State v. Lund

• Decision Date: 16 January 1998
• Docket Number: No. 96-056,96-056
• Citation: 718 A.2d 413,168 Vt. 102
• Parties: STATE of Vermont v. James H. LUND.
• Court: Vermont Supreme Court

Page 413

718 A.2d 413

STATE of Vermont v. James H. LUND.

No. 96-056.

Supreme Court of Vermont.

Jan. 16, 1998.

Motion for Reargument Denied

Feb. 18, 1998.

Motion to Vacate Denied

June 15, 1998.

Jan R. Paul, Essex County State's Attorney, St. Johnsbury, for Plaintiff-Appellee.

Charles S. Martin of Martin & Associates, Barre, and James H. Lund, pro se, Bradford, PA, for Defendant-Appellant.

Before AMESTOY, C.J., and DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

JOHNSON, Justice.

Defendant appeals his conviction and sentence for having sexually assaulted his stepdaughter. He claims that (1) the trial court abused its discretion by denying his motion for a continuance on the eve of trial; (2) his trial counsel's ineffectiveness prejudiced his defense and thus requires reversal of his conviction; (3) the court erred in denying his request to have an unnoticed witness testify to impeach the victim's testimony; (4) the court erred in refusing to grant a mistrial when a State's witness testified that defendant had refused, upon advice of counsel, to give police a statement; and (5) the court erred in enhancing his sentence based on his lack of remorse without first offering him immunity from further prosecution in the event he prevailed on appeal and obtained a new trial. Defendant also contends in a supplemental pro se brief that (1) the trial court's failure to ensure that he was returned to Vermont to allow adequate time to prepare a defense with his new counsel violated his right to a fair trial; (2) the court's failure to conduct an inquiry into defendant's pretrial request to dismiss his new attorney was reversible error; and (3) the State misrepresented relevant facts to the court and withheld exculpatory evidence, resulting in unfavorable and prejudicial evidentiary rulings. We affirm without addressing defendant's ineffective-assistance-of-counsel claims.

In November 1994, the court assigned defendant a public defender after the State filed an information charging him with sexual assault on a minor. Shortly thereafter, defendant was incarcerated in a federal prison in Pennsylvania on federal firearms charges. For the most part, the sexual assault case remained dormant until July 1995, when defendant himself filed a formal request asking that he be tried within 180 days or that his case be dismissed under the Interstate Agreement on Detainers Act. In August 1995, defense counsel filed a motion to dismiss for lack of a speedy trial. The court denied the motion to dismiss, but set the matter to be tried within 180 days. Eventually, the trial was set to begin on December 5, 1995. In October 1995, defendant sought appointment of new counsel, and his attorney filed a motion to withdraw. On November 7, the court granted the public defender's motion to withdraw and assigned a new attorney for defendant. On December 5, the day the jury draw began, defendant's new attorney sought a one-week continuance for further trial preparation. The court denied the motion, and the trial began the next day. Following a two-day trial, the jury found defendant guilty of sexual assault on a minor.

I.

A.

To the extent that defendant is arguing that he was entitled to a continuance because he had his first face-to-face meeting with his new attorney only the day before the trial began, we find no error in the court's decision to deny the continuance. Substitute counsel had nearly five weeks to prepare for a relatively uncomplicated trial that would hinge on whether the jury believed defendant or his stepdaughter. Indeed, at the hearing on the first public defender's motion to withdraw, the public defender assured the court that the case was a simple and straightforward credibility contest between defendant and his stepdaughter, and that new counsel could prepare an adequate defense in the month remaining before trial. In response to the prosecutor's concern that defendant was manipulating the system by demanding a speedy trial and then firing his attorneys, the court ordered that the new counsel be assigned and begin work on the case immediately. The new attorney made no request for an extension of time until the day of the jury draw, and even then he made no specific showing of what he needed to do in the ensuing week to assure that he could prepare an adequate defense. Further, defendant has not contended that telephone or facsimile communication was unavailable during the month before his trial began, ^* that face-to-face contact between him and his attorney was necessary for preparation of his defense, or that such contact was impossible, if necessary. Given these facts and circumstances, and the last-minute timing of the request, we cannot conclude that the trial court's decision to deny the motion to continue was a clear abuse of discretion requiring reversal. See State v. Hanlon, 164 Vt. 125, 128, 665 A.2d 603, 605 (1995) (Supreme Court will not interfere with trial court's ruling on motion to continue if there is any reasonable basis to support it).

