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.
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In re Jamie L. Ross, Sr. Supreme Court
On Appeal from
Chittenden Superior Court
September Term, 1991
Francis B. McCaffrey, J.
E. M. Allen, Defender General, and Jeffrey Dworkin, Prisoners' Rights
Office, Montpelier, for petitioner-appellee
Edward D. Sutton, Chittenden County Deputy State's Attorney, Burlington, for
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Gibson, J. The State appeals a superior court order granting
petitioner Jamie Ross post-conviction relief in the form of a new trial.
The court found petitioner had been denied effective assistance of counsel
during his sexual assault trial because his counsel failed to object to
expert testimony concerning the credibility of the child victim. We affirm.
In 1985, petitioner was convicted and sentenced to eight-to-fifteen
years in prison after a two-day trial. The State introduced evidence to
show that petitioner had sexually assaulted the victim, his niece, in her
parents' home when she was seven, two years earlier. The defense denied
any assault and argued that the victim had been assaulted repeatedly by her
father. (FN1) The State called as witnesses the victim, her younger brother,
two foster parents who cared for her after she had been removed from her
parents' home, and a psychologist with experience in child sexual abuse
issues, Dr. Pamela Langelier.
In a pretrial motion, petitioner's counsel sought to prevent the State
from introducing expert testimony on the credibility of the victim. Seven
months before trial, a judge other than the trial judge denied the motion on
the basis that expert testimony would aid the jury because the credibility
of the victim was at issue. Nonetheless, at a conference in chambers
immediately prior to trial, the trial judge asked the State whether Dr.
Langelier would testify "on the ultimate issue of credibility." The State
responded, "No, she's not. . . . The State in no way is going to solicit
testimony on the credibility issue. We understand how bad that is."
Dr. Langelier, however, proved to be an eager witness. During direct
examination, she testified that part of her job was to "address the question
whether or not children are telling the truth." In her opinion, she
continued, children the victim's age generally do not fantasize about
sexual contact with adults, and they do not "go around accusing their
parents or other people of doing something to them." Concerning
petitioner's alleged assault, Dr. Langelier concluded that the victim
"remembered it clearly and it looks like it was twice if not more."
Petitioner's counsel did not object, thus failing to preserve the
issues relating to Dr. Langelier's testimony for review on appeal. As a
result, defendant could argue on appeal only that the testimony had been
improperly admitted under the stringent plain-error standard. State v.
Ross, 152 Vt. 462, 468, 568 A.2d 335, 339 (1989); State v. Senecal, 145 Vt.
554, 557-58, 497 A.2d 349, 351 (1985).
In State v. Catsam, 148 Vt. 366, 370-71, 534 A.2d 184, 187-88 (1987),
decided nearly two years after petitioner's trial, this Court ruled that the
State could not introduce expert testimony supporting the credibility of
child sexual-abuse victims, either by direct comment or by describing a
class of truthful witnesses and then placing the witness in that class. We
held that, "[s]ince this type of evidence may unduly influence the jury's
judgment with regard to the truthfulness of the complaining witness, it is
not admissible." Id. at 371, 534 A.2d at 188. In Ross, we stated, "In
effect, the testimony [of Dr. Langelier] was a summation of the witness's
own observations and records, including what the victim herself had said
about what had happened to her. To the extent that the testimony amounted
to a comment on the credibility of the victim, it would ordinarily be
inadmissible." Ross, 152 Vt. at 468, 568 A.2d at 339.
We nonetheless found that admission of the testimony did not constitute
plain error, which would be found "'only in a rare and extraordinary case
where the error is an obvious one,' and only if the error affects
substantial rights of the defendant." Id. (quoting State v. Ramsay, 146 Vt.
70, 75, 499 A.2d 15, 18 (1985)).
Petitioner now argues he was denied effective assistance of counsel, to
his prejudice, by his trial counsel's failure to object to Dr. Langelier's
testimony, and thus is entitled to a new trial. See In re Pernicka, 147 Vt.
180, 183, 513 A.2d at 616, 618 (1986); In re Kasper, 142 Vt. 31, 35, 451 A.2d 1125, 1126 (1982).
