In re Cohen

Annotate this Case
IN_RE_COHEN.92-268; 161 Vt. 432; 640 A.2d 34

[Opinion Filed 21-Jan-1994]

[Motion for Reargument Denied 08-Mar-1994]

 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. 92-268

 In re Bruce Cohen                            Supreme Court

                                              On Appeal from
                                              Orleans Superior Court

                                              October Term, 1993

 David T. Suntag, J.

 Robert Appel, Defender General, and Anna Saxman, Appellate Attorney,
   Montpelier, for petitioner-appellant

 Thomas M. Kelley, Drug Prosecutor, Montpelier, for respondent-appellee

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

      GIBSON, J.   Petitioner appeals the denial of his petition for post-
 conviction relief alleging ineffective assistance of counsel.  We affirm.
      Petitioner pled guilty to possession of marijuana, and subsequently was
 convicted of cultivation of marijuana following a ten-day jury trial.  This
 Court affirmed the conviction.  See State v. Cohen, 157 Vt. 654, 599 A.2d 330 (1991) (mem.).  Petitioner then sought post-conviction relief, pursuant
 to 13 V.S.A. { 7131, alleging ineffective assistance of counsel.  The trial
 court denied the petition, and petitioner appeals, claiming the court erred
 by concluding that counsel's representation was not ineffective regarding
 (1) his failure to challenge a warrantless air search, (2) his failure to
 object to the prosecutor's closing remarks, and (3) his investigation of the
 facts.  Petitioner also claims the court misinterpreted our holding in State


 v. Dupaw, 134 Vt. 451, 365 A.2d 967 (1976), when it ruled on what must be
 shown in order to challenge a search warrant affidavit.
      In a post-conviction relief hearing, "the ultimate focus of inquiry
 must be on the fundamental fairness of the proceeding."  Strickland v.
 Washington, 466 U.S. 668, 696 (1984); In re Bentley, 144 Vt. 404, 409, 477 A.2d 980, 983 (1984) ("[P]ost-conviction relief proceedings do not address
 the guilt or innocence of the defendant, but the fairness of the proceedings
 leading to conviction and incarceration.").  To obtain post-conviction
 relief based on a claim of ineffective assistance of counsel, a petitioner
 must make two showings:  (1) that counsel's representation fell below an
 objective standard of reasonableness, and (2) that the deficiencies in
 counsel's representation were prejudicial.  Strickland, 466 U.S. at 687-88;
 In re Ringler, 158 Vt. 118, 121, 605 A.2d 522, 523 (1992).  "Judicial
 scrutiny of counsel's performance must be highly deferential" to the
 judgment of counsel in light of the circumstances existing at the time.
 Strickland, 466 U.S.  at 689; In re Ross, 158 Vt. 122, 126, 605 A.2d 524, 526
 (1992).  To demonstrate prejudice, "defendant must show that there is a
 reasonable probability that, but for counsel's unprofessional errors, the
 result of the proceeding would have been different.  A reasonable
 probability is a probability sufficient to undermine confidence in the
 outcome."  Strickland, 466 U.S.  at 694; accord In re Ringler, 158 Vt. at
 121, 605 A.2d  at 523 (applying the Strickland standard).  If reasonableness
 has been demonstrated, the court need not determine whether defendant
 suffered prejudice.  Strickland, 466 U.S.  at 697.  We will uphold the
 decision of the court unless there is clear error.  In re Hanson, ___ Vt.
 ___, ___, 623 A.2d 466, 468 (1993).


      Petitioner contends that the trial court erred in concluding that
 counsel's decision not to challenge the warrantless air search under the
 Vermont Constitution was reasonable and did not prejudice him.  In August
 1985, a state police officer conducted an aerial surveillance of
 petitioner's property.  He observed a patch of suspected marijuana about 100
 yards from petitioner's home and what appeared to be a path leading from the
 house to the patch.  Based on this observation and two other supporting
 affidavits, a search warrant was issued for the house and property.
 Petitioner claims the aerial surveillance of his property violated Chapter
 I, Article 11 of the Vermont Constitution and that counsel's failure to
 challenge the search constituted ineffective assistance.
      The information available to counsel was that the plane was about 700
 to 900 feet above ground level during the aerial surveillance and that the
 patch of suspected marijuana was not within the curtilage of the home.  See
 Oliver v. United States, 466 U.S. 170, 180 (1984) (curtilage is area
 immediately adjacent to home which individual reasonably expects will
 remain private).  Counsel concluded that the aerial observation yielded no
 evidence that could be suppressed and that there was no evidence that the
 flight violated the airspace protected by the United States or Vermont
      The court found that, at the time of petitioner's trial in 1987, the
 law was clear that "open fields" were not protected by the Fourth Amendment.
 See id. at 181 ("[A]n individual has no legitimate expectation that open
 fields will remain free from warrantless intrusion by government
 officers.").  It concluded there was no reason to believe the Vermont