B.

At the heart of both of defendant's briefs is his claim that he received ineffective assistance of counsel. Because the record is insufficient for this Court to assess whether his trial counsel adequately defended him, this claim must be raised, if at all, in the context of a petition for post-conviction relief. See State v. Judkins, 161 Vt. 593, 594-95, 641 A.2d 350, 352 (1993) (mem.) (generally, question of ineffective assistance of counsel is limited to petitions for post-conviction relief; unless question of ineffective representation is raised at trial and ruled on by trial court, there is no record on which Supreme Court can determine if trial judge erred in weighing competence of counsel in context of specific errors asserted).

In his pro se supplemental brief, defendant suggests that the trial court had an opportunity to review his counsel's effectiveness, but failed to do so. According to defendant, because he sought to fire his second attorney during jury selection the day before trial, the trial court was required to make an inquiry regarding his attorney's effectiveness when he attempted to fire him the day of the jury draw. We disagree. On the morning of the jury draw, when defendant learned that his trial counsel had failed to provide the prosecutor with a witness list, he blurted out that he wanted to fire the attorney. The court would not tolerate defendant's interruptions because he was represented by counsel. In the end, however, the court allowed defense counsel to present all but one of the witnesses he wanted to call. Thus, defendant's last-minute attempt to fire his new attorney did not give the trial court an opportunity to determine whether the attorney would be able to present an effective defense. See State v. Ahearn, 137 Vt. 253, 264, 403 A.2d 696, 703 (1979) ( "defendant's assertions of insufficient preparation ... do not serve as evidence of the facts as he claims them to be"). Indeed, defendant acknowledges in his brief that trial counsel's ineffectiveness became evident as the trial unfolded. Because we have no record from which to judge defendant's claims of ineffective-assistance-of-counsel, we will not consider them on direct appeal from the proceeding in which the assistance was allegedly ineffective. See In re Moskaluk, 156 Vt. 294, 298, 591 A.2d 95, 97 (1991); cf. State v. Bacon, 163 Vt. 279, 296-97, 658 A.2d 54, 66 (1995) (ineffective-assistance-of-counsel claims may be addressed on direct appeal if claim was raised and adjudicated at trial).

II.

Defendant also argues that the trial court erred in denying his motion to present the testimony of a sheriff who had interviewed the victim, and that the prosecutor improperly took advantage of the excluded testimony in closing argument. These arguments are based on the following facts. In late October 1994, when defendant's stepdaughter reported that defendant had sexually assaulted her, she also informed state officials that both her mother and father had physically abused her and her two younger sisters. In an effort to attack the stepdaughter's credibility, defendant called to the stand a doctor who testified that he had found no evidence of physical abuse after examining the younger girls on November 2, 1994 at the request of the Department of Social and Rehabilitation Services. Defense counsel also elicited testimony during cross-examination of the stepdaughter that defendant had kicked one of the younger sisters into a wall in July 1994. During the second day of trial, defense counsel informed the court that he had just learned that in November 1994 the stepdaughter told the investigating sheriff that defendant had kicked her little sister into a wall only a few days earlier, on October 29, 1994, not back in July as she had testified at trial. Apparently, the stepdaughter's statement was recorded in the sheriff's affidavit. Defense counsel wanted to have the sheriff testify to undercut the stepdaughter's credibility. According to defense counsel, the sheriff's testimony would suggest that the stepdaughter had changed her story as to when the kicking incident occurred to lessen the impact of the doctor's testimony that he had found no evidence of physical abuse on November 2, 1994. This would further suggest that if the stepdaughter had lied about defendant physically abusing her sisters, she probably also lied about defendant sexually abusing her. Noting that defense counsel had failed (1) to notify the State of its intention to call the sheriff even though counsel had access to the sheriff's affidavit before trial, see V.R.Cr.P. 16.1(c), and (2) to confront the stepdaughter with the prior inconsistent statement during his cross-examination of her, see V.R.E. 613(b) (extrinsic evidence of prior inconsistent statement is not admissible unless witness is afforded opportunity to explain or deny statement), the court concluded that allowing the sheriff...