In re Towne

• Decision Date: 04 October 2013
• Docket Number: No. 12–162.,12–162.
• Parties: In re Edwin TOWNE.
• Court: Vermont Supreme Court

86 A.3d 429

2013 VT 90

In re Edwin TOWNE.

No. 12–162.

Supreme Court of Vermont.

Oct. 4, 2013.

Matthew F. Valerio, Defender General, Dawn Matthews, Appellate Defender and Nick Wanger, Legal Intern, Montpelier, for Petitioner–Appellant.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Respondent–Appellee.

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

REIBER, C.J.

¶ 1. Petitioner Edwin Towne appeals the trial court's denial of his request for post-conviction DNA testing under Vermont's Innocence Protection Act, 13 V.S.A. § 5561. We affirm the denial because the court correctly concluded that the results of the requested test would not have created a “reasonable probability” of a different outcome at trial.

¶ 2. Petitioner was convicted of murder in 1989. This Court affirmed petitioner's conviction on direct appeal in 1992. State v. Towne, 158 Vt. 607, 615 A.2d 484 (1992). Since that time, petitioner has filed at least ten requests for post-conviction relief, all of which have been denied. See Towne v. Hofmann, No.2008–095, 2008 WL 3976483, at *1 (Vt. Aug. 21, 2008) (unpub.mem.), https:// www. vermont judiciary. org/ UPEO 2006– 2010/ eo 08– 095. pdf. In 2011, petitioner requested that hairs found on the victim's body be tested for mitochondrial DNA (mtDNA). If the results matched neither petitioner nor the victim, petitioner asked that authorities be ordered to obtain a sample from petitioner's former girlfriend's son, whom petitioner maintains committed the murder. After reviewing the evidence in petitioner's trial, the court rejected petitioner's testing request and granted the State's motion for summary judgment because petitioner could not show a reasonable probability that DNA results from the hair would have resulted in a different outcome at trial. The court noted that it could not compel the son to produce a sample; but it held that even if the son voluntarily did so, or if the son's DNA was already present in the DNA computer registry for comparison, “[a]ll that can be said with reasonable certainty is that DNA evidence showing that [the son's] hair was present on the scene would be a point in favor of the defense, subject like most points to conflicting interpretations.... The presence of hair from [the son] on the victim's body would open a range of possible explanations without excluding [petitioner] as the guilty party.”

¶ 3. On appeal, petitioner contends that the trial court misapprehended the applicable standard for granting post-conviction relief and that the DNA results would, in fact, have led to a reasonable probability of a more favorable outcome.

I.

¶ 4. We have not previously addressed either the standard to be applied by the trial court in deciding a request for post-conviction DNA testing under the act or, indeed, our own standard for reviewing a trial court's resolution of that request. See In re Wiley, 2012 VT 76, ¶ 7, 192 Vt. 393, 58 A.3d 966. In this case, we consider only the first question, the appropriate standard for the trial court to apply, because we are bound to apply the same standard as the lower court when reviewing the grant of summary judgment. Richart v. Jackson, 171 Vt. 94, 97, 758 A.2d 319, 321 (2000).

¶ 5. Determining the appropriate standard for considering requests under the Innocence Protection Act is a question of statutory construction and, therefore, a pure question of law that we review de novo. See Smith v. Desautels, 2008 VT 17, ¶ 12, 183 Vt. 255, 953 A.2d 620 (noting that statutory construction “is a pure question of law”). As with all matters of statutory interpretation, legislative intent is paramount. See Pease v. Windsor Dev. Review Bd., 2011 VT 103, ¶ 17, 190 Vt. 639, 35 A.3d 1019 (mem.).

¶ 6. The Innocence Protection Act provides a right to post-conviction testing under certain enumerated circumstances. See 13 V.S.A. § 5561 et seq. Before a trial court may grant a contested request for DNA testing, it must find, among other things, that:

A reasonable probability exists that the petitioner would not have been convicted or would have received a lesser sentence for the crime which the petitioner claims to be innocent of in the petition if the results of the requested DNA testing had been available to the trier of fact at the time of the original prosecution.

