State of New Hampshire v. Kevin Rawnsley, 104 A.3d 198

Feb 16, 2008: masked robber hit store clerk with a baseball bat, stole cash; no suspect identified at the time.
Four years later (2012) Stacey Rawnsley, the defendant’s then-wife, contacted police offering information about the robbery in exchange for leniency on unrelated charges.
Stacey testified at trial she saw Kevin Rawnsley leave their apartment that night wearing black clothes, a mask, gloves, and carrying a wooden baseball bat; he returned ~30 minutes later and pulled small bills from his sweatshirt.
Stacey said Rawnsley later admitted the robbery and described details; she received a reduced sentence after cooperating.
Defense theory: Stacey fabricated accusations to obtain sentence consideration; trial counsel emphasized her motive to lie and did not object to much of her testimony.
Defendant appealed, arguing plain error because the trial court failed sua sponte to strike testimony covered by the marital evidentiary privilege.

Issue	State's Argument	Rawnsley's Argument	Held
Whether testimony about defendant’s conduct that night was protected by the marital evidentiary privilege	Testimony about conduct was not attributable to the marital relationship and thus not privileged	Testimony about conduct was privileged like spouse’s verbal statements and should have been excluded	Court did not reach privilege merits as plain error not shown; no obligation to sua sponte strike here
Whether testimony of defendant’s verbal admissions was admissible despite marital privilege	Even if privileged, Rawnsley waived by not objecting at trial	Failure to object did not waive privilege and trial court should have acted sua sponte	Admission without objection was not plain error; counsel may strategically forgo objections
Whether failure to object permits plain error review and reversal	Trial court’s admission was proper or any error was waived	Trial court’s failure to strike testimony constituted plain error under Sup. Ct. R. 16-A	Plain error standard not met: error not "plain" given unsettled law and strategic choices by defense counsel
Whether counsel’s tactical decision not to object warrants ineffective assistance claim	Defense strategic choices can explain lack of objection; not a trial-court error	Counsel’s failure to object deprived defendant and merits relief	Remedies for alleged counsel deficiency lie in an ineffective-assistance claim at trial level, not plain error reversal

State v. Guay, 164 N.H. 696 (discussing New Hampshire plain error standard)
State v. Noucas, 165 N.H. 146 (plain error requires clear or obvious error under settled law)
State v. Pelletier, 149 N.H. 243 (acts "attributable to the husband-wife relation" may be privileged)
State v. Thompson, 161 N.H. 507 (ineffective-assistance claims typically raised first in trial court)
United States v. Smith, 459 F.3d 1276 (11th Cir.) (observing difficulty of finding plain error where counsel made strategic choices)
United States v. Lin, 101 F.3d 760 (D.C. Cir.) (declining to find plain error where defense may have strategic reasons not to object)
Sexton v. French, 163 F.3d 874 (4th Cir.) (trial strategy decisions generally fall to counsel)
People v. Hommerson, 927 N.E.2d 101 (Ill. App. Ct.) (defense may avoid objections to develop a theory that impeaches witness credibility)