In re Barrows

In re Barrows (2004-082)

2007 VT 9

[Filed 26-Jan-2007]


       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.


                                  2007 VT 9

                                No. 2004-082


  In re Keith Barrows                            Supreme Court

                                                 On Appeal from
                                                 Chittenden Superior Court

                                                 March Term, 2006


  Matthew I. Katz, J.

  Matthew Valerio, Defender General, Seth Lipschutz, Prisoners' Rights
    Office, and Gregory Sampson, Law Clerk, Montpelier, for
    Petitioner-Appellant.

  Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
    Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  BURGESS, J.  Petitioner Keith Barrows appeals the superior
  court's order granting summary judgment for the State and dismissing his
  petition for post-conviction relief (PCR).  He argues that: (1) he was
  unlawfully denied expert services in pursuing PCR; (2) the trial court
  judge should have recused himself by virtue of the judge's participation in
  the underlying criminal case; and (3) the trial court did not adequately
  consider petitioner's allegations before dismissing the case.  We affirm.
   
       ¶  2.  Petitioner was charged with burglary and sexual assault, in
  violation of 13 V.S.A. §§ 1201 and 3253, for entering a home in the early
  morning of January 16, 1995, and subjecting one of the occupants to
  repeated nonconsensual sexual acts.  On January 31, 1995, Judge Katz issued
  an arrest warrant for petitioner on these charges and a warrant to search
  petitioner's home.  That same day, Judge Katz presided over an inquest
  proceeding related to the case.  The following day, petitioner was
  arraigned before Judge Katz and ordered held without bail.  Judge Katz
  denied petitioner's subsequent motion to review bail.  In October 1997, the
  case was tried before a jury, Judge Pineles presiding, and petitioner was
  found guilty on both counts.  Petitioner was sentenced to fifty-five years
  to life.  Petitioner appealed his convictions and sentence to this Court,
  and we affirmed.  State v. Barrows, No. 98-085 (Vt. Aug. 21, 2000)
  (unreported mem.).  Petitioner now challenges these convictions through the
  present PCR proceeding. 

       ¶  3.  Prior to the January 1995 offenses, petitioner had been
  charged with a burglary committed on October 31, 1994, in which a man
  entered the bedroom of a St. Michael's College student and briefly
  restrained the student before fleeing.  Judge Katz issued a warrant to take
  a sample of petitioner's DNA in connection with the investigation of that
  crime in December 1994.  The DNA sample was subsequently used to connect
  petitioner to the January 1995 crimes.  At arraignment for the October
  crime, Judge Katz ordered petitioner released with conditions.  Judge Katz
  later received, but did not act on, a letter from the father of the St.
  Michael's student asking that the petitioner be held in jail pending trial. 
   
       ¶  4.  In the present case, petitioner dismissed his assigned
  counsel and filed a lengthy pro se petition for PCR that recited alleged
  facts and violations of his due-process rights-ninety-four points in all. 
  The State moved for summary judgment and dismissal, contending that many of
  the allegations did not present a basis for PCR, and those claims that
  might were not supported by any evidence.  In response, petitioner moved
  for expert and investigative services to: (1) aid in his claim of
  ineffective assistance of counsel; (2) review the DNA evidence; (3) perform
  tests on the rape kit swabs to look for evidence of spermicidal cream; and
  (4) locate and interview witnesses.  Describing the motion as a
  "scattershot request," the superior court, Judge Katz presiding, denied
  defendant's motion for services.  In a separate order filed the same day,
  the court granted the State's motion for summary judgment, stating:

    Petitioner lists vast categories of evidence.  But shows not one
    admissible fact which would cast doubt on guilt/conviction.  E.g.,
    ¶ 4a - witnesses who saw him with victim in "5 different
    establishments."  Yet not even 1 such place is named.  Summ[ary]
    judgment "smokes out" whether, indeed, there is such evidence. 
    Here, petitioner actually presents nothing.