 Supreme Court would have reached a contrary conclusion at that time.  See
 State v. Byrne, 149 Vt. 224, 226-28, 542 A.2d 276, 278 (1988) (following
 Oliver in applying Fourth Amendment).(FN1) Further, the court found that
 petitioner had not shown that the airplane flew in airspace protected by
 either the Fourth Amendment or Chapter I, Article 11 of the Vermont
 Constitution.  Indeed, a review of the record reveals no evidence that the
 airplane flew over petitioner's property at all or that it flew low enough
 to violate petitioner's reasonable expectation of privacy even if the flight
 had taken place directly over the property.  Cf. Florida v. Riley, 488 U.S. 445, 451 (1989) (plurality) (no violation of Fourth Amendment where
 helicopter flew at altitude of 400 feet); United States v. DeBacker, 493 F. Supp. 1078, 1081 (W.D. Mich. 1980) (no violation of Fourth Amendment where
 airplane flew at altitudes of 200 feet and 50 feet).  We find no error in
 the court's findings, or in its conclusion that counsel's failure to file a
 motion to suppress was not unreasonable.
      Petitioner claims the trial court erroneously concluded that he was not
 prejudiced by counsel's failure to object to the closing remarks of the
 prosecutor.  During petitioner's trial in 1987, the State's Attorney
 referred to a defense witness as a liar, called petitioner a "flatlander,"
 said the defense was trying to confuse the jury, and described marijuana
 cultivation and intimidation of the community as a "nightmare."


      The trial court found that petitioner's arguments had been considered
 and rejected in the hearing on his motion for a new trial, and that this
 Court had found no plain error on review.  The trial court also found that
 counsel's decision not to object was a strategic decision based on a reason-
 able belief that repeated objections would negatively influence the jury.
 Although the court ruled that the State's Attorney's appeal to the fears and
 emotions of the jury was improper, citing State v. Trombly, 148 Vt. 293,
 301, 532 A.2d 963, 968 (1987), cert. denied, 486 U.S. 1029 (1988), the court
 found that the overwhelming evidence against petitioner did not present a
 close case for the jury, and therefore concluded that the failure of counsel
 to object did not prejudice petitioner.  The evidence supports the court's
 findings, see In re Fadden, 148 Vt. 116, 119, 530 A.2d 560, 562 (1987)
 (findings in post-conviction relief proceeding "will stand if supported by
 any credible evidence"), and petitioner has failed to show a reasonable
 probability that objections to the remarks of the prosecutor would have
 changed the trial result.
      Petitioner contends that the trial court erroneously concluded that
 counsel's investigation of the facts relating to his alibi defense and
 counsel's questioning of a defense witness were reasonable.
      Petitioner claims that counsel failed to investigate his alibi and his
 finances adequately and that this failure amounted to ineffective
 assistance.  "[C]ounsel has a duty to make reasonable investigations or to
 make a reasonable decision that makes particular investigations unnecessary.
 . . . The reasonableness of counsel's actions may be determined or substan-


 tially influenced by the defendant's own statements or actions. . . . [W]hat
 investigation decisions are reasonable depends critically on such informa-
 tion."  Strickland, 466 U.S.  at 691.
      Petitioner told counsel that he could not have been responsible for the
 cultivation of the marijuana because he was in California until late May of
 1985 and could not have planted or tended the marijuana.  He expressed no
 uncertainty in recalling his whereabouts.  During the trial, however, the
 prosecutor introduced evidence that petitioner cashed a $6,000 check in
 Vermont on April 29, 1985.
      Petitioner's adamant assertion to counsel that he was in California
 until late May was corroborated by his wife and a friend, Dr. Paul Seigel.
 Further, counsel spoke with other witnesses who confirmed that petitioner
 had not been seen in Vermont during the spring of 1985. Counsel also
 obtained records indicating that petitioner had undergone medical treatment
 in California on April 12, 1985.  The court concluded that counsel's
 investigation did not fall below the level of a reasonably competent
 defense attorney.  We agree that counsel's investigation was reasonable,
 especially where petitioner's own untruthfulness provided the State's
 opportunity for rebuttal.
      Petitioner also claims that counsel failed to investigate his finances
 adequately because counsel failed to uncover the evidence of the $6,000
 check that the State used to impeach petitioner's alibi.  As part of his
 trial strategy, counsel needed to show that petitioner had income other than
 proceeds from the alleged sale of marijuana.  Counsel's investigation
 produced unrebutted testimony and documentary evidence of the source of
 petitioner's legitimate income, which included a substantial stock transfer


