on the boat at the time of the
      accident, correct?

      A Yes, there was.

In his closing argument, defense counsel explained:

            Next we had Sergeant Dirth take up more of your time
      explaining that earlier in the day the number of passengers and
      the weight of the boat exceeded the legal limit. Should they have
      done that when they went off to the sandbar? No, they shouldn’t
      have. But did that have anything to do with the accident? No, it


                                       12
      did not. Because at the time of the accident there were four people
      on the boat and they were within the legal limit, again as Sergeant
      Dirth had to concede on cross-examination. You should see this
      type of evidence for what it is. It’s smoke and mirrors and attempt
      to divert your attention from the eyewitnesses who were on the
      boat, three eyewitnesses that I previously mentioned, . . . that
      there was no dangerous or erratic operation leading up to or
      during the time of the accident. It was a freak accident.

       Given this record, we cannot say that defense counsel’s decision to
neutralize the evidence on this peripheral topic in his cross-examination of
Dirth and closing argument, rather than by objecting to Dirth’s testimony,
failed to fall within the “wide range of reasonable professional assistance.”
Hall, 160 N.H. at 585 (quotation omitted). “‘The decision to neutralize the
testimony rather than to object was a reasonable tactical choice.’” Nogueda v.
Peery, No. 2:14–cv–1045 GGH P, 2015 WL 2448701, at *22 (E.D. Cal. May 20,
2015) (quoting, with approval, the state court’s denial of the defendant’s
ineffective-assistance claim); see State v. Geboy, No. 14–02–09, 2003 WL
178616, at *6 (Ohio Ct. App. Jan. 28, 2003) (holding that defendant failed to
establish ineffective assistance when, even if his counsel should have objected
to certain of the prosecutor’s statements in closing, his counsel “neutralized
any prejudicial effects with a compelling closing argument attacking the state’s
evidence and lack thereof”); see also Hodges v. State, No. M2002-01334-CCA-
R3-PC, 2003 WL 22325736, at *4 (Tenn. Crim. App. Oct. 10, 2003) (upon de
novo review, rejecting the petitioner’s argument that his trial counsel was
ineffective for failing to object to various items of irrelevant evidence when
counsel testified that his trial strategy was to use cross-examination to
“neutralize unfavorable inferences or to turn seemingly damaging testimony
into [favorable] evidence”).

      E. Prosecutor’s Argument

       Finally, the defendant asserts that his trial counsel was ineffective
because he failed to object to the prosecutor’s opening statement and closing
argument in which, he contends, the prosecutor improperly: (1) argued that it
was illegal to operate a boat with a passenger seated on the bow or gunwales;
and (2) referenced evidence that the defendant did not have a boating license,
did not take a boater safety course, did not display the proper vessel number
on the boat, and drove the boat earlier in the day with too many people on
board.

      The defendant has failed to demonstrate that his counsel’s failure to
object to these comments fell below an objective standard of reasonableness.
“The standard for reversible error in a prosecutor’s opening statement is that
the prosecutor must be shown to have acted in bad faith, the opening
statement must be completely unsupported by the evidence, and the defendant


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must be prejudiced thereby.” State v. Gaudet, 166 N.H. 390, 397-98 (2014)
(quotation and emphasis omitted). “In examining claims of prosecutorial
misconduct during closing argument, we face the delicate task of balancing a
prosecutor’s broad license to fashion argument with the need to ensure that a
defendant’s rights are not compromised in the process.” Id. at 398 (quotation
omitted). “A prosecutor may draw reasonable inferences from the facts proven
and has great latitude in closing argument to both summarize and discuss the
evidence presented to the jury and to urge them to draw inferences of guilt
from the evidence.” Id. at 399 (quotation omitted). “At the same time, there
must be limits to pleas of pure passion and there must be restraints against
blatant appeals to bias and prejudice.” Id. (quotation omitted).

       The prosecutor’s assertions in his opening statement that the
defendant’s “illegal operation of a boat while being under the influence of
intoxicating liquor caused the death of [the victim],” and that one “can’t operate
a boat with somebody sitting” on the gunwales or bow, and his nearly identical
assertions in his closing argument, were supported by the evidence, and,
therefore, were not improper. As previously discussed, Dirth testified that, had
he observed the defendant operating the boat with the victim seated on the bow
or gunwales, he would have charged the defendant with misdemeanor careless
and negligent operation. See RSA 270:29-a. The prosecutor’s references in his
opening statement and closing argument to evidence that the defendant did not
have a boating license, did not take a boater safety course, did not display the
proper vessel number on the boat, and drove the boat earlier in the day with
too many people on board, likewise, were “within the latitude accorded
prosecutors when summarizing and discussing the evidence presented.” State
v. Scott, 167 N.H. 634, 642 (2015). Accordingly, the defendant has failed to
overcome the presumption that, under the circumstances, his trial counsel
acted reasonably when he did not object to the prosecutor’s opening statement
or closing argument. See Hall, 160 N.H. at 584-85.

      F. Conclusion

      For all of the reasons previously discussed, 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.” Whittaker, 158 N.H. at
768.

                                                  Affirmed.

      CONBOY, LYNN, and BASSETT, JJ., concurred.




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