New Hampshire v. MardenAnnotate this Case
The State appealed a superior court order that set aside a jury’s guilty verdict against defendant Jonathan Marden for one count of aggravated felonious sexual assault. The trial court concluded defendant’s trial counsel, who was not his appellate counsel, rendered ineffective assistance of counsel when he failed to object to the testimony of the State’s expert witness, Dr. Gwendolyn Gladstone, a physician specializing in the care of abused or neglected children. The trial court found that, even though Gladstone did not explicitly opine that the complainant had been sexually assaulted, her testimony ran afoul of New Hampshire's general prohibition against offering expert testimony "to prove that a particular child has been sexually abused." The State argued that, even if trial counsel’s conduct fell “below the range of reasonable professional assistance” when he failed to object to Gladstone’s testimony, there was no prejudice. The State argued Gladstone’s testimony was merely cumulative of the testimony by the complainant’s co-workers about the complainant’s emotional state immediately following the alleged assault. The State contended “Gladstone’s testimony simply established that the [complainant] was still having an emotional reaction to the event.” To this, the New Hampshire Supreme Court disagreed, concluding Gladstone’s testimony and the inferences that could have been drawn from it — that she believed that the complainant had been sexually assaulted — were not cumulative of the other demeanor evidence because Gladstone, unlike the other trial witnesses, was recognized as an expert. Defense counsel’s failure to object to Gladstone’s testimony on New Hampshire v. Cressey grounds (137 N.H. 402 (1993)) cannot reasonably have been said to have been part of a trial strategy. Therefore, the Court concluded trial counsel’s performance was constitutionally deficient, and affirmed the superior court's order.