  Petitioner appealed. (FN1)

       ¶  5.  This Court reviews a grant of summary judgment de novo,
  employing the same standard as the trial court.  Weale v. Lund, 2006 VT 66,
  ¶ 3, __ Vt. __, 904 A.2d 1191 (mem.).  To obtain summary judgment, the
  moving party must demonstrate that there are no genuine issues of material
  fact and that it is entitled to judgment as a matter of law.  Id.; V.R.C.P.
  56(c)(3).
   
       ¶  6.  Petitioner claims a right to expert and investigative
  services under the Public Defender Act's (PDA) provision entitling needy
  defendants or prisoners to "necessary services and facilities of
  representation," 13 V.S.A. § 5231(2).  A needy defendant has a statutory
  right to these services at state expense, regardless of whether the person
  is pro se or represented by counsel, so long as the person shows that the
  services are "necessary to his defense."  State v. Wool, 162 Vt. 342, 349,
  648 A.2d 655, 660 (1994).  Showing necessity requires more than a bare
  assertion of need; it requires that the specific purpose and nature of the
  expert assistance be demonstrated and a further showing that an adequate
  case cannot be made absent such assistance.  Id. at 350, 648 A.2d  at 660. 
  In the context of PCR, this means showing how the assistance advances the
  argument that petitioner's trial was fundamentally flawed.  See In re
  LaBounty, 2005 VT 6, ¶ 7, 177 Vt. 635, 869 A.2d 120 (explaining that
  petitioner claiming ineffective assistance of counsel must show that, but
  for counsel's errors, there is a reasonable probability that result would
  have been different); State v. Boskind, 174 Vt. 184, 191, 807 A.2d 358, 365
  (2002) (citing In re Rebideau, 141 Vt. 254, 257, 448 A.2d 144, 146 (1982)
  ("[P]ost-conviction relief is not a vehicle for reexamining a defendant's
  guilt or innocence, but is rather designed to correct fundamental trial
  errors . . . .")).  In Wool, the Court held that the defendant did not make
  a sufficiently specific showing of need for an expert rebuttal witness when
  the defendant did not specify which parts of the State's expert witness
  testimony he was seeking to refute.  162 Vt. at 349-50, 648 A.2d 660. 
  Petitioner distinguishes Wool, contending that his request for expert
  assistance in four areas-legal expertise, DNA analysis, chemical analysis,
  and witness investigation-was sufficiently specific to demonstrate
  necessity under the statute.  
   
       ¶  7.  The State responds first by arguing that the PDA does not
  provide for expert and investigative services to pro se petitioners in PCR
  proceedings.  The State asserts, correctly, that there is no constitutional
  requirement to provide PCR petitioners with either counsel or services and
  that the right to such services is entirely statutory.  In re Gould, 2004
  VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632.  The State also notes that a 2004
  amendment to the PDA limited the availability of counsel in PCR cases to
  only those that the assigned attorney considers to be nonfrivolous.  2003,
  No. 157 (Adj. Sess.), ' 10 (amending 13 V.S.A. ' 5233(a)(3)).  The amended
  section, however, concerns only representation; it does not speak to
  provision of expert or investigative services.  Wool makes clear that under
  the PDA the assignment of  counsel and provision of other litigation
  support services are treated separately, so that waiver or denial of one
  does not preclude entitlement to the other.  162 Vt at 348, 648 A.2d  at
  659-60.  None of the State's arguments directly address the plain language
  of ' 5231 that a person "being detained under a conviction of a serious
  crime, is entitled . . . [t]o be provided with the necessary services and
  facilities of representation."  We thus look to see whether petitioner
  demonstrated necessity.

