In re Russo

Decision Date26 February 2010
Docket NumberNo. 08-070.,08-070.
Citation991 A.2d 1073,2010 VT 16
PartiesIn re Vito RUSSO.
CourtVermont Supreme Court

Allison N. Fulcher of Martin & Associates, Barre, and Vito J. Russo, Pro Se, Springfield, for Petitioner-Appellee.

Tracy Kelly Shriver, Windham County State's Attorney, Brattleboro, for Respondent-Appellant.



¶ 1. Petitioner, jailed for a term of twelve-to-fifteen years on a conviction for aggravated assault, sought post-conviction relief (PCR) on the grounds that he did not receive effective assistance of counsel at his trial. The PCR court agreed, concluding that petitioner's trial attorney deprived him of effective representation by failing to engage a firearms expert to testify at trial and failing to test-fire the rifle at issue. The State appeals and argues that the trial attorney's tactical decisions were within an acceptable range of professional judgment and, even if there were unprofessional errors, petitioner produced no evidence showing, within a reasonable probability, that absent those errors the outcome of his trial would have been different. We affirm.

I. Factual Background
A. Petitioner's Criminal Trial

¶ 2. In the underlying criminal case, petitioner was charged with and convicted of aggravated assault in violation of 13 V.S.A. § 1024(a), the result of an altercation with a former mortgage holder. To prove this case, the State had to show petitioner attempted to cause bodily injury with a deadly weapon, a bolt-action rifle, by pointing it at the complaining witness and firing it at his vehicle. See 13 V.S.A. § 1024(a)1; State v. Pratt, 147 Vt. 116, 118, 513 A.2d 606, 607 (1986) (per curiam) (attempted aggravated assault includes element of specific intent to harm). Our decision affirming petitioner's conviction on direct appeal contains a full account of the facts of the case, State v. Russo, 2004 VT 103, ¶ 3, 177 Vt. 394, 864 A.2d 655, but we recount them here briefly. In 1999, the complaining witness sold petitioner a motel, and under their agreement, the complaining witness held the deed while petitioner made payments on the property. At some point in 2002, petitioner failed to make payments and the complaining witness foreclosed on the property and evicted petitioner and his family, who had been living on the premises. Following the eviction, on the afternoon of November 17, 2002, petitioner went to the complaining witness's place of business, a car sales lot, to offer to pay $5000 for permission to reside in the motel with his family through the holidays. The complaining witness immediately demanded that petitioner leave his property. At this point, according to the complaining witness, petitioner pointed a gun at him, causing the complaining witness to flee the property in his plow truck. Petitioner followed in his standard-transmission Dodge. It was alleged that, as the two vehicles dodged in and out of traffic during a five-mile chase through Brattleboro, at around five o'clock in the afternoon, petitioner fired a bolt-action rifle from his car at the complaining witness's vehicle. Eventually the complaining witness pulled into the Brattleboro Police Station, followed by petitioner, who was then arrested.

¶ 3. During the subsequent search of petitioner's vehicle, police found petitioner's.22 caliber rifle with one live round of ammunition in it, one spent cartridge in the rifle's chamber, bullets in an ammunition box, and four spent bullet casings on the vehicle's floor. Once the police took possession of these items, their investigation ended. They did not assess the gun for operability, nor determine whether the bullets and casings found in the car fit the rifle. Nor did they test petitioner's fingers or the gun for recent firing, or determine the age of the casings.

¶ 4. Petitioner was assigned an experienced criminal defense attorney. Conflict between petitioner and his trial attorney arose almost immediately. Petitioner steadfastly asserted that he did not fire a weapon and wanted to pursue a defense of total denial. The trial attorney, on the other hand, wanted to pursue an insanity or diminished capacity defense based on his intoxication at the time of the incident and the great emotional stress that had resulted from the foreclosure and eviction. Petitioner insisted that they not formally pursue that line of defense, and, consistent with his instructions, the trial attorney filed no notice of an insanity defense or of expert testimony as required by the Vermont Rules of Criminal Procedure. V.R.Cr.P. 12.1(a) (requiring defense counsel to give advance written notice of expert testimony relating to insanity, mental disease or defect, or any other mental condition that counsel intends to use as a defense at trial). The trial attorney's resulting trial strategy was a mixture of both denial and incapacity. She sought to cast doubt on whether a shooting occurred by undermining the State's evidence that petitioner shot at the complaining witness and that he fired multiple shots, while also arguing that, if he did commit the acts alleged, petitioner's intoxication and mental anguish rendered him incapable of forming the specific intent necessary for the assault charge.

