State v. Eric R. Cable, 168 N.H. 673

Background

Defendant Eric R. Cable was indicted on alternate counts of negligent homicide: (1) negligent homicide–DUI (RSA 630:3, II) alleging he operated a powerboat while intoxicated and caused a passenger’s death; (2) negligent homicide (RSA 630:3, I) alleging negligent operation that caused the death. The jury convicted on both counts; the State nolle prossed the second and sentence was imposed on the DUI-based count.
The victim drowned after suffering blunt penetrating injuries from being struck by the boat’s drive and spinning propeller after falling overboard from the bow/gunwales. The defendant stipulated to the victim’s cause of death and conceded he operated the propelled vessel.
Evidence: multiple eyewitnesses that the victim was sitting on the bow/gunwales and fell when the defendant turned into waves; defendant admitted turning and hitting a wave; significant alcohol consumption aboard and toxicology estimated the defendant’s BAC at .133.
Additional evidence showed statutory violations and regulatory noncompliance (no boater safety certificate, incorrect vessel number, lack of boating license, earlier operation over capacity) and testimony from a marine patrol sergeant that it is unlawful to ride bow/gunwales and that he would have charged careless/negligent operation if he observed such conduct.
Defendant appealed challenging (1) sufficiency of the evidence as to causation (that impairment caused the death) and (2) denial of his motion for a new trial based on ineffective assistance of counsel for failing to object to certain evidence and prosecutorial statements. The trial court denied the motion; the Supreme Court consolidated the direct and discretionary appeals.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Cable)	Held
Sufficiency of evidence that DUI caused death	Evidence of intoxication, operation, eyewitness accounts of victim on bow/gunwales, defendant’s admissions and expert BAC estimate support causation	Evidence insufficient to prove impairment caused the victim’s death beyond a reasonable doubt	Affirmed — viewing evidence in State’s favor a rational jury could find impairment caused the death
Admission of law-enforcement testimony that sitting on bow/gunwales is illegal	Testimony was factual, supported by enforcement practice and warranted reasonable inferences	Testimony misstates law and was improper expert/legal opinion; counsel should have objected	No ineffective assistance — counsel did object, later neutralized issue in cross and argument; testimony was not materially erroneous on this record
Admission of evidence re: no boater safety course, incorrect vessel number, no license, earlier over-capacity operation	These facts were admissible and relevant (some were elements of violation-level offenses tried/found) and reasonably argued	Such evidence was irrelevant, prejudicial, or Rule 404(b) other-bad-act evidence; counsel should have objected	No ineffective assistance — evidence was admissible for the violation counts or, if marginal, exclusion would not likely change the verdict; counsel’s tactical choices were reasonable
Failure to object to prosecutor’s opening/closing statements	Prosecutor’s statements were supported by evidence and reasonable inferences; within proper latitude	Prosecutor improperly argued law and referenced prejudicial collateral facts; counsel ineffective for not objecting	No ineffective assistance — statements were supported by record and within prosecutorial latitude; counsel’s non‑objection was reasonable

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (legal standard for ineffective assistance of counsel)
Yarborough v. Gentry, 540 U.S. 1 (deference to counsel’s strategic choices; need for evidentiary hearing to overcome presumption of reasonableness)
State v. Whittaker, 158 N.H. 762 (requirement to show causal connection between DUI, collision, and death for negligent homicide–DUI)
State v. Wong, 125 N.H. 610 (interpretation of negligent homicide statute, alternate theories under RSA 630:3)
State v. Collyns, 166 N.H. 514 (standard of review for sufficiency of the evidence)
State v. Hall, 160 N.H. 581 (application of Strickland and judicial deference to counsel’s performance)