       ¶  8.  Petitioner's motion expressed the need for a legal expert to
  aid in his claims of ineffective assistance of counsel.  These claims range
  from general incompetence of all lawyers who worked on the case, to
  petitioner's trial attorney having one or more conflicts of interest, to a
  physical altercation between petitioner and his trial attorney, to a
  conspiracy between the State, defense attorney, and trial judge to have
  petitioner convicted, among others.  Yet petitioner's motion did not
  connect the request for a legal expert to any of the allegations other than
  a general statement that such expert was needed to address the question of
  incompetence.  Petitioner maintains that under In re Grega, 2003 VT 77, 175
  Vt. 631, 833 A.2d 872 (mem.), an expert is necessary to make any
  meritorious ineffective assistance of counsel claim and that denial of his
  request for a legal expert placed him in an "untenable catch-22 situation"
  of not being able to make a claim without a legal expert and not being able
  to get a legal expert without a meritorious claim. 
   
       ¶  9.  Petitioner is incorrect.  It may be that "[o]nly in rare
  situations will ineffective assistance of counsel be presumed without
  expert testimony."  Grega, 2003 VT 77, ¶ 16 (affirming denial of PCR when
  petitioner failed to provide expert testimony on several ineffective
  assistance of counsel claims).  Nevertheless, setting aside the question of
  whether some or all of petitioner's claims fall into the rare category of
  those where an expert is not necessary, petitioner's reading of Grega would
  require that a motion for expert legal assistance be granted pro forma
  whenever there is a claim of ineffective assistance of counsel, obviating
  any demonstration of necessity in such instances.  Petitioner's argument
  fails to distinguish between the burden of proof to win a claim on the
  merits-to which the comment in Grega applies-and the burden to demonstrate
  necessity for expert services that petitioner faced in this case.  To
  demonstrate necessity for services, petitioner did not have the burden of
  proving his ineffective assistance claim, for which expert testimony is
  often required.  Rather, petitioner needed to describe how a legal expert
  would assist petitioner to prove that specific shortcomings in his
  representation at trial fell below the level of competence for the
  particular task at issue.  See Wool, 162 Vt. at 350, 648 A.2d  at 660
  (describing necessity test).  Petitioner failed to make any particularized
  showing, and his request for a legal expert was properly denied.  That
  petitioner's task in satisfying the necessity test may have been made more
  difficult by his election to represent himself in his PCR case and forgo
  the benefit of counsel does not lessen his burden to claim a particular
  deficiency, its adverse effect on his trial, and the need for an expert to
  prove it.  See Id., 648 A.2d  at 660-61 (applying standard necessity test to
  pro se defendant).
   
       ¶  10.  In other words, the expert assistance requested by petitioner
  did not comport to the allegations made.  No expert was necessary to prove
  the circumstances of the conflicts of interest described by petitioner,
  particularly when they were of such an obvious nature as conspiracy with
  the State and a physical altercation between himself and his counsel.  See
  Grega, 2003 VT 77, ¶ 16 (explaining that expert testimony is not
  necessary for all ineffective assistance of counsel claims).  Petitioner
  never connected his alleged conspiracies and conflicts to any deficient
  performance by his attorney in the course of representation-conduct that
  would be appropriate for expert evaluation.  Id. ¶¶ 14, 16.

       ¶  11.  We reach the same conclusion with respect to petitioner's
  requests for DNA, chemical, and investigative services.  Petitioner was
  somewhat more specific with these requests by identifying the factual
  claims for which these services would be of assistance.  Petitioner still
  failed, however, to show necessity.  Petitioner sought an expert to retest
  the DNA evidence collected by police and to review the procedures and
  testing done by the State.  But such evidence would pertain to the identity
  of the victim's assailant, an issue irrelevant to petitioner's claims of
  consent as set forth in his petition.  Further, petitioner provided no
  basis for believing there to be error in the State's tests or that a new
  test would adduce additional information.  See Wool, 162 Vt. at 350, 648 A.2d  at 660-61 (citing Hough v. State, 560 N.E.2d 511, 517 (Ind. 1990)
  (affirming denial of defendant's request for ballistics expert where
  defendant made no showing to suggest error in State's tests)).  