13 V.S.A. § 5566(a)(1) (emphasis added).

¶ 7. A robust body of case law has sought to define the contours of the “reasonable probability standard” in the context of claims of ineffective assistance of counsel and improper failure to disclose exculpatory evidence. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (explaining in federal constitutional claim based on prosecution's failure to disclose exculpatory evidence that “touchstone of materiality is a ‘ reasonable probability ’ of a different result” (emphasis added) (discussing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963))); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that prejudice prong of ineffective-assistance-of-counsel-claim is satisfied when defendant shows “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (emphasis added)); In re Dunbar, 162 Vt. 209, 212, 647 A.2d 316, 319 (1994) (noting same “reasonable probability” standard); State v. Gibbons, 146 Vt. 342, 344, 503 A.2d 540, 541 (1985) (applying Bagley materiality standard). “[A]s Justice Frankfurter advised, ‘if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.’ ” Evans v. United States, 504 U.S. 255, 260 n. 3, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (quoting F. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 537 (1947)). That is to say, absent evidence to the contrary, we presume that the Legislature was familiar with our long-standing interpretation of the phrase “reasonable probability” when it promulgated the Innocence Protection Act, and thus intended to adopt that standard. See Fletcher Hill, Inc. v. Crosbie, 2005 VT 1, ¶ 17, 178 Vt. 77, 872 A.2d 292 (noting presumption in similar context); accord State v. Dupigney, 295 Conn. 50, 988 A.2d 851, 859 (2010) (adopting as appropriate standard for post-conviction DNA testing the same standard employed in the prejudice prong of ineffective-assistance-of-counsel-claim inquiries and in resolving alleged Brady violations).

¶ 8. We hold that under our Innocence Protection Act, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (discussing “reasonable probability” in the context of the prejudice prong of an ineffective-assistance-of-counsel claim). A petitioner must demonstrate that the evidence “ ‘creates a reasonable doubt that did not otherwise exist.’ ” State v. Goyette, 156 Vt. 591, 598, 594 A.2d 432, 436 (1991) (quoting United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). As other courts have observed, this is not a sufficiency of the evidence test. See, e.g., Dupigney, 988 A.2d at 858 (“[T]he focus is not whether, based upon a threshold standard, the result of the trial would have been different if the evidence had been admitted. We instead concentrate on the overall fairness of the trial and whether [the unavailability] of the evidence was so unfair as to undermine our confidence in the jury's verdict.” (quotation omitted)). A reasonable probability is “a reasonable chance and not merely an abstract possibility.” Richardson v. Super. Ct., 43 Cal.4th 1040, 77 Cal.Rptr.3d 226, 183 P.3d 1199, 1205 (2008) (adopting same standard in the context of its own post-conviction DNA-testing statute).

¶ 9. When determining if the petitioner has shown a reasonable probability of a different outcome, a court must take into account all of the evidence before the jury, considering the trial as it actually unfolded. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052. In the context of an ineffective-assistance-of-counsel claim, the United States Supreme Court has offered the following guidance for reviewing the factual record:

Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelmingrecord support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Id. at 695–96, 104 S.Ct. 2052.

¶ 10. We take this opportunity to clarify that a petitioner seeking post-conviction DNA testing under the Innocence Protection Act does not need to show by a “preponderance of the evidence that there is a reasonable probability” of a different outcome. See In re Grega, 2003 VT 77, ¶ 7, 175 Vt. 631, 833 A.2d 872 (mem.). The difference in standards may be subtle, but is nonetheless of sufficient importance to warrant the U.S. Supreme Court's explicit clarification that the reasonable probability standard is a less onerous one than a preponderance of the evidence standard. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (“The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of cou...