¶ 5. At trial, the State's evidence of the aggravated assault consisted of testimony from the complaining witness, two witnesses to the sounds of the gunshots around the time of the chase, and the arresting officer's testimony about the physical evidence of the gun and ammunition found in petitioner's vehicle. The complaining witness's testimony provided the only direct evidence that petitioner shot the rifle at him. He testified that he heard four gun shots during the car chase, saw at least one muzzle flash in his vehicle's rear-view mirror, and could tell that the flash was directed at him. The arresting officer admitted that the police had not tested the rifle to determine operability or whether it had been fired recently. He further admitted that no testing had been done to determine whether the casings found in petitioner's vehicle fit the rifle, how old the casings might be, or whether petitioner had fired a gun recently. It further developed that the ammunition box found held two types of .22 caliber bullets, some of which matched the casings found in the vehicle and others that did not. The State asked no questions of this witness regarding muzzle flashes or if one could determine directionality from any flash seen.

¶ 6. The trial attorney's cross-examination of this officer established him as knowledgeable about firearms. She then asked questions of this never-deposed witness that allowed the officer to answer with his opinion that, indeed, a flash probably could be seen from a gun fired at night and that a person seeing a muzzle flash could probably tell which direction the gun was pointed—not what the trial attorney wanted to have the jury hear.

¶ 7. The two ear witnesses testified to "hearing noises that could have been gun shots at about the time of the chase." Both had some connection to the complaining witness—one was trying to purchase the same motel from the complaining witness that petitioner had just lost—and they presented conflicting versions of when the noises occurred.

¶ 8. The jury found petitioner guilty. This Court upheld his conviction on direct appeal. Russo, 2004 VT 103, ¶ 1, 177 Vt. 394, 864 A.2d 655.

B. The Post-Conviction Relief Proceedings

¶ 9. After losing on direct appeal, petitioner filed a PCR petition in superior court claiming that his trial counsel was ineffective for three reasons: first, she failed to depose any witnesses prior to trial; second, she failed to retain an expert to testify regarding the likelihood of muzzle flashes from petitioner's rifle and the ability of a person to tell the direction of a shot from a muzzle flash; and third, she failed to have an expert test petitioner's rifle to determine whether it produced a muzzle flash when fired or whether a person could generally tell the directionality of a shot from the muzzle flash.

¶ 10. To make his case, petitioner presented expert testimony from an experienced defense attorney, as well as the experimental results and testimony of two private investigators who tested a variety of firearms for evidence of muzzle flash. The PCR court found that "No muzzle flash was observed in the firings. At one shot with the revolver, an apparent `cylinder flash' was seen. This is a flash from the area of the cylinder of a revolver and not from ... the muzzle. The original bolt-action rifle obviously did not have a cylinder." The PCR court found that these tests, as conducted, were not sufficiently similar to the conditions of the original incident and the guns tested were not similar enough to the gun used in the alleged assault to provide reliable results. The PCR court concluded that the tests would probably not have been admissible at trial. Testimony at the PCR hearing additionally established that the Bureau of Alcohol, Tobacco and Firearms held the actual weapon and would not permit petitioner's experts to use it in preparation for the PCR hearing because it was illegal, nor could they make an exact copy because of the gun's illegally shortened barrel.

¶ 11. One of petitioner's investigators also testified that he drove the route followed by the complaining witness and petitioner during the incident while trying to operate a bolt-action BB gun. He said that he was unable to operate the rifle with any success. The other investigator testified that an observer probably could not tell which direction a gun was aimed, even if he or she observed a muzzle flash.

¶ 12. Petitioner's attorney expert witness testified as to the performance of petitioner's trial attorney relative to the professional standards for criminal defense attorneys in Vermont. The expert testified that the trial attorney was ineffective because she made an...

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12 cases
  • In re Fitzgerald
    • United States
    • Vermont Supreme Court
    • February 28, 2020
    ...murder trial, no possible result of [additional evidence] would sufficiently undermine our confidence in the verdict ...."), with In re Russo, 2010 VT 16, ¶ 18, 187 Vt. 367, 991 A.2d 1073 (affirming grant of PCR petition because of "insubstantial nature of the evidence that the State put fo......
  • In re Williams
    • United States
    • Vermont Supreme Court
    • July 11, 2014
    ...error and will uphold the legal conclusions if they are reasonably supported by the findings and the applicable legal principles. In re Russo, 2010 VT 16, ¶ 17, 187 Vt. 367, 991 A.2d 1073.I. Ineffective Assistance Prior to Guilty Plea¶ 13. Petitioner raises three issues concerning his attor......
  • In re Fitzgerald
    • United States
    • Vermont Supreme Court
    • February 28, 2020
    ...murder trial, no possible result of [additional evidence] would sufficiently undermine our confidence in the verdict . . . ."), with In re Russo, 2010 VT 16, ¶ 18, 187 Vt. 367, 991 A.2d 1073 (affirming grant of PCR petition because of "insubstantial nature of the evidence that the State put......
  • In re Chandler
    • United States
    • Vermont Supreme Court
    • February 15, 2013 the form of a new trial should the petitioner establish that he received ineffective assistance of counsel during his trial. See In re Russo, 2010 VT 16, ¶ 30, 187 Vt. 367, 991 A.2d 1073 (affirming trial court's grant of a new trial after petitioner alleged ineffective assistance of coun......
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