       ¶  12.  Petitioner's request for chemical analysis to test for the
  presence of spermicidal cream in the victim was similarly unsupported. 
  Petitioner alleged that the presence of such a substance-  suggested by
  police recovery of an open spermicidal cream container at the crime scene
  and the victim's admission that she used spermicidal cream as a method of
  birth control- would be relevant to show consent.  Petitioner's claim is
  speculative at best.  Even if the mere presence or use of birth control
  were relevant to consent, petitioner and his counsel made a reasonable
  decision not to advance a consent defense at trial in light of
  countervailing evidence of force.  The showing of necessity for chemical
  analysis thus falls short of demonstrating that the requested assistance
  would advance a claim of fundamental flaw and was, accordingly, properly
  denied.
   
       ¶  13.  Petitioner also failed to explain how an investigator's
  locating and questioning witnesses would advance a claim of fundamental
  flaw in the trial's outcome.  Petitioner's request to locate and interview
  friends, family and other witnesses who knew of his whereabouts on the
  night of the crime did not include sufficient specific factual allegations
  as to why an investigator was necessary.  Petitioner can, apparently,
  identify the claimed witnesses, anticipate what they would testify to, and
  obtain affidavits from them to that effect; the purpose of an investigator
  is unclear. Petitioner's request is no more than a bare assertion of need. 
  See Bailey v. Commonwealth, 529 S.E.2d 570, 578 (Va. 2000) ("Mere hope or
  suspicion that favorable evidence is available is not enough to require
  that [investigative] help be provided." (internal quotations omitted)).
   
       ¶  14.  Petitioner argues that Judge Katz should have recused himself
  from deciding petitioner's PCR case because of the judge's participation in
  the underlying criminal case.  Petitioner failed to raise this issue in the
  lower court, either before or after the judge issued his summary judgment
  decision, and we need not consider it on appeal.  In re B.L., 145 Vt. 586,
  590, 494 A.2d 145, 147 (1985).  Setting aside the procedural deficiency, we
  disagree with petitioner's contention in any event.  By statute, judges who
  preside over a criminal trial and sentencing are precluded from hearing an
  application for PCR in the same case.  13 V.S.A. ' 7131.  Though Judge Katz
  did not preside over petitioner's trial or sentencing, petitioner
  nevertheless argues that the judge's other involvement in the case,
  including the issuance of search warrants, initial arraignment, and receipt
  of a letter criticizing his order to release petitioner on conditions in
  the 1994 case, is analogous to presiding over trial or sentencing. 
  However, a PCR petition asks the court to find fundamental flaws in the
  criminal trial.  Disqualification of the trial judge from evaluating the
  same trial for fairness "ensures that an applicant receives a fair
  opportunity to be heard, and avoids even the appearance of bias."  In re
  Wilkinson, 165 Vt. 183, 186, 678 A.2d 1257, 1259 (1996).  This same concern
  is not present for a judge who sets bail or issues a search warrant when,
  as here, those decisions are not raised in the PCR and no basis is shown to
  expect that the pretrial judge will have any conflict in conducting a fair
  review of the trial. (FN2)  

       ¶  15.  Nor are we persuaded that Judge Katz's recusal was required
  by the Vermont Code of Judicial Conduct's provision concerning "personal
  bias or prejudice concerning a party . . . or personal knowledge of
  disputed evidentiary facts concerning the proceeding."  A.O. 10, Canon
  3(E)(1)(a).  Contrary to petitioner's assertions, any knowledge acquired by
  Judge Katz in the course of his participation in petitioner's case was not
  "personal" as contemplated by Canon 3, but was information acquired by
  judicial proceedings which judges are routinely expected to set aside in
  presiding over subsequent cases of an accused.  See In re Daniel E., 701 N.E.2d 408, 409 (Ohio Ct. App. 1997) ("What a judge learns in his judicial
  capacity, whether from pretrial proceedings, co-defendant pleas, or
  evidence presented in a prior case, is properly considered as judicial
  observations and creates no personal bias requiring recusal [under Canon 3
  of the Judicial Code of Conduct].").  We do not read Canon 3 to disqualify
  a judge for having any prior knowledge of a defendant or petitioner. 
  Indeed, if such were the standard for disqualification, few trial judges in
  this state would be able to preside over cases involving some of our
  district court's more frequent defendants.
       
