In re Barrows

• Decision Date: 26 January 2007
• Docket Number: No. 04-082.,04-082.
• Citation: 2007 VT 9,917 A.2d 490
• Parties: In re Keith BARROWS.
• Court: Vermont Supreme Court

917 A.2d 490

2007 VT 9

In re Keith BARROWS.

No. 04-082.

Supreme Court of Vermont.

January 26, 2007.

Matthew I. Katz, J.

Matthew Valerio, Defender General, Seth Lipschutz, Prisoners' Rights Office, and Gregory Sampson, Law Clerk, Montpelier, for Petitioner-Appellant.

Robert Simpson, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

BURGESS, J.

¶ 1. Petitioner Keith Barrows appeals the superior court's order granting summary judgment for the State and dismissing his petition for post-conviction relief (PCR). He argues that: (1) he was unlawfully denied expert services in pursuing PCR; (2) the trial court judge should have recused himself by virtue of the judge's participation in the underlying criminal case; and (3) the trial court did not adequately consider petitioner's allegations before dismissing the case. We affirm.

¶ 2. Petitioner was charged with burglary and sexual assault, in violation of 13 V.S.A. §§ 1201 and 3253, for entering a home in the early morning of January 16, 1995, and subjecting one of the occupants to repeated nonconsensual sexual acts. On January 31, 1995, Judge Katz issued an arrest warrant for petitioner on these charges and a warrant to search petitioner's home. That same day, Judge Katz presided over an inquest proceeding related to the case. The following day, petitioner was arraigned before Judge Katz and ordered held without bail. Judge Katz denied petitioner's subsequent motion to review bail. In October 1997, the case was tried before a jury, Judge Pineles presiding, and petitioner was found guilty on both counts. Petitioner was sentenced to fifty-five years to life. Petitioner appealed his convictions and sentence to this Court, and we affirmed. State v. Barrows, No. 98-085 (Vt. Aug.21, 2000) (unreported mem.). Petitioner now challenges these convictions through the present PCR proceeding.

¶ 3. Prior to the January 1995 offenses, petitioner had been charged with a burglary committed on October 31, 1994, in which a man entered the bedroom of a St. Michael's College student and briefly restrained the student before fleeing. Judge Katz issued a warrant to take a sample of petitioner's DNA in connection with the investigation of that crime in December 1994. The DNA sample was subsequently used to connect petitioner to the January 1995 crimes. At arraignment for the October crime, Judge Katz ordered petitioner released with conditions. Judge Katz later received, but did not act on, a letter from the father of the St. Michael's student asking that the petitioner be held in jail pending trial.

¶ 4. In the present case, petitioner dismissed his assigned counsel and filed a lengthy pro se petition for PCR that recited alleged facts and violations of his due-process rights — ninety-four points in all. The State moved for summary judgment and dismissal, contending that many of the allegations did not present a basis for PCR, and those claims that might were not supported by any evidence. In response, petitioner moved for expert and investigative services to: (1) aid in his claim of ineffective assistance of counsel; (2) review the DNA evidence; (3) perform tests on the rape kit swabs to look for evidence of spermicidal cream; and (4) locate and interview witnesses. Describing the motion as a "scattershot request," the superior court, Judge Katz presiding, denied defendant's motion for services. In a separate order filed the same day, the court granted the State's motion for summary judgment, stating:

Petitioner lists vast categories of evidence. But shows not one admissible fact which would cast doubt on guilt/conviction. E.g., ¶ 4a — witnesses who saw him with victim in "5 different establishments." Yet not even 1 such place is named. Summ[ary] judgment "smokes out" whether, indeed, there is such evidence. Here, petitioner actually presents nothing.

Petitioner appealed.¹

¶ 5. This Court reviews a grant of summary judgment de novo, employing the same standard as the trial court. Weale v. Lund, 2006 VT 66, ¶ 3, 180 Vt. ___, 904 A.2d 1191 (mem.). To obtain summary judgment, the moving party must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id.; V.R.C.P. 56(c)(3).