 from petitioner's wealthy brother, lack of a home mortgage, and modest
 living expenses.  The court concluded that the extent of counsel's investi-
 gation was reasonable in light of the defense strategy.  This conclusion is
 supported by the findings, which are not clearly erroneous.
      At trial, petitioner's counsel questioned Dr. Seigel, who had known
 petitioner for a long time, whether he considered petitioner to be a
 substance abuser.  This question opened the door for the State to ask Dr.
 Seigel about petitioner's prior conviction for possession of marijuana in
 New York in 1973 or 1974.  Petitioner claims that counsel's opening the door
 to impeachment by the prior conviction was ineffective assistance.
      Counsel's strategy at trial was to show that, although petitioner may
 have used drugs recreationally, he was not a substance abuser.  As part of
 this strategy, petitioner pled guilty to the companion charge of
 possession.  Counsel's decision for petitioner to plead guilty was based on
 the strong evidence obtained during the search of petitioner's house and the
 damage to petitioner's credibility in the eyes of the jury if he denied
 knowledge of the marijuana found in his house.  Counsel also decided to
 elicit evidence from Dr. Seigel that he had known petitioner for twenty
 years and that the doctor had expertise in the area of substance abuse.  Dr.
 Seigel testified that he had never witnessed any behavior of petitioner
 that was consistent with substance abuse.  The court concluded that
 counsel's strategy was reasonable and, in light of this strategy, that
 counsel's questioning of Dr. Seigel was reasonable.
      Even if counsel erred by opening the door to impeachment, however, the
 court concluded that petitioner failed to show prejudice, as required.  See


 In re Ringler, 158 Vt. at 121, 605 A.2d  at 523.  The court found that Dr.
 Seigel's testimony was not completely rebutted by the State.  After learning
 of the prior New York conviction, Dr. Seigel testified that his opinion
 about petitioner had not changed, and petitioner presented unrebutted
 testimony that he had received a certificate of relief, which he described
 as being in the nature of a pardon.  Finally, petitioner pled guilty to
 possession of marijuana in 1985, so evidence of a prior conviction for
 possession added little to the State's proof of cultivation.  We agree with
 the court's conclusion that counsel's questioning was reasonable, but even
 if it was not, any prejudice to petitioner was insufficient to undermine
 confidence in the outcome of the case.
      Petitioner also claims counsel was ineffective for failing to request a
 hearing, wherein it could have been shown that the affidavits underlying the
 search warrant contained "relevant misstatements," State v. Dupaw, 134 Vt.
 at 453, 365 A.2d  at 968, thus rendering the warrant invalid.  Petitioner
 argues that Dupaw established the right of defendants to challenge the
 veracity of warrant affidavits,  and set forth "relevant misstatements" as
 the standard by which to address such challenges.  Petitioner misreads
      Dupaw involved an arrest warrant that was ruled invalid because it was
 "utterly devoid of factual support."  Id. at 452, 365 A.2d  at 968.  This
 Court held that if physical evidence obtained during an arrest is sup-
 pressed because of an invalid arrest warrant, the police officers' testimony
 regarding their examination of that evidence must also be suppressed.  Id.
 at 454, 365 A.2d  at 969.


      In this case, petitioner argues that the affidavits contained
 misstatements about the shape of petitioner's house and the existence of a
 path leading from the house to the marijuana patch.  Further, petitioner
 claims one affidavit contained a material omission because it did not
 identify the source of its information.  According to petitioner, because
 there are relevant misstatements in the affidavits, the remedy is to void
 the affidavits and exclude any evidence discovered in the search.
       In Dupaw, because of the false affidavit, the invalidity of the arrest
 warrant was uncontested; the issue therein was whether the exclusionary rule
 should be extended to cover indirect as well as direct products of an unlaw-
 ful arrest.  Here, the court found that, although the house was not "round,"
 or "circular-shaped," as described in the affidavits, but multi-sided, the
 balance of the description of the house and its location were accurate and
 that, even excluding the challenged statements, there was more than suf-
 ficient and accurate description of petitioner's residence to support a
 finding of probable cause.  The path was described as an "apparent" path,
 and the court found there was no necessary inconsistency in the statements
 that required disclosure of the source of the information.  Petitioner has
 failed to demonstrate that the affidavits contained material misstatements
 or that they were "utterly devoid of factual support."  We find no error in
 the court's refusal to apply Dupaw as urged by petitioner.

                                    FOR THE COURT:

                                    Associate Justice

FN1.    As recognized by the post-conviction relief court, this Court has
 departed from the federal "open fields" doctrine since petitioner's trial.
 See State v. Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991).  We do not,
 however, render any opinion today on whether counsel's strategy would
 necessarily have changed in the light of Kirchoff.  For purposes of
 reviewing the court's holdings in this case, Kirchoff is irrelevant.