       ¶  16.  Finally, petitioner argues that the trial court failed to
  fully evaluate the merits of his case before granting summary judgment. 
  Petitioner contends that the superior court failed in its "duty to make all
  findings necessary to support its conclusions, resolve the issues before
  it, and provide an adequate basis for appellate review," Secretary, Vermont
  Agency of Natural Resources v. Irish, 169 Vt. 407, 419, 738 A.2d 571, 580
  (1999), and that for PCR cases in particular, findings of fact are
  required.  In re Kraatz, 137 Vt. 533, 534, 409 A.2d 576, 576-77 (1979). The
  statement in Irish about the duty to make findings was made in the context
  of a trial court having held an evidentiary hearing to determine civil
  penalties for environmental violations but failing to make a finding as to
  an element that would have enhanced the penalties.  169 Vt. at 410, 419,
  738 A.2d  at 575, 580.  Similarly, in Kraatz the trial court had held an
  evidentiary hearing for a PCR case after which the court had an obligation
  to make findings of fact.  See 13 V.S.A. ' 7133 (providing that unless the
  files and records of the case conclusively show that the prisoner is
  entitled to no relief, the court shall hold an evidentiary hearing and make
  findings of fact and conclusions of law).
   
       ¶  17.  The applicable standard is different for ruling on summary
  judgment.  There, the trial court is called upon to determine whether there
  are any genuine issues of material fact and, if not, to render judgment as
  a matter of law.  V.R.C.P. 56(c)(3).  When summary judgment disposes of the
  case, we urge, but do not require, that the trial court list the facts that
  it has determined to be undisputed.  Crosby v. Great Atl. & Pac. Tea Co.,
  143 Vt. 537, 539, 468 A.2d 567, 568-69 (1983) (affirming grant of summary
  judgment despite the lack of a statement by trial court identifying the
  undisputed facts, but urging trial courts to include such statements to
  facilitate appellate review); cf. V.R.C.P. 56(d) (providing that when a
  case is not fully adjudicated on a motion for summary judgment, the court
  shall specify the facts that are uncontroverted).  These general rules of
  summary judgment are applicable to PCR cases.  13 V.S.A. ' 7133 (providing
  that judgment may be made based on the record and without a hearing if the
  record shows that the petitioner is not entitled to relief); see, e.g., In
  re Torres, 2004 VT 66, ¶ 15, 177 Vt. 507, 861 A.2d 1055 (mem.) (reversing
  summary judgment in PCR case on grounds that there remained disputed facts
  concerning ineffective assistance of counsel claim); In re Thompson, 166
  Vt. 471, 479, 697 A.2d 1111, 1116 (1997) (affirming summary judgment in PCR
  case).

       ¶  18.  We have reviewed the filings related to the State's motion
  for summary judgment.  The State, through its motion and accompanying
  statement of undisputed facts, addressed petitioner's claims.  The State
  responded to petitioner's varied claims of ineffective assistance of
  counsel by showing that some of petitioner's claims had previously been
  rejected on the merits and others were not raised at trial or on appeal. 
  For example, with respect to petitioner's claim that his counsel was
  ineffective for failing to present a consent defense, the district court
  had concluded that such a defense was not viable and that the petitioner
  had been aware that the defense was not going to be presented.  Petitioner
  also claimed that his trial attorney  had a conflict of interest because
  the attorney felt physically threatened by petitioner during the trial. 
  According to petitioner, the attorney later made a counter-claim for
  assault against him in a civil suit.  Taking the allegations as true,
  petitioner nevertheless failed to meet the applicable burden when no
  objection was raised at trial: to describe how the actual conflict of
  interest adversely affected his attorney's performance.  State v. Bacon,
  163 Vt. 279, 302, 658 A.2d 54, 69 (1995) (citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)).  As explained above, his claims of ineffectiveness
  are unsupported.  
   