¶ 6. Petitioner claims a right to expert and investigative services under the Public Defender Act's (PDA) provision entitling needy defendants or prisoners to "necessary services and facilities of representation," 13 V.S.A. § 5231(2). A needy defendant has a statutory right to these services at state expense, regardless of whether the person is pro se or represented by counsel, so long as the person shows that the services are "necessary to his defense." State v. Wool, 162 Vt. 342, 350, 648 A.2d 655, 660 (1994). Showing necessity requires more than a bare assertion of need; it requires that the specific purpose and nature of the expert assistance be demonstrated and a further showing that an adequate case cannot be made absent such assistance. Id. In the context of PCR, this means showing how the assistance advances the argument that petitioner's trial was fundamentally flawed. See In re LaBounty, 2005 VT 6, ¶ 7, 177 Vt. 635, 869 A.2d 120 (mem.) (explaining that petitioner claiming ineffective assistance of counsel must show that, but for counsel's errors, there is a reasonable probability that result would have been different); State v. Boskind, 174 Vt. 184, 191, 807 A.2d 358, 365 (2002) (citing In re Rebideau, 141 Vt. 254, 257, 448 A.2d 144, 146 (1982) ("[P]ost-conviction relief is not a vehicle for reexamining a defendant's guilt or innocence, but is rather designed to correct fundamental trial errors . . . .")). In Wool, the Court held that the defendant did not make a sufficiently specific showing of need for an expert rebuttal witness when the defendant did not specify which parts of the State's expert witness testimony he was seeking to refute. 162 Vt. at 349-50, 648 A.2d at 660. Petitioner distinguishes Wool, contending that his request for expert assistance in four areas — legal expertise, DNA analysis, chemical analysis, and witness investigation — was sufficiently specific to demonstrate necessity under the statute.

¶ 7. The State responds first by arguing that the PDA does not provide for expert and investigative services to pro se petitioners in PCR proceedings. The State asserts, correctly, that there is no constitutional requirement to provide PCR petitioners with either counsel or services and that the right to such services is entirely statutory. In re Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632. The State also notes that a 2004 amendment to the PDA limited the availability of counsel in PCR cases to only those that the assigned attorney considers to be nonfrivolous.2003, No. 157 (Adj.Sess.), § 10 (amending 13 V.S.A. § 5233(a)(3)). The amended section, however, concerns only representation; it does not speak to provision of expert or investigative services. Wool makes clear that under the PDA the assignment of counsel and provision of other litigation support services are treated separately, so that waiver or denial of one does not preclude entitlement to the other. 162 Vt. at 348, 648 A.2d at 659-60. None of the State's arguments directly address the plain language of § 5231 that a person "being detained under a conviction of a serious crime, is entitled . . . [t]o be provided with the necessary services and facilities of representation." We thus look to see whether petitioner demonstrated necessity.

¶ 8. Petitioner's motion expressed the need for a legal expert to aid in his claims of ineffective assistance of counsel. These claims range from general incompetence of all lawyers who worked on the case, to petitioner's trial attorney having one or more conflicts of interest, to a physical altercation between petitioner and his trial attorney, to a conspiracy between the State, defense attorney, and trial judge to have petitioner convicted, among others. Yet petitioner's motion did not connect the request for a legal expert to any of the allegations other than a general statement that such expert was needed to address the question of incompetence. Petitioner maintains that under In re Grega, 2003 VT 77, 175 Vt. 631, 833 A.2d 872 (mem.), an expert is necessary to make any meritorious ineffective assistance of counsel claim and that denial of his request for a legal expert placed him in an "untenable catch-22 situation" of not being able to make a claim without a legal expert and not being able to get a legal expert without a meritorious claim.

¶ 9. Petitioner is incorrect. It may be that "[o]nly in rare situations will ineffective assistance of counsel be presumed without expert testimony." Grega, 2003 VT 77, ¶ 16, 175 Vt. 631, 833 A.2d 872 (affirming denial of PCR when petitioner failed to provide expert testimony on several ineffective assistance of counsel claims). Nevertheless, setting aside the question of whether some or all of petitioner's claims fall into the rare category of those where an expert is not necessary, petitioner's reading of Grega would require that a motion for expert legal assistance be granted pro forma whenever there is a claim of ineffective assistance of counsel, obviating any demonstration of necessity in such instances. Petitioner's argument fails to distinguish between the burden of proof to win a claim on the merits — to which the comment in Grega applies — and the burden to demonstrate necessity for expert services that petitioner faced in this case. To demonstrate necessity for services, petitioner did not have the burden of proving his ineffective assistance claim, for which expert testimony is often required. Rather, petitioner needed to describe how a legal expert would assist petitioner to prove that specific shortcomings in his...