In re Ross

Annotate this Case
 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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 90-141


 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
    respondent-appellant



 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.
                                     I.
      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)).
                                     II.
      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.
      Affirmed.

                                         FOR THE COURT:



                                         ______________________________
                                         Associate Justice




 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.