       ¶  19.  Petitioner's claim that tests for the presence of spermicidal
  cream in the victim would support a defense of consent goes to both his
  claim of ineffective assistance of counsel and his claim of innocence.  As
  mentioned supra, ¶ 18, petitioner's attorney's decision not to pursue a
  consent defense was not a fundamental flaw when, as the trial court stated,
  such a defense was not viable and might even upset the jury, and petitioner
  was aware before trial that the defense would not be presented.  To the
  extent petitioner's spermicidal cream argument is a claim of innocence, a
  PCR proceeding "is not a vehicle for reexamining a defendant's guilt or
  innocence, but is rather designed to correct fundamental trial errors." 
  Rebideau, 141 Vt. at 257, 448 A.2d  at 146.  Further, even were we to
  consider the merits of petitioner's innocence claim, this evidence is so
  unconvincing, absent any other corroboration and in light of the
  countervailing evidence of force, that we would not expect the verdict to
  change.  See People v. Burrows, 665 N.E.2d 1319, 1324 (Ill. 1996)
  ("evidence offered by the defendant [in a PCR proceeding] must be of such
  convincing character that it would likely change the outcome of the
  trial").

       ¶  20.  The remaining claims were also unsupported.  Petitioner's
  claim of bias by the presiding trial judge was factually supported only by
  reference to adverse rulings by Judge Pineles and alleging that the judge
  spoke of petitioner "with a clearly biased tongue," without being more
  specific.  Petitioner's allegations are insufficient to maintain a claim of
  bias which requires showing, beyond adverse rulings, that the judge had
  improper motivations.  State v. Maunsell, 170 Vt. 543, 546-47, 743 A.2d 580, 585 (1999) (mem.).  Similarly, petitioner's claims of police
  misconduct and tomfoolery are equally unsupported by specific factual
  allegations.  Further, petitioner does not connect these claims to any
  statutory or constitutional violations that would entitle him to relief,
  other than his claim of an illegal investigative stop which was raised
  before trial in a motion to suppress and not brought forth as an issue on
  appeal.  See State v. Barrows, No. 98-085 (Vt. Aug. 21, 2000) (unreported
  mem.).  For issues that petitioner could have raised on direct appeal but
  failed to, he must demonstrate that he did not deliberately bypass the
  issues.  In re Hart, 167 Vt. 630, 630, 715 A.2d 640, 641 (1998) (mem.). 
  This burden was equally unmet.
   
       ¶  21.  In opposing summary judgment, petitioner included a
  statement of disputed facts-listing 279 alleged material facts-but the
  asserted facts were largely irrelevant or conclusory and did not respond to
  the State's assertions.  In his argument on appeal, petitioner has not
  identified a single genuine issue of material fact; nor have we been able
  to find one.  In the absence of any known issue that would preclude
  judgment as a matter of law, the State's motion for summary judgment was
  properly granted.

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  By stipulation of the parties, the case was remanded to the trial court
  to more explicitly identify the facts that it determined were not in
  dispute and reconsider whether there were genuine issues of material fact. 
  The trial court declined to be more explicit or reconsider.

FN2.  Petitioner did claim in his PCR petition that "all warrants involved in
  his case were defective," but attributes the defect to "police misconduct
  and/or poor police work" rather than judicial error.  Petition ¶ 28.  We
  find no basis for bias in Judge Katz's review of this allegation.