Mecier, In re, 378-81

Decision Date05 April 1983
Docket NumberNo. 378-81,378-81
CourtVermont Supreme Court
PartiesIn re Richard D. MECIER.

Nancy E. Kaufman, Montpelier, for petitioner-appellant.

James P. Mongeon, Rutland County State's Atty., Rutland, for respondent-appellee.

Before BILLINGS, C.J., HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.

BILLINGS, Chief Justice.

Following our decision in State v. Mecier, 138 Vt. 149, 412 A.2d 291 (1980), upholding defendant's convictions on two counts of aggravated assault in the shooting of his wife and daughter, defendant filed a petition for post-conviction relief. 13 V.S.A. § 7131 et seq. As grounds defendant claimed he was denied his right to effective assistance of counsel guaranteed under the sixth and fourteenth amendments to the United States Constitution, in that his trial attorneys refused to allow him to testify, neglected to call all potential witnesses in his behalf, and failed to cross-examine certain witnesses in the manner urged by defendant. The Orange Superior Court found after hearing that defendant's attorneys "exercised more than the degree of skill and knowledge which then prevailed in the legal community," and on that basis denied defendant's petition.

On appeal, defendant raises three questions for our consideration: (1) whether the superior court applied an erroneous standard of proof regarding defendant's claim that he was denied the right to testify; (2) whether his trial attorneys provided ineffective assistance of counsel by failing to cross-examine defendant's wife regarding her allegations that defendant threatened and physically abused her; and (3) whether his trial attorneys provided ineffective assistance of counsel by failing to challenge those portions of the prosecutor's closing argument which were inflammatory and prejudicial. We will take each of these contentions in turn.

Defendant's first contention is that the superior court applied an erroneous standard of proof in determining his claim that he was denied the right to testify, thus depriving him of a proper consideration of this claim. He argues that the court below should have recognized that the right to testify in one's own behalf is guaranteed by the United States and Vermont Constitutions, and that such right is so fundamental that it may be waived only by the defendant personally, upon an in-court showing that he has done so knowingly and voluntarily. Instead of determining whether defendant had constitutionally waived his right to testify, he urges, the trial court considered the question as one of counsel effectiveness, determining that defendant's trial attorneys exercised reasonable competence in advising defendant not to take the stand.

At the outset we note that as the moving party in this matter defendant had the burden of establishing the infirmity of his conviction, In re Kasper, 142 Vt. 31, ---, 451 A.2d 1125, 1126 (1982); In re Stewart, 140 Vt. 351, 361, 438 A.2d 1106, 1110 (1981), which burden necessarily included framing the issues to be determined in the post-conviction proceeding. A review of the record and transcript of that proceeding reveals that defendant framed the issue of his failure to testify not as a question of constitutional waiver, but rather as one of constitutional right to effective assistance of counsel.

The memorandum in support of the post-conviction petition presents the issue as follows:

The petitioner asserts that his conviction should be reversed and his sentence set aside because he was denied his right to effective assistance of counsel, which right is guaranteed to him under the 6th Amendment, as applied to the States through the 14th Amendment, to the United States Constitution.


Counsel had the duty to present evidence in the petitioner's favor, object to inadmissible evidence offered by the State, and cross-examine the State's witnesses to determine the truth of their testimony. The petitioner's former attorneys failed in all three of these duties. They failed to put on the stand four witnesses, including the petitioner, who could have given testimony to support the petitioner's claim that he was too intoxicated to form the intent for aggravated assault. They failed to object to immaterial and inflammatory issues testified to by the State's witnesses.

This Court must analyze the facts of the case in the light of In re Cronin, supra [133 Vt. 234, 336 A.2d 164, 1975] to determine that the petitioner's attorneys did not provide the customary skill and knowledge which normally prevail at the time and place of the trial.

The issue was likewise framed as a question of counsel competence in defendant's Request for Findings of Fact and Conclusions of Law, and such framing was evident throughout the post-conviction hearing.