A criminal defendant's right to reasonably effective assistance of
counsel is guaranteed by both the Sixth Amendment to the United States
Constitution and by Chapter I, Article 10 of the Vermont Constitution. We
apply the same test under each constitution to determine whether the right
to reasonably effective assistance of counsel has been violated. Kasper,
142 Vt. at 35-36, 451 A.2d at 1126. A defendant who challenges the adequacy
of his counsel's assistance must show by a preponderance of the evidence,
first, that counsel's conduct fell below the prevailing standard of a
reasonably competent attorney, Strickland v. Washington, 466 U.S. 668, 687-
88 (1984); Pernicka, 147 Vt. at 182, 513 A.2d at 617, and, second, that
counsel's failure to meet that standard prejudiced the defendant such that
there is "'a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'"
Pernicka, 147 Vt. at 184, 513 A.2d at 618 (quoting Strickland, 466 U.S. at
694). Evaluation of defense counsel's performance must be "highly
deferential" to the judgment of counsel in light of the circumstances at the
time. Strickland, 466 U.S. at 689. It is easy to find fault with the
benefit of hindsight, and courts must thus accord counsel's conduct "a
strong presumption that [it] falls within the wide range of reasonable
professional assistance." Id.
After a hearing on petitioner's post-conviction relief claims, the
superior court found that petitioner's criminal trial counsel knew of the
developing body of law prohibiting expert testimony on the credibility of
child sexual-abuse victims and that Dr. Langelier was prone to deliver such
testimony; that defense counsel have a duty to preserve issues for appeal;
that petitioner's counsel did not take advantage of opportunities to do so
by objecting or moving for a mistrial; and that there was no tactical reason
to support this failure. On this basis, the superior court concluded that
the failure of petitioner's counsel to object to Dr. Langelier's testimony
fell below the standard of a reasonably competent attorney at the time of
trial and that there was a reasonable probability that the outcome of
petitioner's trial would have been different had counsel made a timely
objection to Dr. Langelier's testimony.
Whether the failure to object in the present case was conduct that fell
below the standard of a reasonably competent defense attorney in Vermont in
1985 is a close question, but we think evidence supports the superior
court's conclusion. See In re Fadden, 148 Vt. 116, 119, 530 A.2d 560, 562
(1987) (post-conviction findings measured by clearly erroneous standard).
The State argues that petitioner's counsel could not have known, at the time
petitioner was convicted, that this Court would so strongly condemn expert
testimony on the credibility of child sexual-abuse victims. Although it is
true that Catsam was not yet decided, petitioner's counsel himself had
raised and briefed the issue before petitioner's trial, citing authority
relied upon in the Catsam decision. Further, even the State had conceded
immediately before trial that such testimony was improper. On these facts,
we find no error in the court's conclusion.
The evidence also supports the conclusion that there was a reasonable
probability that the outcome of petitioner's trial would have been different
had counsel challenged Dr. Langelier's testimony. The State presented her
testimony at the end of the its case, and the testimony prejudiced
petitioner by improperly bolstering the victim's testimony. See Catsam, 148
Vt. at 370-71, 534 A.2d at 187-88. The fact that the conviction in a
companion case was overturned on the basis of defense counsel's objection to
the admission of similar expert testimony underscores our conclusion. See
footnote *. In that case, we were unable to hold that the error was
harmless. Inasmuch as the record herein contains no stronger extrinsic
evidence of guilt, we must agree with the trial court. See id. at 372, 354 A.2d at 188 (admission of this type of expert testimony might be harmless in
a case in which there was ample extrinsic evidence of guilt).
Because petitioner has met the test set forth in Strickland and
Pernicka, he is entitled to a new trial.
FOR THE COURT:
FN1. The father was convicted in July 1985 of sexually assaulting his
daughter. At his trial, defense counsel objected to the admission of
expert testimony concerning the credibility of the victim, and the
conviction was reversed by this Court in an unpublished entry order. State
v. Ross, No. 86-017 (Vt. Mar. 8, 1988). The order held that admission of
the expert testimony was improper and could not be considered harmless error.