In re Trombley

IN_RE_TROMBLEY.92-257; 160 Vt. 215; 627 A.2d 855


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 92-257


 In re Michael Trombly                        Supreme Court

                                              On Appeal from
                                              Rutland Superior Court

                                              February Term, 1993

 Richard W. Norton, J.

 Matt Harnett of Lorentz, Lorentz & Harnett, Rutland, for petitioner-
    appellant

 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
    Attorney General, Montpelier, for respondent-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      MORSE, J.     This case presents the issue whether a criminal defense
 lawyer renders ineffective assistance of counsel by requesting at the
 client's insistence that the court not instruct the jury that attempted
 manslaughter is a lesser included offense of attempted murder.  We hold
 defendant's counsel represented defendant properly and affirm.
      Defendant was convicted in 1984 of attempted first degree murder in
 violation of 13 V.S.A. { 2301 after he shot a Montpelier police officer in
 the leg.  His defense was diminished capacity due to aggravated stress and
 intoxication.  Defendant took a direct appeal to this Court, State v.
 Trombly, 148 Vt. 293, 532 A.2d 963 (1987), and we affirmed his conviction,
 holding that it was not plain error for the court to fail to instruct the
 jury on voluntary manslaughter.  Id. at 302-03, 532 A.2d  at 969.  Defendant
 then petitioned for post-conviction relief in superior court and his peti-
 tion was denied.  The superior court concluded that defendant had the right
 to advocate that the instructions cover the elements of attempted first and
 second degree murder only.  Defendant wanted to limit the choice of offenses
 presented to the jury, believing that inclusion of any manslaughter instruc-
 tion would increase the probability of conviction.  If the jury did not find
 beyond a reasonable doubt that he intended to kill or place the police
 officer in mortal danger, the jury would be left with one alternative,
 acquittal.  Because a murder conviction required proof of intent, the option
 of manslaughter, defendant feared, might prompt the jury to settle for
 manslaughter.
      At the jury charge conference, the parties discussed whether
 manslaughter, either voluntary or involuntary, should be instructed.  The
 trial court and the prosecution both agreed that a charge including the
 lesser included offenses would be appropriate.  For example, the court
 stated, "there is caselaw to the effect that the court has an affirmative
 obligation on its own to charge all appropriate lesser included offenses
 whether anybody asks for it or not."  Defense counsel responded by
 objecting to the inclusion of a manslaughter instruction stating his
 client's preference that if the State failed to prove intent, the jury would
 not have the option to compromise its verdict.  Although defense counsel
 advised defendant to seek a manslaughter component in the jury charge, he
 forcefully argued his client's position, urging the court to instruct only
 on first and second degree murder.  The court complied with defendant's
 preference.
      Defendant, under both the Sixth Amendment to the United States
 Constitution and Chapter I, Article 10 of the Vermont Constitution, was
 afforded the guarantee of reasonably effective assistance of counsel.  In re
 Ross, ___ Vt. ___, ___, 605 A.2d 524, 526 (1992).  A defendant who raises a
 challenge to his conviction on the basis of ineffective assistance of
 counsel must meet a two-part test.  Defendant must show by a preponderance
 of the evidence, first, that counsel's conduct fell below the prevailing
 standard of competency, and second, that this failure to meet the standard
 contributed to the adverse outcome.  In re Hanson, No. 91-066, slip op. at 5
 (Feb. 26, 1993).
      We need not address the second part of the test, because we find
 counsel's representation was within the range of acceptable assistance when
 he advocated his client's chosen strategy to limit the possible verdicts.
 As noted by the superior court, once defense counsel consults fully with the
 client about lesser included offenses, "the defendant should be the one to
 decide whether to seek submission to the jury" of those offenses.  This view
 is supported by the American Bar Association Standards for Criminal Justice,
 where it is stated:
             Certain decisions relating to the conduct of the case
           are ultimately for the accused and others are ultimately
           for defense counsel.  The decisions which are to be made
           by the accused after full consultation with counsel are:
                (i) what plea to enter;
                (ii) whether to waive jury trial; and
                (iii) whether to testify in his or her own behalf.