It is the long-standing policy of this Court to forego review of an issue based on a legal theory different from that which was raised below. In re Estate of Boisvert, 135 Vt. 69, 71, 370 A.2d 209, 210-11 (1977). "Where it appears from the record that the trial below proceeded upon a certain theory, acquiesced in by court and counsel, the theory thus adopted, whether right or wrong, becomes the law of the case." Merrill v. Reed, 123 Vt. 248, 252, 185 A.2d 737, 740 (1962) (citing Senna v. Gero, 118 Vt. 331, 336, 109 A.2d 344, 347 (1954)); Skoll v. Cushman, 111 Vt. 160, 164, 13 A.2d 180, 181-82 (1940). For this reason, we are precluded from reviewing this claim unless it constitutes glaring error, that is, error of the type "so grave and serious that it 'strikes at the very heart of [defendant's] constitutional rights.' " State v. Towne, 142 Vt. 241, ---, 453 A.2d 1133, 1134 (1982) (quoting State v. Smith, 140 Vt. 247, 257, 437 A.2d 1093, 1098 (1981), and State v. Blaine, 133 Vt. 345, 349, 341 A.2d 16, 19 (1975)); State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142, 145 (1969).

Defendant urges us to hold that the right to testify is secured by both the federal and Vermont constitutions, that it may only be waived by the defendant personally, upon an in-court finding that he has done so knowingly and voluntarily, see, e.g., Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)), and that the failure of the superior court to inquire into the validity of defendant's waiver below was glaring error. However, on the facts in this case it is unnecessary to cut so wide a cloth, and given our rule against needlessly deciding constitutional issues, Herald Association, Inc. v. Ellison, 138 Vt. 529, 533, 419 A.2d 323, 326 (1980); Lague, Inc. v. State, 136 Vt. 413, 416, 392 A.2d 942, 944 (1978); Eurich v. Coffee-Rich, Inc., 130 Vt. 537, 544, 298 A.2d 846, 850 (1972), we decline to do so here.

Instead we hold that whether the right to testify is constitutional or statutory, see 13 V.S.A. § 6601, where, as here, defendant has acquiesced in the competent advice of his attorney not to take the stand, and has failed to assert his right at or before the trial, he is deemed to have waived it. That is, while the decision to testify is one ultimately for the defendant to make, the right is " 'subject to the limitation that the defendant make his objection known at trial, not as an afterthought.' " People v. Knox, 58 Ill.App.3d 761, 767, 16 Ill.Dec. 182, 187, 374 N.E.2d 957, 962 (1978) (quoting State v. Tillery, 107 Ariz. 34, 38, 481 P.2d 271, 275, cert. denied, 404 U.S. 847, 92 S.Ct. 151, 30 L.Ed.2d 84 (1971)).

A significant number of other state courts have imposed this "contemporaneous request" standard upon defendants in criminal trials. See, Polster, The Dilemma of the Perjurious Defendant: Resolution, Not Avoidance, 28 Case W.Res.L.Rev. 3, 12 (1977). The Illinois Supreme Court considered the hazards of allowing defendants, who on advice of counsel chose not to testify, later to attack their convictions on this basis:

By hypothesis, in every case in which the issue is raised, the lawyer's advice [not to testify] will in retrospect appear to the defendant to have been bad advice, and he will stand to gain if he can succeed in establishing that he did not testify because his lawyer refused to permit him to do so.

People v. Brown, 54 Ill.2d 21, 24, 294 N.E.2d 285, 287 (1973). And the Supreme Court of Arizona noted:

Were defendant's desires to testify in his own behalf as strong and unrelentless as he now claims they were, he would not have maintained his silence throughout the entire trial. He might very easily have directed his request to the court or made motion to have his attorney removed.

State v. Tillery, supra, 107 Ariz. at 37, 481 P.2d at 274.

The Supreme Court of Wisconsin justified its adoption of this rule in the following way:

We do not believe that either this Court, or trial courts, are in a position to determine whether the criminal defendant accepted counsel's advice, or was deprived of the right to testify when the trial record is silent on the question.

... We in no way mean to hinder the defendant's right to testify. If counsel determines that it is not advisable for the defendant to testify and the defendant acquiesces in that decision, then the right will be deemed waived. If on the other hand the defendant at the time of the trial raises his objection in the record before the trial court, he must be given the opportunity to testify. We will not determine when "advice" stops and the refusal to permit a defendant to testify begins in post conviction proceedings based on a silent record.

State v. Albright, 96 Wis.2d 122, 134-35, 291 N.W.2d 487, 493, cert. denied, 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 223 (1980). Accord, State v. Ring, 131 Ariz. 374, 378, 641 P.2d 862, 866 (1982); State v. Smith, 299 N.W.2d 504, 506 (Minn.1980); Ingle v. State, 92 Nev. 104, 106, 546 P.2d 598, 599 (1976); People v. Guillen, 37 Cal.App.3d 976, 984-85, 113 Cal.Rptr. 43, 48 (1974); Hughes v....

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