Dunbar, In re

• Decision Date: 17 June 1994
• Docket Number: No. 93-276,93-276
• Citation: 647 A.2d 316,162 Vt. 209
• Parties: In re Vernon DUNBAR.
• Court: Vermont Supreme Court

Page 316

647 A.2d 316

162 Vt. 209

In re Vernon DUNBAR.

No. 93-276.

Supreme Court of Vermont.

June 17, 1994.

Brian L. Porto of Plante, Hanley & Gerety, P.C., White River Junction, for petitioner-appellant.

Robert M. Butterfield, Caledonia County Deputy State's Atty., St. Johnsbury, for respondent-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ. JOHNSON, Justice.

Defendant appeals from a decision of the Caledonia Superior Court denying his petition for post-conviction relief, which alleged ineffective assistance of counsel and failure of the State to disclose exculpatory evidence. We affirm.

In 1986, defendant was convicted of sexual assault and lewd and lascivious conduct with a child. This Court affirmed his convictions in State v. Dunbar, 152 Vt. 399, 566 A.2d 970 (1989). In May 1990, defendant filed a petition for post-conviction relief (PCR) with the Caledonia Superior Court, which conducted evidentiary hearings and subsequently denied the petition. Defendant now appeals to this Court.

Defendant argues on appeal that the trial court erred in concluding that defendant's two attorneys met the standard of reasonable competence. Defendant makes several allegations in support of this argument, the most important of which is his contention that he received ineffective assistance of counsel because his attorneys failed to present a defense that the two child witnesses had been coached by adults. Defendant also argues that the PCR court erred in concluding that the original trial court properly denied defendant's request for substitute counsel. Finally, defendant contends that the trial court erred in concluding that evidence the State failed to disclose was not exculpatory.

On a PCR appeal, we review the findings of fact by the clearly erroneous standard. State v. Bristol, 159 Vt. 334, 336, 618 A.2d 1290, 1291 (1992). If there is any credible evidence to support the findings, and the conclusions follow from the findings, this Court will uphold the trial court's judgment. Id.

I.

On a petition for post-conviction relief, defendant bears the burden of proving "by a preponderance of the evidence, that fundamental errors rendered his conviction defective." In re Liberty, 154 Vt. 643, 644, 572 A.2d 1381, 1382 (1990) (mem.). When the claimed error is ineffective assistance of counsel, defendant must show by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness informed by prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984); In re Pernicka, 147 Vt. 180, 182-83, 513 A.2d 616, 618 (1986). If that burden is met, defendant must then show that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. A defendant proves prejudice by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

Defendant's burden is a heavy one. Trial counsel are permitted a great deal of discretion in decisions regarding trial strategy, and even the failure of that strategy is not the standard by which a reviewing court will measure trial counsel's competence. In re Mecier, 143 Vt. 23, 31-32, 460 A.2d 472, 477 (1983). "[R]ather, we must look to whether such decisions were within the range of competence demanded of attorneys in a criminal case at that time." Id. at 32, 460 A.2d at 477. Moreover, as this Court stated in Pernicka:

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 professional assistance....

Pernicka, 147 Vt. at 183, 513 A.2d at 618 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).

Defendant argues that he met his burden by showing that trial counsel failed to pursue what he contends was the only credible defense to the charges of sexual assault: that the child victim and another witness were coached by the victim's cousin, the person to whom the child victim initially reported the events and who wrote down the victim's story at the police station. In support of his contention, he points to trial counsel's failure to pursue a vigorous cross-examination of the child witnesses, J.S. and A.C., and the cousin. Defendant argues that vigorous cross-examination would have highlighted prior inconsistent statements by the children, suggesting that they did not see or observe the events alleged, and raised doubt in the jurors' minds about the plausibility of defendant, a 440-pound man, committing a sexual assault on a five-year-old girl in the manner alleged. Defendant emphasizes, with citations to the original trial transcript, that counsel were well aware of the issue of coaching and had argued the issue to the trial court on a motion to dismiss the charges.

The difficulty with defendant's argument is that the trial of the case, and particularly the cross-examination of the witnesses, was susceptible to more than one strategy. The proper question is whether trial counsel had any reasonable strategy and whether they pursued it with adequate preparation and diligence. If they did, then defendant cannot meet the Strickland/ Pernicka test by showing that counsel did not choose the defense he now contends was the only viable approach to the case. See Pernicka, 147 Vt. at 183, 513 A.2d at 618 (Court must be wary of concluding with the benefit of hindsight that attorney acted unreasonably after chosen defense proved unsuccessful).

The evidence showed, and the trial court found, that assigned counsel, William Neylon and Charles Hickey, were lawyers experienced in criminal law. Mr. Neylon provided sole representation from the time defendant was charged through a hearing on a motion to dismiss. The motion to dismiss was prompted by Mr. Neylon's deposition of the victim, at which she was unable to talk about the crime. At the hearing, however, the witness was able to speak convincingly of what had happened to her, which prompted the trial court judge to comment that defendant was "getting murdered" by her testimony.

After the hearing and upon defendant's request for additional counsel, the court appointed Mr. Hickey, an experienced criminal defense lawyer. Counsel deposed numerous State witnesses, and filed a motion for individual voir dire and a sequestered jury. Counsel also filed a motion for a pretrial hearing to address important issues related to the child victim, such as the seating arrangement at trial, the scope of questioning of the victim, and the allowable scope of expert testimony. Counsel filed a notice of an alibi defense, and it challenged the State when it attempted to amend the informations to broaden the time of the events from July 1985 to the summer of 1985. They also sought discovery of medical examinations, notes of police officers or Social and Rehabilitation Services workers, and any reports or statements made by experts. With specific reference to coaching, Mr. Neylon successfully moved to depose the victim's parents in an effort to explore this defense.

Despite considerable pretrial activity on the part of counsel, the trial court found that counsel were unable to produce credible, objective evidence that the children had been coached, and they were faced with a sympathetic victim who was now able to tell her story in a credible manner. Rather than pursue the coaching defense aggressively through cross-examination of the children, which counsel believed might "backfire," they made the tactical decision to try to emphasize the implausibility of the particular events and to rely on an alibi defense. Moreover, they were concerned that overemphasis on the coaching theme might produce prior consistent statements in rebuttal or redirect that would bolster the children's testimony.

The trial court concluded Mr. Hickey did pursue the inconsistencies in the children's accounts of the events and the implausibility of their stories to the extent he felt appropriate, considering the risk of eliciting damaging testimony or appearing to take advantage of the children's lack of sophistication. We cannot agree with defendant's contention that this conclusion was erroneous. At the PCR hearing, defendant's own expert admitted that pursuing prior inconsistent statements in this case called for the exercise of careful discretion because the information that had to be produced to show the inconsistency was prejudicial to defendant. In closing argument, counsel contended that the children were coached, but the argument had to be made without specific evidence, other than that the children were rehearsed for the court proceedings.

Defendant argues, however, that counsel could have avoided the problems inherent in cross-examination of the children by bringing out the coaching defense through the cousin. He points to the fact that the cousin interviewed the victim and took down the victim's statement at the police station. She later added an interlineation to the statement directly implicating defendant as "the big fat man," which defendant argues is evidence of coaching that should have been explored. Again, counsel's strategy was to limit the cousin's testimony on hearsay grounds, and they made repeated unsuccessful objections to it. Counsel then made the judgment at trial that her brief testimony had not been particularly damaging and that it was best to leave it alone. The testimony of the State's expert witness at the PCR hearing supported this strategy.

The trial court's findings and conclusions demonstrate that at...