 The Defense Function { 4-5.2(a).  The commentary to the standard is directly
 applicable to this case.
             It is also important in a jury trial for the defense
           lawyer to consult fully with the accused about any
           lesser included offenses the trial court may be willing
           to submit to the jury. Indeed, because this decision is
           so important as well as so similar to the defendant's
           decision about the charges to which to plead, the
           defendant should be the one to decide whether to seek
           submission to the jury of lesser included offenses.  For
           instance, in a murder prosecution, the defendant, rather
           than the defense attorney, should determine whether the
           court should be asked to submit to the jury the lesser
           included offense of manslaughter.

      We recognize that many trial tactics are ultimately defense counsel's
 call, id. { 4-5.2(b), but those that directly relate to the crime upon which
 the jury may rest its verdict generally are within the defendant's decision-
 al control.
      Our holding that a defendant may control the tactical decision made in
 this case does not mean, obviously, that the trial court must agree with it.
 If the court concludes that defendant's strategy advocated by counsel for
 dispensing with certain jury instructions on lesser included offenses is so
 ill-advised that it undermines a fair trial, the court may instruct the jury
 according to its considered view.  Such a ruling involves discretion, and so
 long as the court's exercise of discretion is not abused, we will not dis-
 turb it.
      Other courts have recognized that it may be a valid defense strategy
 for defendant to forgo an instruction on manslaughter in a murder case,
 despite that the facts may warrant its inclusion.  Furthermore, where the
 omission is part of trial strategy and the defendant does not request such
 charge or object to its omission, the court need not include the charge on
 its own volition.  See, e.g., People v. Sowinski, 498 N.E.2d 650, 659 (Ill.
 App. Ct. 1986) (improper for court to give manslaughter instruction where
 defendant did not want jury to consider "compromise" verdict and its
 inclusion "risked the possibility of interrupting defense counsel's
 strategy"); Hagans v. State, 559 A.2d 792, 804 (Md. 1989) (whether to
 instruct on  lesser included offense is question of strategy best left to
 the parties); Commonwealth v. Carver, 600 N.E.2d 588, 594-95 (Mass. App.
 Ct. 1992) (where defendant, upon counsel's advice, chose "all or nothing"
 strategy and did not request manslaughter charge, no error in omission).
 Here, the matter was discussed on the record, and defendant's strategy, at
 his request, was followed by the court.
      Defendant argues that despite the ABA Standard "a criminal defendant
 cannot insist that the court and counsel ignore the law."  Defendant cor-
 rectly points out that diminished capacity is not a complete defense to
 attempted murder, requiring acquittal.  State v. Wheelock, ___ Vt. ___, ___,
 609 A.2d 972, 977-78 (1992) (diminished capacity mitigates the degree of
 homicide from murder to manslaughter rather than excuse the crime
 altogether).  In effect, defendant argues that defense counsel could not
 successfully advocate, and the trial court could not consider, the
 possibility that no manslaughter instruction be given.
      We have already held that the trial court's consideration of, and
 acquiescence to, defendant's request was not reversible error.  State v.
 Trombly, 148 Vt. at 301-03, 532 A.2d  at 968-69.  It follows that relief
 should not be available in this proceeding merely by changing the label from
 plain error to ineffective assistance of counsel, unless defense counsel
 improperly advised defendant or undertook substandard practices at trial.
 The record, however, reflects competent advice and representation
 throughout.  In short, absent an objection or a showing of plain error, the
 court is not under the threat of reversal for an omission in the charge.
 Id.
      The fact that the court's lack of instructions on attempted man-
 slaughter gave the defendant the opportunity for an acquittal based on his
 diminished capacity defense is hardly unfair.  Defendant was thereby given a
 defense to which he was not entitled.  In hindsight, a strategy aimed at
 maximizing the chances of a verdict of manslaughter might have been
 preferable to one aimed at the more remote chance of acquittal.  In the
 final analysis, however, it was defendant's choice to advocate one or the
 other and his lawyer adhered to the proper standard of practice by
 advocating his position.
      Affirmed.




                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice