Pray, In re

• Decision Date: 01 April 1975
• Docket Number: No. 203-73,203-73
• Citation: Pray, In re, 336 A.2d 174, 133 Vt. 253 (Vt. 1975)
• Court: Vermont Supreme Court
• Parties: In re Gary PRAY.

Page 174

336 A.2d 174

133 Vt. 253

In re Gary PRAY.

No. 203-73.

Supreme Court of Vermont.

April 1, 1975.

Robert E. West, Defender Gen., Gregory A. McKenzie, Deputy Defender Gen., Montpelier, for plaintiff.

M. Jerome Diamond, Atty. Gen., William Keefe, Asst. Atty. Gen. Montpelier, for defendant.

Before BARNEY, C. J., SMITH, KEYSER and DALEY, JJ., and SHANGRAW, C. J. (Ret.), Assigned.

BARNEY, Chief Justice.

This is a post-conviction proceeding following a conviction of murder in the first degree. A mandatory appeal in the matter was suffirmed in State v. Pray, 130 Vt. 613, 298 A.2d 859 (1972). In the proceedings below on this petition relief was denied, but coupled with a recommendation that review be had here. This is that review.

The crucial issues may be summarized as two: the adequacy of the representation of the defendant at and prior to trial, and the medicated condition of the defendant at and before trial with respect to his competency to stand trial. Two other questions relating to claimed specific evidentiary errors will be dealt with under the first issue.

This case was reviewed and decided as a post-conviction matter with great care below. It raises, for this Court, issues of great concern. To fully substantiate the judgment we reach requires some prefatory remarks.

The factual details of the crime involved are set out in State v. Pray, supra, 130 Vt. 613, 298 A.2d 859. Since the manner of conducting the defense, and its adequacy, have been put in issue by new counsel, it is essential to evaluate the circumstances facing trial counsel in preparing a defense. Necessarily, the facts concerning the actual shooting could be said to be unchallengeable. One of the victims, the defendant's mother-in-law, survived, and the whole affair was witnessed by two other persons, one the defendant's wife and the other his sister-in-law. There was no question of identification, and the defendant himself called the police to say he had shot two people. He had set out in his car to find his father-in-law, found him on the road, followed him into his driveway, accosted him, and after an argument, went back to his car, took out a loaded rifle, and shot him.

It was the decision of counsel to defend on the ground of insanity. It seems to be conceded by all parties, and found as a fact by the lower court, that this was the only possible defense.

Tactically, such a defense poses many dilemmas of serious propertions to counsel, and almost always calls for judgment determinations on matters fraught with danger for his client. It may not be enough to minimize the criminal event itself by restrained cross-examination; it may, in some cases, seem necessary to emphasize and highlight the brutality and savagery of the event to establish, at least in the lay mind of a juror, that the criminal acts were irrational. Evidence assumed to add to such a conclusion may be deliberately allowed in, even though otherwise objectionable. Counsel must be free to make such decisions without threat, and courts must be free to accept them. The search for a perfect trial may be not only endless and costly, but unjust. See M. Fleming, The Price of Perfect Justice (1974).

Thus, asserted errors raised by other counsel in post-conviction proceedings must be evaluated in the light of the full picture of the defense, and not extracted from context. This is the procedure properly followed by the lower court.

In this light the contentions of error and shortcoming must be examined here, and we will first consider together the allegations of specific errors claimed in allowing evidence in unchallenged, and the general claim of lack of effective assistance of counsel. Although counsel was employed at the expense of the State, he was in fact the attorney selected by the defendant's family.

Bearing in mind that the whole concern of counsel in this case was quite soundly directed at the insanity defense, the alleged improper evidence, consisting of testimony from the defendant's estranged wife, must be tested with that in mind. As the court below indicated, the testimony in support of premeditation did not come only from this source. To deal with this kind of testimony in a way to minimize the degree of the crime might well be, in the judgment of counsel, to reveal to the jury a lack of confidence in the claim of insanity, even though the marital privilege claim lay at hand for exclusionary use. These questions are close and are difficult, and call for the fair judgment of counsel, unfectered by a concern for his personal professional welfare. To have it any other way would have the effect of depriving defendants whose situation is most desperate of those risky defenses which may offer the only road to a favorable judgment by the jury. We cannot find in the admission of the testimony of the wife in this case a basis for a retrial.

Even less so can we can find cause for a new trial in the psychiatric testimony in question. The claim is that the psychiatrists were permitted to testify to matters excludable under 13 V.S.A. § 4816(c) and the holding in State v. Miner, 128 Vt. 55, 70-71, 258 A.2d 815 (1969). This is not to say that the rule is any less stringent than we have previously held, but, instead, it is to be viewed in the light of the circumstances of this case. We agree with the lower court that relief is not justified on the basis of...