In re Williams

Decision Date11 July 2014
Docket NumberNo. 12–179.,12–179.
CourtVermont Supreme Court
PartiesIn re Eric WILLIAMS.

Allison N. Fulcher of Martin & Associates, Barre, for PetitionerAppellant/Cross–Appellee.

Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for RespondentAppellee/Cross–Appellant.

Present: REIBER, C.J., DOOLEY and CRAWFORD, JJ., and MORSE and BURGESS JJ. (Ret.), Specially Assigned.

Opinion

CRAWFORD, J.

¶ 1. This post-conviction relief (PCR) case arises from a tragic fire in an apartment house that caused the deaths of three young children and their grandmother. Petitioner, a resident in the same building, pled guilty to four counts of involuntary manslaughter and was sentenced to serve forty to sixty years in prison. He was nineteen years old at the time of the offense.

¶ 2. Petitioner seeks to vacate his conviction on grounds of ineffective assistance of counsel. Following a twelve-day trial, the civil division ruled that although petitioner's defense attorney provided adequate representation in connection with his guilty pleas, the assistance he provided to his client during sentencing fell below minimum standards of representation. Both petitioner and the State have appealed the court's decision. We affirm the court's decision that petitioner failed to demonstrate ineffective assistance of counsel prior to his guilty plea. We also affirm the ruling that his representation during the sentencing phase was inadequate and that he was prejudiced by his attorney's failure to provide more than perfunctory assistance. We agree with the PCR court that petitioner's sentence must be vacated and a new sentencing hearing scheduled.

¶ 3. The fire started at approximately 3:00 a.m. on October 2, 1999 at the Sarah Marie Apartments in Milton, Vermont. It was a

fast-moving fire that originated in the first-floor apartment shared by petitioner and his roommates. It spread to the exterior wooden staircase which served the second-floor apartment. The staircase was destroyed and the upstairs apartment was cut off. The upstairs tenant and her three grandchildren who were staying with her overnight all died.

¶ 4. The police fire investigator concluded that the fire had started in petitioner's room in a wastebasket close to his bed. Petitioner initially denied any responsibility for the fire. In the course of a second police interview, he stated that he caused the fire by lighting paper in his waste basket. His statement provided no explanation of why he might have committed such an act. Petitioner was arrested at the conclusion of the interview. He has been incarcerated since October 4, 1999.

¶ 5. The State originally charged petitioner with four counts of first-degree murder and four counts of arson causing death. Petitioner was assigned a public defender, Eric Selig. Attorney Selig retained a fire expert who examined the entire police file on the fire investigation and found no fault with the investigation or its conclusions.

¶ 6. Attorney Selig also hired a psychologist to evaluate petitioner. After conducting a six-hour examination and interview, the psychologist concluded that petitioner had a relatively low IQ of 86 and limited academic ability. He determined that petitioner was competent to stand trial and was sane at the time of the offense. There were no indications of significant mental illness.

¶ 7. In addition to the two expert witnesses, defense counsel took depositions of numerous witnesses including the investigating officers. One of the fact witnesses deposed was Josh Quesnel, who was in petitioner's ground-floor apartment the night the fire started. Mr. Quesnel recalled in his deposition that shortly after the fire was extinguished, petitioner said to him that the fire “was all [petitioner's] fault” and that [petitioner] didn't mean for anything, for any of this to happen.”

¶ 8. In the fall of 2000, defense counsel filed motions to suppress petitioner's statements to police and to dismiss the arson charges on the ground that there was no evidence of the requisite level of intent. A hearing on both motions was delayed when Attorney Selig took a new job out of state. Public defender Jerry Schwarz entered his appearance for petitioner in December 2000.

Hearings on the pending motions were continued until February 2001.

¶ 9. Before the motions were heard, the parties entered into a plea agreement. The agreement provided for the amendment of the original charges to four counts of involuntary manslaughter. The maximum sentence allowed was fifty to sixty years to serve. The defense was free to argue for a sentence of as little as twenty to sixty years to serve. In February 2001, petitioner entered a guilty plea on all four counts.

¶ 10. Sentencing occurred in May 2001 following submission of a presentence investigation report (PSI). The PSI recommended a sentence of forty to sixty years based on the need for punishment. After hearing arguments by the prosecutor and defense counsel, as well as testimony from the family and friends of the victims and from petitioner, the court imposed a sentence of forty to sixty years in prison. Petitioner subsequently filed this PCR petition.

¶ 11. In January 2012, the PCR court issued a detailed decision. The court concluded that petitioner had not met his burden of proof on the claim concerning his representation prior to the guilty plea. On the issue of sentencing, however, the court concluded that defense counsel had provided no more than a perfunctory performance which fell below the standards required of a criminal defense attorney. The court found that the shortcomings in representation were sufficiently serious that they resulted in prejudice to petitioner. It vacated the sentence and ordered a new sentencing hearing for petitioner. Both sides have appealed the PCR court's decision.

¶ 12. We apply a deferential standard of review to the decision of the PCR court. We review factual findings for clear 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 attorney's performance during the period leading up to his guilty plea. First, he contends that defense counsel should have retained a fire expert to conduct an independent cause-and-origin investigation. Second, he contends that the defense should have filed a motion to dismiss three of the four arson charges on grounds of multiplicity. Finally,

he contends more generally that defense counsel should not have advised him to plead guilty.

A. Fire Expert

¶ 14. The State completed its fire investigation within a day of the fire. Detective Sergeant Hatch concluded that the fire originated in petitioner's bedroom, that it was not an electrical fire caused by a short circuit, and that it started in the area of petitioner's wastebasket. In response, Attorney Selig retained Michael Lane, a fire investigator. Attorney Selig located Mr. Lane through a referral from within the public defender system. He sent Mr. Lane the Hatch report and photos, videos, depositions, and other documentation concerning the fire. In March 2000, Mr. Lane travelled from his office in Putnam, New York to speak with Attorney Selig in person. Mr. Lane told Attorney Selig that he had no criticism of Sergeant Hatch's investigation or of his conclusion that the fire originated in petitioner's wastebasket. At the PCR trial, Mr. Selig testified that he had confidence in Mr. Lane's expertise and conclusions. He was reluctant to hire additional experts because they might “actually help the State's case.”

¶ 15. By the time of the PCR trial, a fire investigator with a different view from Mr. Lane had turned up. Douglas Carpenter was originally hired by family members of the victims of the fire to testify in a civil damages case, and was subsequently retained as an expert witness by petitioner. Mr. Carpenter conducted an on-site investigation of the fire in December 2000. His interpretation of the damage pattern led him to conclude that the fire was electrical in origin and had started inside the wall, not in petitioner's wastebasket. After completing his assignment in the civil case, he volunteered to complete a report summarizing his findings which he sent to PCR counsel.

¶ 16. The PCR court concluded that Attorney Selig's decision to cease his search for a fire expert after Mr. Lane offered no criticism of the police investigation fell within the range of reasonable practice. The court noted that there were sound strategic reasons to be cautious about developing expert testimony which favored the State. A site visit could have occurred only with the knowledge of the State, and Mr. Lane had already formed an initial opinion which was unhelpful to the defense. The court observed that a defense attorney who has received one adverse opinion does not have a duty to continue to shop until he locates

an expert witness who agrees with his position. Finally, although the court found merit in both Mr. Carpenter's and Sergeant Hatch's views, he determined that Sergeant Hatch's opinion was more likely correct. On this record, the trial court found no basis for a violation of the lawyer's duty.

¶ 17. We agree with the trial court's analysis. Having hired a competent, experienced expert, a defense lawyer cannot be criticized for accepting that person's opinion. There is no duty to continue to search for someone who will take the other side. See, e.g., Marcrum v. Luebbers, 509 F.3d 489, 511 (8th Cir.2007) (“Where counsel has obtained the assistance of a qualified expert ... and nothing has happened that should have alerted counsel to any reason why the expert's advice was inadequate, counsel has no obligation to shop for a better opinion.”). The fact that petitioner eventually found an expert who offered an...

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